Pruzbul
Rabbi Alfred S. Cohen
Exemptions
There are various types of debts which do not require a pruzbul and can be collected after shemita, regardless. In this category are included debts which arise as a penalty or fine -- such as the money a man must pay his victim for rape or seduction, or a woman's ketubah (marriage contract). Also, a loan secured with a pawn or some other security can always be collected, as can money owed for goods taken on credit.24 An exemption is granted for money owed to an orphan, for "the beth din is [considered to be] the father of orphans."25 Rashba writes that someone who has pledged to a charity fund must pay even with the passage of the seventh year," for the beth din is in a sense responsible for the charity fund... and it is as if the pledges had been handed over to beth din."26 An exemption is likewise granted to a "loan for ten years", i.e., a long-term loan which has a specific collection time, after shemita. The thinking is that since the lender cannot request payment during shemita, he cannot transgress the commandment "do not dun" (lo yigoss, Devarim 15:2), and shemitat kesafim applies only to those loans where payment can be demanded during shemita. Finally, if a person hands his loans over to a Jewish court and says to them, "You collect the debt for me," the debt is not affected by shemita.27The Mishnah in Shevi'it 10:5 indicates that if one borrowed money from five persons, he must write a pruzbul for each person. However, Rav Ovadia Yosef explains that this is true only if each of the five is using his own money. But if money is borrowed from a group of people, lending money as a consortium or as a bank, it is enough for one of them to execute the pruzbul on behalf of the group. 28
Producing The Pruzbul
Human psychology, as understood by the Gemara, led the rabbis to accept the principle that a person does not sin when there is no reason or for no benefit: In the words of the Gemara, if kosher food is readily available, no Jew would ignore the kosher food and deliberately eat non-kosher food. By the same token, our Sages believed that since it is a simple matter for a person to write a pruzbul, why would anyone not take advantage of this simple device and save himself a lot of trouble? Thus, they said, if someone maintains that he did write a pruzbul but has misplaced it, we believe the claim and do not require him to bring proof that he did execute the document.29 Moreover, if a person produces an IOU to show that he is owed money, we inform him that if he wrote a pruzbul he is allowed to collect the debt (and we do not fear that thereby we are inducing him to lie about having done it).That was the trusting attitude which prevailed some fifteen hundred years ago. But already some six hundred years ago, we see that the rabbis were not so sure they could rely on common knowledge about the pruzbul. The Tur30 citing the Rosh, remarks that the understanding of common behavior expressed in the Gemara might have been true to life then, but already in his time, he doubted that knowledge of the pruzbul was all that widespread, nor did he believe that most people were aware of how to execute one. Therefore, the Rosh wrote,
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When someone comes to me and claims that "I had
a pruzbul but it got lost," I ask him, "What is a pruzbul,
and why did you write it, and for whom did you
write it?" until he is caught in his lie. Never did
anybody in Germany merit [to get away I with this
claim before me.
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A pruzbul which is pre-dated is valid,32 since the document is valid anyway only for loans made prior to its execution. However, a post-dated pruzbul is not valid, since it may cover debts not yet incurred at the time the document was written.
A pruzbul is a fairly straightforward legal document, which nevertheless requires a modicum of expertise to be executed properly. Since the need arises only once in seven years, many people are either unaware of the requierement or intimidated by their lack of familiarity with the provision. Hopefully, the present study will help to allay these negative sentiments, so that the mitzvah of shemita maybe observed more properly.
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