Torah Emet
8-5770 Mitzvah N-66; 67; 68
January 11, 2010

Negative Mitzvah 66 – This is a negative commandment: Do not have pity on a poor man in a court trial.
Hafetz Hayim – As Scripture says: “neither shall you favor a poor man in his cause.” (Ex. 23:3). And it further states, “You shall not respect the person of the poor (Lev. 19:15) [This means] that the judge should not say, “He is an indigent man, and we have a duty to sustain him. I will declare him right in the court case so that he will be sustained with ease.” It is in force everywhere, at every time.

Negative Mitzvah 67 – This is a negative commandment: Do not pervert justice for a sinner on account of his wickedness.
Hafetz Hayim – As Scripture says: “you shall not pervert the judgment of your poor in his suit (Ex: 23:6) and the meaning of “your poor” is a person who is poor in Mitzvot. It applies everywhere and always for both men and women.

Negative Mitzvah 68 – This is a negative commandment: Do not pervert justice for a proselyte or an orphan.
Hafetz Hayim – As Scripture says: “You shall not pervert the judgment of a convert or an orphan” (Deut. 24:17) If a judge transgressed and did deal unjustly with the case of a convert or the case of an orphan, he would violate two prohibitions (you shall do no injustice in judgment – (Lev. 19:15 see next Mitzvah in the next lesson #69) and this prohibition). It applies everywhere and always for both men and women.

I would have thought that all of this would fall under one single prohibition about ruling in a court case based on who the litigants are, rather than on the facts of the case. The Torah, however, lists all of these cases separately so each one is a mitzvah in its own right. We will see next week the general law, but here we have some specifics. These represent cases where one might have a reason to consider who is standing in front of them.

In the first case, one of the litigants is a poor man and the other is more wealthy; (he may or may not be “rich” but he has a lot more than the poor man has). The judge might consider that the wealthy litigant can afford to lose the money and the poor man will not have to beg for his meals for a while. It is a kind of “Robin Hood” idea. Take from the rich and give to the poor. This is not allowed in Jewish Law. If the law says that the rich man is right and the poor man wrong, the judge must rule against the poor man. He can ask the rich man not to oppress the poor man by demanding his payment right away, but if the wealthy man is right, it is not permitted to rule against him.

In the second case, one of the litigants is a wicked man. He may or may not be willing to give up his life of sin. In any case, he is currently “poor in Mitzvot.” A judge may not rule in the case in order to give the sinner what the judge thinks he deserves. If the sinner is right, and the other litigant is in the wrong, a judge must not rule against the sinner. The sinner may later do something that will get him in trouble for his own actions, but justice will have to wait. No matter what the morality of either of the litigants, the judge must rule on the facts of the case and not on the “lifestyle of the litigants.

Finally, the orphan and the convert were always susceptible in court to other litigants. They were usually poor and could not mount a proper defense of their position. They also did not have enough experience in Jewish courts to get justice. It is not the role of the judge to do any social engineering. It does not matter if the orphan or convert is wise to the world of the court, or not. If the facts of the case are that they are guilty, then they must pay what the court decides. A judge can not protect them if they have acted inappropriately. I heard a story where a Rabbi was called to judge between a man and his servant girl. As he left for court, his wife also prepared to go to court as well. “Why are you going to court?” asked the Rabbi, “Why should you bother with this trivial case?” The wife replied, “I am going to make sure that the poor servant girl gets a fair hearing and is not cowed into admitting what may not be true. I am going to defend the servant girl.” It is one thing to make sure that the poor, orphan, convert and sinner do not have an advantage in court due to their position in society. But it is also the community’s obligation to make sure that they do have proper representation in the court.

These Mitzvot all insure that everyone, the poor, the wealthy, the powerful and the weak all get a fair trial and a proper day in court. After that, the ruling of the judges must follow the law. The law must not respect the person of either litigant, for good or for ill.

Torah Emet
7-5770 Mitzvah N-65
January 4, 2010

Negative Mitzvah 65 – This is a negative commandment: A judge must not hear the argument of one party to a lawsuit when the other party is not there.

Hafetz Hayim – As Scripture says: “You shall not take up a false report.” (Ex. 23:1). A litigant (party to the dispute) is likewise adjured not to present his statement to the judge before his fellow-litigant comes; we read the text (Lo tissa) “you shall not take up” as though it were “Lo tassi” “you shall not cause to be taken up.” Included in this prohibition is the rule not to accept and not to relate evil slander and not to give false testimony. It is in force everywhere, at every time for judges and litigants, both male and female.

