Rosh Hashanah - 5782

Rosh Hashanah - 5782

Rabbi Hal Miller

This is the matter of the release: every creditor shall release his authority over

what he has lent his fellow, he shall not press his fellow or his brother, for He

has proclaimed a release for God. [Devarim 15:2]

Our verse comes from parashat Re'eh, not from the Rosh Hashanah services,

but there is a tie. Once every seven years, going into the Shemittah year, every

Jew who has lent money to another Jew (without interest, of course) forgives the

loan. Commentators explain in depth why this applies, why it does not apply to

any loans we made to non-Jews, etc. In the end, it is a clear Torah commandment

to forgive these loans going into Shemittah. Yet, minutes before we begin Rosh

Hashanah into that year, we sign a document called a prozbul in order to preserve

the loans and get around this clear Torah commandment. Since this year, Rosh

Hashanah begins a Shemittah year, we need to ask, how and why does this work?

Commentators spend much time on whether this release needs to happen at the

beginning or at the end of the Shemittah year, but that is not our question. There is

also much discussion about Shemittah being tied to resting of the land, but most

agree that Shemittah, which means release, is applicable to anything borrowed,

whether the land we borrow from God, or any other asset we may borrow or loan

amongst ourselves. Onkelos specifies that these loans do not have to be only of

money, but can consist of any property. Saadiah Gaon defines the term Shemittah

as ownerless. All of this, though, seems to further call into question the idea of a

prozbul allowing us to avoid forgiving a loan.

Perhaps it will help us to understand the purpose of this mitzvah of releasing a

debt. All of the commentators express this as a form of what we now refer to as

bankruptcy, a way for someone in significant financial difficulties to unchain himself

from overwhelming burden and to begin fresh. Rav Hirsch and others point out that

the debtor remains morally obligated in the debts, even though released legally.

Although the creditor is supposed to refuse to accept payment on a loan that had

been released this way, if the debtor insists, then the creditor may accept payment.

A problem arose because of this release. People with money refused to loan to

those in need because they assumed they would lose their investment. Hillel the

Elder came up with the prozbul as a way to keep poor people competitive for the

helping hand that the Torah had in mind. On its face, it seems to violate our verse

but Hillel would not have done this without clear justification. What did he see?

This commandment is addressed to an individual person dealing with another

individual person. "A creditor shall release his authority", and "he shall not press

his fellow". Hillel noted that the command does not apply to any other situation,

not to a bank or company, not to orphans, not to a court. Other mitzvot specify

when they apply generally, so the Torah could certainly have made this one

more broad. Going back to the purpose, Hillel recognized that there is an aspect

of generosity and magnanimity involved, that a person must act in a certain way

to care for his fellow Jew. Thus, in addition to bankruptcy, our verse is guiding

lenders to proper behavior.

That alone does not justify our retaining a loan through the prozbul. This method

requires transferring ownership of the debt to the court, allowing them to collect.

The transfer can be, and is, conditioned on the court paying the creditor when

they collect, which is a separate transaction much like modern debt collectors.

Thus, it is not the lender who is retaining a loan here, rather the court now owns

it and may collect.

It still seems close to the line between a valid transaction and a Torah violation,

but Hillel cast it under the public policy mitzvah of taking care of the poor in

our community, and effectively used a legal loophole, permitted by the Torah,

to ensure the real purposes of the mitzvah are met.