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In Melbourne Shabbat begins Fri 25 Jan 2019 08:20 PM and ends Sat 26 Jan 2019 09:20 PM
כ"ח אלול ה' אלפים תשע"ד
An aspect of the halacha related to the Sabbatical Year is the fact that just as the land has to rest, debts between a Jew and his fellow have to "rest", ie the debts are cancelled. This serves to underpin that ultimately we put our reliance in the Al-mighty.
However one of the consequences of this law was that people became reluctant to lend each other money close to the time of the cancellation of the debt. The Talmudic sage Hillel, noting that lending money to people in need is a big mitzvah, sought to minimise the impact on the poor of this law of Shmitta. He instituted the procedure of the Pruzbul which transfers private debts over to a Beth Din. The net effect is that there was no longer a disincentive for people to lend money prior to and during the Sabbbatical year.
There are Shules in Melbourne which have organised Batei Din (Beth Dins) to implement the Pruzbul - prior to Rosh Hashana - this year. The Mizrachi Organisation convened a Beth Din two weeks ago for this purpose, and the Yeshivah Centre has facilitated an "e-Pruzbul" (with Rabbi Telsner's authority). To avail oneself of the facility click on e-pruzbul . You will be asked to fill in a form and click a button indicating your consent to the transaction.
This is taken from the YESHIVAT HAR ETZION ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)Lecture #17: Defining a Pruzbul
By Rav Moshe Taragin
The gemara in Gittin (36a) describes the rabbinic innovation known as pruzbul. Although the conclusion of the shemitta year cancels all outstanding debts, the issuance of a pruzbul offsets that cancellation. A pruzbul is a document that a person presents to the court announcing his intentions to continue collecting his debts after shemitta. The efficacy of the pruzbul is clearly stated in the gemara, but the gemara is not entirely clear regarding the internal mechanism of the document. HOW exactly did the Rabbis â€‘ through the instrument of pruzbul - circumvent the biblical command of shemittat kesafim?
A simple explanation would suggest that pruzbul is an arbitrary redefinition of monetary ownership. In fact, the gemara cites Rava's opinion that the pruzbul is based upon the principle of "hefker beit din hefker," which awards the Rabbis the right to redefine financial interests. Although, according to the Torah, at least, the money lent belongs to the debtor, who is now exempted from payment, Chazal redefined the assets as belonging to the creditor, who can still collect. The drafting of a document of pruzbul is merely the symbolic act to demonstrate concordance with the Rabbis' institution and intervention.
A section of the Sifrei suggests that a very different concept underlies the institution of pruzbul. The Torah forbids demanding the repayment of debts after shemitta by writing "you shall rest your hand from that which your brother possesses [of yours]." The Sifrei suggests that shemitta does not cancel debts which were deposited in beit din for collection. The Sifrei continues, "Hillel used this principle as a source for the establishment of pruzbul." By citing the circumvention of shemitta known as moser shetarot (transferring debts to beit din) and casting this as a template for pruzbul, the Sifrei may be viewing pruzbul as a derivative of moser shetarot. Perhaps, by writing the pruzbul document a person is legally transfering his debts to beit din for collection, thereby avoiding their cancellation through shemitta.
This latter approach is consistently adopted by Rashi. In several contexts (Makkot 3b, Gittin 36a, Ketuvot 89a, see also Rashbam Bava Batra 66a), he refers to pruzbul as a de jure deposit of debts to the beit din for them to "collect" as his proxy. The Rabbis did not undo the Torah-based cancellation of debt; instead, they adopted an extant concept and adapted it through the legislation of pruzbul. Ideally, a person must ACTUALLY DEPOSIT his shetarot in beit din and the beit din subsequently executes collection. The writing of a pruzbul allows "shortcuts;" a symbolic document is written instead of the actual contracts being deposited. Similarly, the lender can still collect his debts on his own after symbolically deputizing beit din to collect them (see the Ramban's comments to Gittin 36a for an elaboration of which shortcuts the pruzbul enables).
Tosafot in Makkot reject Rashi, viewing pruzbul and mesirat shetarot as completely independent concepts; unfortunately Tosafot do not provide an alternative description of pruzbul, suggesting that it may just be an arbitrary reconfiguration of monetary assets.
This question of whether pruzbul is a direct Rabbinic subversion of Shemitta or the adaptation of the precedent of moser shetarot may yield some fascinating distinctions. The mishna in Sheviit 10:4 and the parallel gemara in Gittin (36a) supply the following text of the pruzbul: I, ploni ben ploni, convey in beit din ….that all my debts are still collectable even after the impact of shemitta." The ambiguous word is "moserani," literally "I convey." According to Rashi's view, the author of the pruzbul is actually "transferring" his debts to beit din to allow collection. The term "moserani" refers to the actual conveyance of debt to legal supervision. By contrast, if pruzbul is merely a presentation of "participation," the term "moserani" would refer to the conveying of a declaration; the person appears in court and declares his participation on the Rabbinic innovation of pruzbul. That declaration suffices to trigger the Rabbinic intervention preventing the cancellation of debt.
