Prozbul

Based on a shiur by Rav Shlomo Levi

Translated by David Strauss

            At the end of the shemitta year, all debts that have come to term are cancelled.  Therefore, creditors are accustomed to draw up a prozbul on Erev Rosh Ha-shana of the eighth year (such as this year, on the eve of 5769), in order to prevent the remission of their debts.  The Mishna in Shevi'it explains:

A prozbul prevents the remission of debts in the shemitta year. This is one of the regulations made by Hillel the Elder. For he saw that people were unwilling to lend money to one another, disregarding the warning laid down in the Torah, "Beware lest there be an unworthy thought in your heart saying, ['The seventh year, the year of release, is at hand;' and your eye be evil against your needy brother, and you give him nothing]" (Shemot 15:9). He therefore decided to institute the prozbul.

The text of the prozbul is as follows: "I hand over to you, so-and-so, the judges in such-and-such a place, my bonds, so that I may be able to recover any money owed to me from so-and-so at any time I shall desire;" and the prozbul was to be signed by the judges or witnesses. (Shevi'it 10:3-4)

The Rambam rules:

Prozbul is only effective regarding shemitta in our time, which is by rabbinic decree. But when shemitta is by Torah law, prozbul is not effective. (Hilkhot Shemitta ve-Yovel 9:16)

            The Ra'avad (ad loc.) disagrees, arguing that, according to Rava, the enactment of prozbul applies even when shemitta is by Torah law, based on the rule of hefker bet din hefker, the court's authority to divest a person of his assets. In this shiur, I wish to summarize some of the principal points dealt with by the poskim with regard to prozbul.

I. How does PROZBUL WORK?

The Mishna in Shevi'it states:

One who lends money against a pledge and one who hands his bonds over to a court - the debt is not released.

            The source for this law is found in the Sifrei (Re'eh, sec. 113), which states:

"And whatsoever of yours is with your brother shall your hand release" (Devarim 15:3) – but not one who hands his bonds over to a court.

According to the Sifrei, the mitzva of debt remission applies to the individual, but not to the court.

Rashi and Tosafot disagree about how to understand prozbul. Regarding one who hands his bonds over to the court, Rashi writes (Makkot 3b, s.v. moser shetarotav): “This is the prozbul instituted by Hillel.”  The Tosafot, however, comment:

This does not seem right… Therefore, it seems that these are two [different] things, and one who hands over his bonds to a court – it is by Torah law that the debts are not released.

            The Tosafot understand that according to Rashi, one who writes a prozbul is regarded as if he had handed over his bonds to a court. Thus, there is a correspondence between the two laws, and just as prozbul is an enactment instituted by Hillel, so too "one who hands over his bonds to a court." According to this understanding, which is the accepted understanding of Rashi's position, the derivation from the biblical verse in the Sifrei regarding one who hands over his bonds to a court is merely an asmakhta – support for the law, but not really its source. On this point the Tosafot disagree and say that the law governing one who hands over his bonds to a court is biblical in authority.

            According to the Tosafot, the question arises: What need was there for Hillel's enactment if handing over bonds to a court prevents the remission of debts by Torah law? The Rishonim offer two explanations of the enactment.

1)             The Sefer ha-Terumot (cited by the Bet Yosef) writes:

A prozbul is only by rabbinic decree, and it is effective only in our time and in an important court, for he does not actually hand over his bonds to the court, but rather he writes or says to the court, "I hand over, etc."

            That is to say: If a person actually hands over his bonds to a court, the debts recorded therein are not released during the shemitta year by Torah law. But a person who writes a prozbul merely writes a deed in which he informs the court that he is handing over the bonds. Since he does not actually hand the bonds over, it is only because of Hillel's enactment that the debts are not released.

2)            The Tosafot and Tosafot Rosh in Gittin suggest that prozbul is indeed regarded as handing over the bonds to the court, and therefore it is indeed effective by Torah law. But until the time of Hillel's enactment, people rarely handed over their bonds to a court, because the practice was regarded as a circumvention of the law of debt remission during the shemitta year. For this reason, the courts refused to accept the bonds. By instituting that the courts should accept the bonds, Hillel legitimized the practice and made it available to whoever wished to make use of it.

II. THe time to write a Prozbul

            The Rambam rules:

The seventh year cancels debts at the end [of the year]. When the sun sets on the night of Rosh Ha-shana of the eighth year, the debt is cancelled. (Hilkhot Shemitta ve-Yovel 9:4)

            The simple conclusion that follows from this law is that a prozbul should be drawn up at the end of the shemitta year. However, the Tosefta states:

When is the prozbul written? On the eve of Rosh Ha-shana of the shemitta year (shevi'it). (8:11)

            This seems to indicate that a prozbul should be written at the beginning of the seventh year, not at its end. The Rashba writes in a responsum (II, no. 314) that the Tosefta should be emended so that it reads: "On the eve of Rosh Ha-shana of the eighth year (motza'ei shevi'it)." And so too rule many of the poskim.