The law here is rather straight forward; it is how we get to the law that is of interest to me. It is important that both parties for a lawsuit should be present in court so that each one can hear the claims against the other and properly offer a rebuttal when it is their turn. This makes logical sense as well as legal sense. To have one party state its case without the other party present, is a form of collusion between the judge and the one litigant against the other. It is as if the judge is being manipulated by or is prejudiced to the litigant giving his testimony in secret. That seems to be rather clear as far as the conclusion of the mitzvah is concerned.

The interesting part is how the Hafetz Hayim learns this lesson by “misreading” the actual text of the Torah. We are being asked to understand what is written in one construct as if it were written in another. One gives us a plain meaning; the other is causative. The actual written difference is minimal but the change in meaning is great. Without the switch, the mitzvah seems to be saying that we must not slander another person or give false testimony. With the change it becomes a directive to judges and litigants that they can not bring up any matter in a false manner that is without the other party in attendance.

We can ask, at this point, which came first, the need to find a scriptural basis for testimony in the presence of both litigants, or that someone read into this verse from Exodus and came up with the idea that testimony must be done publicly in this manner. I am not sure that it really matters at this point. Through the magic of hermeneutics, a new law has come out of a simple verse and its plain meaning is extended.

This is the kind of interpretation of Torah that the Karaites, during the middle ages, objected to. If it was not in the plain meaning of the text, then it should not be considered “Torah” or law. The only problem was (and still is) it is impossible for anyone to just rely on the plain meaning of the text of the Torah alone, without interpretation. Even the Karaites had their own forms of interpretation that often went far beyond the simple meaning of the text.

Torah Emet
6-5770 Mitzvah N-64
December 27, 2009

Negative Mitzvah 64 – This is a negative commandment: Do not appoint a judge who is unsuitable.

Hafetz Hayim – As Scripture says: “You shall not respect persons in judgment.” (Deut. 1:17). And it was explained in the Midrash Sifre that this is addressed to the man assigned to appoint judges, that he should not respect persons: He should not say, “So and So is strong” or handsome, or wise in other fields of knowledge or other areas of excellence, which are not related to the Torah and the reverent fear of Heaven (God). For a judge needs to be wise in the Torah, reverent toward Heaven, with a hatred of bribery, who subdues his evil impulse; and he should have a strong fearless heart to rescue an exploited or victimized person from the one who oppresses him. These are the noble qualities that a judge needs to have. If, however, someone appoints judges on account of other qualities, he violates this prohibition. It is in force everywhere, at every time.

The plain meaning of the verse from Deuteronomy teaches that when litigants come before a judge in court, he should not administer justice based on the different statuses of the litigants. A judge should not say, “This man is a well respected man in town, he must be right in this case, how could I even think to rule against him?” nor should a judge think, “This man is poor and the other is rich; the rich man will not miss the money and the poor man needs it so I will rule against the rich man to aid the poor one.” In both cases the judge has not acted correctly and would be basing the judicial decision on the circumstances of the litigants and not the facts of the case. Rich or poor, one must not favor one side over the other in court.

The Hafetz Hayim, however, basing his interpretation on the Sifre, sees this Mitzvah in a very different circumstance. The Sifre is a collection of Midrashim, sermons and other extra-legal stories that expand or limit the context of the verses in the Torah. The Sifre is part of the “Midrash Halacha” one of the earliest collections of interpretations of the Torah. [The parts of Midrash Halacha are: The Mechilta (on Exodus), the Sifra (on Leviticus), and the Sifre (on Numbers and Deuteronomy). It does not include Genesis because there are very few Halachot, or laws based on the verses of Genesis.] According to the Sifre, our verse in the Torah from Deuteronomy does not refer to the actions of judges but to the one who is appointing judges.

In ancient times, judges were appointed by the ruling party and were supposed to follow the demands of those who appointed them. In many cases rich men (never women) would pay to be appointed to these posts which came with easy salaries and one could “take care” of friends and punish enemies. As long as you paid your patron and did not anger him, you could be appointed for life and everyone would have to honor you or face your wrath. Another point in the ancient judicial world was that, for pagans, justice depended on the god who was behind the judge. Since the many gods often fought with each other, human justice could also reflect this disagreement and a final decision could depend on which god the judge saw as the “patron” of his court.

