Talmidav Shel Aharon
30-5767: Mitzvah 64
July 2, 2007
Mitzvah 64 – It is a positive commandment to release (cancel) a loan in the year of Shmitta (release).
Hafetz Hayim: As Scripture says: “every creditor shall release what he has lent his fellow.” (Deut. 15:2) If a borrower repays a creditor a loan over which the seventh year (shemitta) has passed, he is not to take it from him but is rather to tell him, “I release it”: for Scripture says, “And this is the manner (lit. the spoken word) of the release” (ibid). If the borrower says, “Nevertheless, take it.” He may accept it from him.
By the law of the Torah, the release of money obligations is in effect only at the time that the law of the jubilee year is in effect. But it is a decree of the Sages that the release of money obligations should be in force also in the present time, so that the law of release should not be forgotten by Jewry. However, a prosbul (the declaration in court after a loan is given that the shmitta year is not to cancel it) is effective against the law of released money obligations at the present time, that this loan should not be cancelled. It applies to both men and women.
The Torah is specific that a debt should be cancelled in the seventh year, the shmitta year. There is no basis in the Torah for getting around this release. That is why if the borrower comes to the lender and offers to repay it after the shmitta has begun, the lender must declare out loud, that he has released the borrower from his obligations for the loan. Only if the borrower insists on repayment, can the lender accept it.
The reason for this law reflects the reality of an agricultural economy. Farmers need cash to raise crops. They can borrow against the profit they will receive from their crops in the spring and repay it after the harvest is sold. That should leave the farmer with enough to feed his family and to be able to plant again in the spring. Any farmer knows, however, that the situation is far more precarious that that. Sometimes the produce prices are depressed after the harvest and they do not get enough money to repay the loan. Sometimes there are natural or man-made disasters that destroy the crops and leave the farmer with no way to repay the loan. A couple of bad growing seasons and the burden of debt can be so crushing that the farm will have to be sold or the farmer will have to sell himself into indentured servitude to repay what he owes. This release from debt every seven years allows the farmer to have a new start and to still keep his farm and his freedom.
The problem arouse when the Israelites began to develop a business class. In the cities, the release of debts was a serious impediment for developing capital for new ventures. As the seventh year approached, loans became impossible to get or with impossible terms. For this reason, the sages developed a law called “prosbul” where the debt was handed over to the court who did not have to release debts in the seventh year and could still claim payment when other debts had to be cancelled. While later Rabbis tried to fit this into the structure of Jewish Law, it was really a new idea that arose not from the law, but from the needs of the people. In much the same way that Conservative Judaism acts on behalf of the needs of the people today.
The reality of Judaism is that we no longer really follow the seven year cycle when we do not live in the land of Israel and we are far from the commitment to the calendar that our ancestors used to have. The whole process of releasing debts should have only applied to those who live in our holy land. The Sages tell us, however, that no matter where we live, we have an obligation for Jewish Law that insists that we continue to keep this basic Torah law in spite of it being almost impossible to enforce. Still, because of our love of G-d and our love of Torah, many pious Jews still include with all loans of substance, clauses that protect the lenders from losing their capital. Other Jews follow a different custom that teaches, that in monetary matters, “Dina d’malchuta dina” which means that the law of the land is the law. We follow the secular rules of lending money unless we are in the land of Israel where these laws are still very much a part of the legal landscape.