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Pruzbul Article 2

Pruzbul 5776 and the Laws of Shemitas Kesofim – Part 2

Women, Messengers and Other Pruzbul Matters

 

How Does One Write a Pruzbul in the Best Way Possible?

In Part 1 of this article we learned that in order to properly write a Pruzbul in our times we are faced with two main issues that the Poskim grapple with.

  1. Does the Malveh have to actually appear in front of Bais Din to affect a Pruzbul?
  2. Is it required, as the Mechaber brings in the name of the Sefer HaTerumos, to appear in front of an esteemed Bais Din – one that either contains a gadol hador or was accepted by the community, which have the power to take money from one litigant and give it to the other one.

On a practical level most Ashkenazim appear in front of a Bais Din of Bnei Torah and do not seek the Bais Din Choshuv – the esteemed Bais Din.

What can Sefardim, who wish to follow the Mechaber and the Sefer HaTerumos opinion, do? It involves great difficulty to travel to  a Bais Din that is either accepted by the entire community or contains a gadol hador.Is there some alternative? What can an Ashkenazy,  who wishes to fulfill the Pruzbul, involving the Mitzva D’Rabbanan of Shemitas Kesofim which comes once in seven years, in the best way possible, do?

Rav Elyashiv Zt’l and Ybc’l Rav Moshe Shternbuch Shlita suggest that a Pruzbul be made on condition. The lender should declare verbally in front of a local Bais Din  he is giving over his loans to a distant Bais Din Choshuv. Alternatively, a signed letter indicating this, can be sent as well to a local Bais Din. When the local Bais Din is made aware of this verbal or written declaration they document this declaration. The malveh should then make a conditional declaration. He should state that if it is not necessary to actually appear in front of Bais Din then I already made a pruzbul with the distant esteemed Bais Din. If the Halacha turns out to be that it is necessary to appear in front of Bais Din, then I am now appearing in front of the local Bais Din for that purpose. In this manner the best possible way of performing the Pruzbul is accomplished without actually having to travel to the distant Bais Din Choshuv.

The above mentioned different methods of creating a Pruzbul will also explain the different texts that are found in various forms of current Pruzbuls.

 

May Relatives to Each Other or to the Malveh Sit on the Pruzbul Bais Din?

According to the opinions that a Bais Din Choshuv that is universally accepted for money matters is required, this would necessitate a kosher, learned Bais Din where the Dayanim cannot be related to one another, and even to the lender or borrower according to some opinions. However, according to the opinions that all that is required is a Bais Din of Bnei Torah, it is subject to a great machlokes haposkim if the judges can be related to one another or the lender and borrower. The same applies to whether the Pruzbul Bais Din could meet at night. Among other factors, we would take into consideration whether this needs to be a Bais Din Choshuv which does not regularly convene at night or a Bnei Torah Bais Din which could meet at night since the Bnei Torah Bais Din does not have the full stature of a functioning Bais Din.

 

Should a Woman Write a Pruzbul?

Women are also subject to the laws of shemitas kesofim. It follows, that a single, widowed or divorced woman that has outstanding loans should write a Pruzbul. The sefer Dinei HaSheviis HaSholem 31:21 quotes Rav Shlomo Zalman Auerbach Zt’l as saying that a wife who has outstanding loans owed to her by the bank and has an independent bank account or CD where solely her signature is required, should write a Pruzbul. Based on the laws of Even Haezer, it is recommended that all married woman who are primary breadwinners, especially if they were breadwinners at the time of marriage and have debts owed to them should write a Pruzbul. The wife’s husband or someone else can be her Shliach to appear in front of Bais Din on her behalf. There are Pruzbuls which contain a nusach text specifically for a husband acting on behalf of his wife.

 

Miscellaneous Pruzbul Issues

Many people think that they have not made loans and therefore have no need to write a Pruzbul. However, this is often not the case. If someone, for example, has money in a Jewish bank, although a Heter Iska will take care of the issue of Ribis, nevertheless, the person is still loaning money to the bank and therefore requires a Pruzbul. A store owner who allows customers to buy on credit is actually loaning them money and requires a Pruzbul in many situations.

If a loan was made after a Pruzbul was written then it is not covered by the Pruzbul. Since the institution of Pruzbul is predicated on giving over one’s loans to Bais Din, one cannot give over a loan that has not yet taken place.  Another Pruzbul will need to be written for the new loan. This is why the Pruzbul is made Erev Rosh HaShana so that it covers all the previously made loans as close to Rosh HaShana as possible. A possible solution for the store owner who has issued purchases on credit after writing his Pruzbul on Erev Rosh HaShana is for him to extend the loan repayment date to after Rosh HaShana. A Pruzbul is only necessary when the due date is before Rosh HaShana or no specific date for repayment has been given. The announcement by the store owner extending the loan repayment date need not be made with the knowledge of the borrower, according to Rav Y. S. Elyashiv Zt”l. It should, however, lechatchila be done in front of two kosher witnesses. If not possible, it should be done even in front of two passul witnesses, and bedieved can be done without any witnesses.

According to the Igros Moshe no Pruzbul is necessary if a loan was repaid by a check whose date is after Rosh HaShana. If the check was made for a date before Rosh HaShana it is subject to a dispute between the Poskim whether it is subject to Shemitas Kesofim or not.

A final issue concerns the fact that a Pruzbul can only be written if the loveh who has borrowed the money owns land, rents or has some room and board agreement. He must have some connection to land. What if someone lent money to a young bochur who has no connection of his own to owning land how can the Pruzbul be written? It is for this reason that some texts of the Pruzbul have a clause stating that being that the borrower has no land the lender is giving him a minute piece of land and now the Pruzbul can be properly written.

Suite of Pruzbul Forms

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