            The Ittur (in letter peh), however, writes in the name of Rav Nissim Gaon that a prozbul should be written on the eve of Rosh Ha-shana at the beginning of the seventh year, as is stated in the unemended text of the Tosefta. According to Rav Nissim Gaon, there are two different laws: cancellation of the debt takes place at the end of the shemitta year, but the prohibition against collecting debts ("he shall not demand it") applies throughout the shemitta year. Therefore, one who wishes to collect his debts during the shemitta year needs a prozbul. Even Rav Nissim Gaon agrees, however, that bedi'eved if one writes a prozbul at the end of the shemitta year, his debts are not released.

            In practice, the custom is to write a prozbul at the end of the shemitta year, and so writes the Bet Yosef that this is the custom of Eretz Israel and the surrounding areas. On the other hand, the Shulchan Arukh, as well as the Chatam Sofer, writes that lekhatchila one should also write a prozbul at the end of the sixth year. This is also the practice of Chabad.

III. THe type of court

The Gemara (Gittin 36b) states:

For Shemuel said: A prozbul can only be written in the court of Sura or in the court of Nehardea.

So too writes the Rambam:

A prozbul may only be written by a court comprised of the greatest Sages, like the court of Rav Ami and Rav Asi, who were authorized to divest a person of his property; but other courts may not write [a prozbul]. (9:14)

            The Rosh in Gittin cites the position of Rabbenu Tam that a prozbul cannot be written in our times, because we no longer have the likes of Rav Ami and Rav Asi. In the continuation, the Rosh notes that Rabbenu Tam retracted this position and wrote a prozbul in his court, arguing that the court need not be like that of Rav Ami, but only the greatest court of its time. Therefore, in every generation, and possibly also in every place, the most prominent court in that area can write a prozbul. Some understand the aforementioned ruling of the Rambam in similar fashion.

            The Meiri in Gittin fundamentally agrees with Rabbenu Tam, but writes that we are not worthy of being regarded "a great court." He, therefore, suggests that rather than write a prozbul, the lender should add the stipulation when offering the loan, "on condition that the shemitta year not release the debt."

            The Rif omits Shemuel's law, leading the Ramban and the Rashba to the conclusion that according to the Rif, Shemuel's position was not accepted as normative law, and therefore any court can write a prozbul. The Ramban explains that Shemuel stated his law in accordance with his own position that if he had the authority, he would cancel the enactment outright. That is to say, Shemuel opposed the enactment of prozbul in principle, but since his position was not accepted, he thought that obstacles should be placed before those who wished to make use of the enactment.

            The Shulchan Arukh rules:

[A prozbul] only releases debts and may only be written in an important court, namely, three people who are experts in the law and in the matter of prozbul, and know the law of shemitta, and whom the majority has recognized as an authority over them in that city. (Choshen Mishpat 67:18)

The Rema, however, writes:

And some authorities say that a prozbul can be written in any court. And it seems to me that we can be lenient in our time.

            The Rema emphasizes "in our time," and in this context note should be taken of what he says at the beginning of the section:

But some authorities say that shemitta does not apply in our time. And it seems that we rely upon these authorities in these lands where it is common practice not to observe shemitta at all in our time.

            The Rema is alluding here to the position of the Ba'al ha-Ma'or that even by rabbinic decree the observance of shemitta depends upon the yovel year, and therefore once the observance of yovel ceased, the observance of shemitta ceased as well. In practice, however, most rule that shemitta applies even in our time by rabbinic decree.

IV. Writing a prozbul in the presence of judges or in the presence of witnesses

The mishna in Shevi'it states:

And the prozbul was to be signed by the judges or witnesses. (Shevi'it 10:4)

            The simple understanding of this rule is that the handing over of one's debts to the court can be confirmed either by the judges or by witnesses.

            The Rishonim disagree whether a prozbul can be written in the presence of the witnesses alone, and without judges. The Yerushalmi on the mishna states: "And even if they are in Rome." The commentators disagree whether the reference is to the judges or to the bonds. According to those who say the reference is to the court, there is proof that the prozbul need not be written in the presence of the judges. The Bet Yosef cites the Sefer ha-Terumot in the name of R. Yitzchak Barceloni who says that a prozbul may be written before the witnesses even if the judges are absent, and so too rules the Mordechai. The Acharonim deal with this issue at length.

            It should be noted that writing a prozbul in the presence of witnesses is problematic because it is not done in the presence of the judges. On the other hand, it allows for the debts to be handed over to the most prominent court in the area.

            Since it is common practice to draw up a prozbul on Erev Rosh Ha-shana of the eighth year, writing it in the presence of the judges themselves almost always means that it will be written in the presence of ordinary judges, and not the leading court of the generation or even a court that the majority of the city recognized as an authority over them. Therefore, according to those who rule in accordance with the Shulchan Arukh, it might be preferable to write the prozbul in the presence of witnesses. According to those who rule in accordance with the Rema, it might be preferable to write it in the presence of the judges, though they too can practice leniency and write it in the presence of witnesses.