Justice in Judaism was a very different process. The fact that there is only one God means that there is only one law, for all the people. That law is based on the single text from that God and the judges are only responsible for upholding the law. Moses, who appointed the first judges, was looking for men who were upright and honest. Jewish literature is filled with judges who were not afraid to judge a king or a powerful man in the community. They believed that God stood behind them in justice and if someone were to subvert their rulings, then God would punish those who would defy God’s judge.

In this tension, between the Jewish version of justice and the pagan view of justice, is the core of our Mitzvah. There could be all kinds of reasons someone would want to appoint a person to be a communal judge. The Sifre tells us that there is really only one correct reason, that the person is wise in the law, hates bigotry, too honest to accept a bribe and with a pious reverence for God and Judaism. It is hard enough to weigh justice and mercy when ruling in court. To be distracted by other extraneous ideas and indebted to other people just can not be tolerated. To bring any other qualification to the table when appointing judges would be an affront to God and a violation of this Mitzvah.

Torah Emet

5-5770 Mitzvah N-63

December 20, 2009

Negative Mitzvah 63 – This is a negative commandment: Do not curse a judge.

Hafetz Hayim – As Scripture says: “You shall not revile God.” (Exodus 22:27). (This is interpreted to mean judges.) If someone curses a judge by the Divine name or by a substitute name of God, he should receive whiplashes twice (over this prohibition) and over the prohibition not to curse a fellow Jew (Mitzvah N-45).

This verse of the Bible is also an admonition not to blaspheme Hashem. If someone blasphemed Hashem by a substitute Divine name, he would transgress a prohibition. If someone blasphemed Hashem by the Divine name itself, his punishment is stated explicitly: “And he who blasphemes the name of Hashem shall surely be put to death; the entire community shall stone him” (Lev. 24:16). This is the case if one blasphemes even if he retracts in the time it takes to say a few words. At the present time, however, when we do not judge capital cases, he is excommunicated and we keep our distance from him. It is in force everywhere, at every time for both men and women.

In Mitzvah N-45 the law noted that it is forbidden to use God’s name to curse other people. Here we raise the stakes another notch. If cursing a fellow Jew is bad, how much more sinful can it be to curse a judge. Now the curse is not directed only to an individual, but to the institution in which the judge operates. This curse is directed to the whole structure in which justice is provided in the community.

We can see why a person might want to curse a judge. After all, if a ruling does not go the way we would like it to go, we might get angry, not at ourselves for errors we may have committed, but blaming the judge for not understanding our case well enough to rule the way we wanted him or her to rule. Being a judge does not imply that you will win any popularity contests, rather, more often than not, both sides will be unhappy with your rulings and say nasty things about you and the whole legal system.

Anger is one thing, cursing is another. Words have power, and if we are not careful, our words could be twisted by someone else and much harm can befall the judge or other judges who get swept up in our curse. Getting mad and saying things you might regret is bad, but it is criminal if our words go on to bring harm, through our actions or through the actions of one who hears our curse. King David says a few ill chosen words against King Saul’s heir Ishboshet, and a well meaning soldier takes that to mean the young man should be assassinated. We have to watch our words.

The Torah equates judges with God. One of the words used, “elohim”, could refer to either God or judges. If our verse from Exodus is taken in a literal way, it refers to cursing God, which would be a capital offence.

The issue of substitute names of God was raised in Mitzvah N-45. It refers to any name that is usually associated with God. It can be a distinctly Jewish name for God or a common name for God used by non-Jews. Using a substitute name is punished by whiplashes, but using one of the direct names of God makes one liable for death by stoning.

The Hafetz Hayim understands that Jewish courts do not impose the death penalty anymore. The Rabbis made a series of rulings that make it difficult, if not impossible, to get a conviction in a capital case. He rules, therefore, that while we do not put the one who blasphemes God to death, we do remove him from our community. The blasphemer’s attitude to God can not exist in a community of faith. It is not so much that we wish to censer his words; rather, he undermines the very heart of what the community believes in and can no longer be allowed to spread his blasphemy to others. He must be avoided by all who are faithful to God.

Torah Emet

4-5770 Mitzvah 62

December 13, 2009

Negative Mitzvah 62 – This is a negative commandment: Do not harden your heart and do not shut your hand toward a poor Jew.

Hafetz Hayim – As Scripture says: “you shall not harden your heart nor shut your hand from your needy brother.” (Deut. 15:7). [http://toratemetlessons.blogspot.com/2006/12/09-5767-mitzvah-38.html]. It is in force everywhere, at every time for both men and women.

