According to the Beit Yosef (Sephardi custom)
According to the Ramah (Ashkenazi custom)
Shmitat Kesafim, Cancellation of Debts
“At the end of every seven years, you shall make a release. And this is the manner of the release: every creditor shall release that which he has lent unto his neighbor; he shall not exact it of his neighbor and his brother; because Hashem's release has been proclaimed.” (Devarim 15:1-2)
The Shmittah (Sabbatical) year exempts one from paying back his prior debts. The Shmittah year releases debts that have a payment date by the day before Rosh Hashanah of the eighth year. However, the Shmittah year does not cancel debts that have a repayment date after Rosh Hashanah.
Like many mitzvot today, the halachic observance of Shmittah is rabbinic. Indeed the Torah obligation of Shmittat Kesafim is only in effect when Yovel, the Jubilee year is observed.
Hillel’s Ordinance – Prozbul
The Mishnah, Tractate Shvi’it (10: 3) states:
“Prozbul does not cancel debts – This is one of the issues that Hillel the Elder established when he noticed that the nation was abstaining from lending to one another. They would be transgressing what is written in the Torah ‘Be very careful that you not have a wicked idea in your heart …. (Devarim 15: 9).’ [Therefore,] Hillel established the Prozbul.”
The Prozbul document essentially transfers all [of one’s] debts to the Beit Din, in order that the court will be responsible for them. Indeed, the rule is that the Shmittah year does not cancel the debts of one who transfers his documents to the Beit Din (Mishnah, Tractate Shvi’it 10: 2).
The Laws of Prozbul that Appear in the Document
There are a variety of opinions regarding the type of beit din that one may use to transfer his promissory notes (cf. Tur, Beit Yosef and Shulchan Aruch, Choshen Mishpat, siman 67).
According to the Beit Yosef, one should transfer his promissory notes by means of the Prozbul, specifically to a “significant Beit Din.” In other words, the beit din should be comprised of “three experts of the rule and concept of Prozbul, who are familiar with the idea of Shmittah, and who are well-received by the majority of the same city.”
Therefore, in the wording that is based on the Beit Yosef’s ruling, the lender transfers the debt to a significant beit din. If the lender is not [physically] present at the beit din, he must sign the Prozbul in front of two witnesses.
The Ramah’s opinion is that one may make a Prozbul and rely upon any beit din. Therefore, one may transfer his promissory notes to any three people who assemble like a beit din for the purpose of receiving the Prozbul document. In the text according to the Ramah, there is an incorporation of this option in the actual Prozbul document. The procedure therefore needs to be conducted in front of three men.
The Mishnah in Tractate Shvi’it (10: 6) states:
In other words, our Sages wrote a Prozbul specifically in cases when the borrower would own land during the writing of the Prozbul. According to Rashi, the reason is that it is rare to lend to someone who does not own property. It follows that the Sages did not make a decree in such an unusual situation.
The Mishnah adds:
“If he [the borrower] does not have [land], he [the lender] credits a small amount within his field.”
In other words, if the borrower does not own land, one may write a Prozbul after the lender gives a small area of his property to the borrower.
Therefore, the first part of the Prozbul contains a bestowal of property to borrowers who do not own any land.
Instructions for Arranging the Prozbul
One should write the Prozbul until the end of the Shmittah year, which is the 29th of Elul, 5768 (September 29, ’08).
One should fill-out the lender’s name.
The lender should bestow by means of a kinyan sudar a small amount of his property on behalf of the borrowers who do not own land. In other words, the borrower should lift up any implement belonging to one of the witnesses (such as a pen or handkerchief) and will thus bestow [land ownership] unto the borrowers.
One should write the place where the Prozbul was arranged and the date on the document.
In the text that is based on the Ramah’s halachic decisions, one may give the Prozbul to any beit din, as mentioned above. In addition:
The lender should give the document in front of three men who are seated.
All three who are present should sign.
The signatories are acting as witnesses of transmission (of the debts) to the Mishpat VeHalacha BeYisrael Beit Din, or alternatively, as dayanim.
The lender retains the Prozbul document in his possession, and there is no need to deliver it to the Beit Din.
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