While I was casting around for topics to consider in this week’s sheet, a friend called to ask me about shemitat kesafim, the mitsvah to cancel all loans during the shemittah year (5761 is a shemittah year). While this halakhah does not really apply until next Rosh haShanah (as we’ll mention in a moment), I grabbed the opportunity to review what the Shulhan Arukh has to say about the issue.

Of vital importance in considering the topic is remembering that nowadays the whole practice of shemitat kesafim is Rabbinic; the Torah’s requirement to forego loans in the Sabbatical year applies only when the yovel, the Jubilee cycle, is being fully observed. As a side note, the notion of yovel being observed is central to many other halakhot. For just one example, Rambam does not believe that we accept gerei toshav, non-Jews who stay non-Jewish but accept the Jewish version of reality and the requirements of the seven Noahide laws, except at a time when the yovel is active. To get a sense of how utopian that time is, Rambam rules that yovel only applies when all the tribes of the Jewish people are inhabiting their particular plots of the Land.

To return to shemitat kesafim, there was actually one opinion (reported by Rema) that denied any current reality of the requirement to forgive and forego all loans. Rema suggests that those places that ignore this halakhah (he apparently knew of some) were relying on this view. The majority view, however, seems to be that Rabbinically this law does apply.

Shemitat kesafim applies at the end of the Shemittah year, meaning that one could lend money during this whole year as long as it was collected before next Rosh haShanah. Another interesting aspect of the law is that it only applies to loans that have come due—if someone lends money to another person with the term of a loan carrying it beyond shemittah, that loan does not become nullified by shemittah. However, if the loan was already due, shemittah should apply. Where that becomes problematic is in a loan that has no specific term to it. In loans between individuals, there is often no explicitly stated term, which theoretically makes the loan liable for repayment at any time after thirty days (unless there is a different customary term of loans in the place where the loan was issued). Such loans, then, would be subject to the rules of shemitat kesafim.

The main legitimate way around the halakhah is the famous pruzbul of Hillel, which fundamentally turns the loan over to a court, so that any future collection of this loan is really as representative of the court. For pruzbul to work, however, the borrower must own some land, for one of two main reasons. Rashi suggests that only a loan where the borrower had some real security (and land remains liened to the loan even if the borrower subsequently sold it or gave it away) rises to the level of significance of the pruzbul, while others suggest that only where the borrower owns some land could the lender legitimately turn over the collection of that loan to the courts.

Although this requirement might seem to present a barrier in a time when many people do not own any land, I would point out that our definition of land for these purposes is very lenient (a large pot for plants, if it has a hole in the bottom, can qualify). In addition, the lender can (at the time of writing the pruzbul) give some land to the borrower in order to make the process feasible. That gift can be done without the specific consent of the borrower (even without his presence), because of the principle that we can give people gifts even without their consent. If, however, the borrower is present and protesting the acquisition of the land (perhaps so that the lender cannot write a pruzbul), we cannot force him to accept it.

The ideal was to have pruzbul documents be issued by a well-recognized court, but Rema also accepts lesser courts as well (particularly since some places did not bother at all).

For loans that have already come due by the end of the shemittah year, and if a pruzbul was not written, the lender has the rabbinic requirement to not collect the loan. The borrower can nonetheless repay the loan if he so chooses. In that situation, the lender would be required to remind him that shemittah had canceled the loan, to which the borrower would ideally respond that this was not a repayment of that loan, it is a freely offered gift (for the exact same amount as the original loan). At that point, the lender could accept the money.

With best wishes that none of us will have outstanding loans (as either borrowers or lenders) by next Rosh haShanah, I bid you Shabbat Shalom.