An alternate script of the pruzbul is cited by several Rishonim as the text of Rabbi Yehuda from Barcelona. In his text, the lender actually delivers symbolic land (4 cubits in size) to the court and, along with that land, he transfers OWNERSHIP of outstanding debts to the judges, thereby allowing them to collect on his behalf. This form of kinyan is known as "agav;" when land is legally transferred, secondary items can be "thrown in," even without an autonomous act of kinyan. Even abstract items such as debts can be included in land transfer through the process of agav.
Unlike Rashi's opinion, however, in this opinion, the debts have to be LEGALLY DELIVERED through a halakhically approved method of transferring debts. Without actual delivery, beit din cannot collect on behalf of the creditor. This is based upon a gemara in Bava Kama (70a), which addresses the difficulty that a messenger (shaliach) would face in collecting debts for the meshaleiach (sender) him. Unlike other forms of shelichut, the debtor could rebuff the agent by asserting that an agent has no right to litigate collection, as he wasn’t the original lender. In order to empower the beit din to serve as ACTUAL collectors of another's debt, legal transfer of those debts to the shaliach must be affected through agav.
Although Rabbi Yehuda of Barcelona differs from Rashi in demanding a literal, rather than symbolic and "facilitated," transfer, he does agree that the backbone of pruzbul is the process of moser shetarot. Had he believed that pruzbul was an arbitrary reconfiguration of debt, he would not had demanded the instrument of agav.
Another interesting question regards the type of "act" necessary to issue a pruzbul. The standard process includes entering beit din and issuing a pruzbul "contract." However, the gemara in Gittin (37a) describes the Rabbis who learnt with Rav Ashi as "merely" passing words between them when issuing the pruzbul. Presumably, they skipped the actual drafting of a pruzbul and merely mentioned their intent to several comrades who served as an ad hoc beit din. Most Rishonim assume that this allowance applies only to talmidei chakhamim, for whom verbal declaration suffices, but it remains unclear why they don’t require actual pruzbul contracts. The Meiri claims that given their knowledge of Halakha and the presumed seriousness of their intent, verbal declarations of talmidei chakhamim are a sufficient replacement for an actual contract. The Meiri cites certain instances in which verbal declaration functions as a form of actual kinyan. Essentially, the talmidei chakhamim are issuing the equivalent of formal pruzbul.
The Rambam describes this dispensation in very different terms. Learned individuals are fully aware of the mechanism and halakhic viability of pruzbul; they are aware that its effectiveness (at least according to Abaye in Gittin 36) is based on the weakened status of contemporary shemitta, which is de-rabanan. Aware of the integrity of the pruzbul's impact, they don’t require an actual contract and can proceed through casual verbal declaration.
Essentially, according to the Rambam, pruzbul is necessary merely to prevent the process from becoming farcical. To the uninformed, pruzbul seems arbitrary (which it is) and illogical (which it isn’t). To avoid this seeming farce, a halakhic process is "staged" by drafting a pruzbul. Educated individuals appreciate the halakhic viability of pruzbul and are excused from this "charade."
Presumably, the Rambam comprehended pruzbul far differently from Rashi. To Rashi, a pruzbul contract is an abbreviated manner of depositing debts to beit din for their assisted collection. The pruzbul is essential to create the "halakhic deposit." Any dispensation for talmidei chakhamim must be cast in the Meiri's model; their verbal declaration is the EQUIVALENT of an actual pruzbul. The Rambam, on the other hand, believed that the process of pruzbul is based purely on Rabbinic intervention and financial reconfiguration. The actual pruzbul contract is merely a simulation to prevent "ridicule" and is unnecessary for the educated creditor (and debtor; according to the Rambam this allowance would only apply if BOTH creditor and debtor were educated!).
A final question would surround the anatomy of a pruzbul. The mishna claims that a post-dated pruzbul is invalid; a pruzbul contract dated AFTER the actual date of composition is ineffective. For this reason, most draft a pruzbul as late as possible (typically erev Rosh Hashana) to assure full coverage of all loans. Some interpret the mishna as invalidating a post-dated pruzbul even for debts generated before the date of issue. The Ran (in response 77) questions this disqualification. Why should an incorrect date invalidate the pruzbul's effectiveness even for debts prior to the pruzbul?
In defending this rule, the Ran flatly rejects Rashi's model of pruzbul. Indeed, if Rashi is correct and pruzbul is a manner of depositing debts for beit din supervised collection, the date should be less significant. However, if the contract itself is the Rabbinic instrument for reconfiguring the monetary landscape and awarding the debt-asset to the malveh, it must be drafted as a legally binding contract without the internal flaw of an inaccurate date. It would seem that the Ran also disagreed with Rashi; pruzbul is an independent Rabbinic intervention and not based on the model of mesirat shetarot.
Ironically, the Ran and the Rambam adopt similar positions (the Ran quotes the Rambam as "backup") but assert opposed conclusions. To each of them, the pruzbul is not merely a tool to deposit debts for beit din led collection. According to the Ran, this increases the role of the actual pruzbul contract and its date must be accurate. The actual contract reconfigures the monetary situation and must be drafted carefully. According to the Rambam, the pruzbul contract is merely a simulation and verbal declarations should â€‘ in theory - be ample replacement for pruzbul. According to the Rambam, the arbitrary nature of pruzbul's intervention reduced the centrality of the shetar, whereas according to the Ran it augmented its role. Either way, they disagree with Rashi and refuse to view pruzbul as merely a manner of depositing debts for beit din supervised collection.
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