In the positive Mitzvah, the Hafetz Hayim writes at length about the many different ways the Torah tells us that we need to be responsible for the poor in our community. He tell us there (you can look it up in the Archives on Dec. 25, 2006) all the many ways we can fulfill this positive commandment. But as we say in the last lesson, there is also a negative side to this law.

There are many reasons that we might fail in our obligation to the poor. We might think that the person is not really poor; we think he is guilty of trying to make his money by scamming those of us who take our Tzedakah seriously. Perhaps we have already given many times in recent days. Maybe we had a bad month and we are worried about our family income. Maybe we are not feeling very generous this week. As far as this commandment is concerned, there is no excuse for closing our hand to those who are in need. It is not just a positive commandment; there is also a negative commandment that tells us that we have sinned if we close our hand to the poor.

The Mitzvah only mentions poor Jews and we do have an obligation to Jews who are in need before those who are not Jewish. We can fulfill this part of the Mitzvah through our contributions to the Jewish Federation. Still, we should support all the poor in our community if, for no other reason, for the sake of peace. We can fulfill this part of the Mitzvah through our contributions to the United Way. We need to support all those institutions who work every day to offer food, clothing and shelter to the poor in our country and around the world. We may not be able to end poverty by ourselves, but every person we can help, deserves our Tzedakah.

Torah Emet

3-5770 Mitzvah 61

December 6, 2009

Negative Mitzvah 61 – This is a negative commandment: Do not withhold from its owner an object taken in pledge, at the time that he needs it.

Hafetz Hayim – As Scripture says: “you shall not sleep with his pledge.” (Deut. 24:12). Which means: do not go to sleep while his pledged object is with you (see positive commandment #63) http://toratemetlessons.blogspot.com/2007/06/29-5767-mitzvah-63.html . It is in force everywhere, at every time for both men and women.

The above link has my comments on the positive side of this Mitzvah. It is a positive Mitzvah to return an object, given as a pledge on a loan, if the object is something a person needs for his daily life or to make a living. It can include clothing, tools of his trade, bedding, or kitchen utensils. Most times a person will pawn something that he doesn’t need but which has a value if it were to be sold. The borrower might not want to sell it for sentimental reasons or that market for the item may not be favorable at the time the borrower needs the money. In this case, the pawned object stays with the lender until the loan is paid.

But if the object is something that is vital to the borrower for his daily life or to earn a living, he may need that object to earn what is needed to pay back the loan. Jewish law commands us to give him the object when he needs it and he will return it when he is finished. We should return his tools in the morning when he goes to work and he will return them at the end of the day. We can hold his bedding by day but we need to return it to him each evening before he goes to sleep.

It is a positive Mitzvah to return to the borrower such necessary objects. It is a negative Mitzvah not to return them. This is how seriously Judaism takes this part of Jewish law. This law had to be stated both as a positive Mitzvah as well as a negative Mitzvah. It is not just a nice thing to return the object. It is not just a “charitable” act on the part of the lender. It is a requirement of the law to act in a moral way and there will be punishment if we refuse to do what is right. We are not dealing with rich people needing to raise some capital to cash in on some investment. We are dealing here with poor people who are taking a loan in desperate financial times. We must take care not to create for them impossible situations or embarrassing moments lest God, who watches out for the poor, the orphan and the widow, will take up their case and act against the heartless lender who causes these defenseless people such pain.

In Judaism we do not say “business is business.” We conduct our business practices with humanity and morality.

Torah Emet
2-5770 Mitzvah 60
November 23, 2009

Negative Mitzvah 60 – This is a negative commandment: Do not take as a pledge (or take as collateral for pawn) the garment of a widow.

Hafetz Hayim – As Scripture says: “nor shall you take a widow’s raiment to pledge.” (Deut. 24:17). This applies whether she is poor or rich; and neither at the time of the loan nor after the loan was made, nor through the court. If he (the creditor) took an object in pledge from her, it is taken back from him against his will. If the object taken was lost before he returned it, he would violate this prohibition irrevocably, since he can no longer fulfill his duty to return the object taken in pledge. It is in force everywhere, at every time for both men and women.

One of the hallmarks of the Torah’s legislation is its protections for the poor. While it is true that the law of the Torah applies to both the rich and poor alike, God is seen as the defense attorney and protector of the poor and those who have no one else to protect them. This includes widows, orphans and the homeless.

In this mitzvah, we are reminded that a widow is already in a precarious financial position. To offer her financial support is the mark of one who is committed to Tzedakah, acts of Justice. To offer a loan with collateral is considered to be taking advantage of her unprotected status. Especially in the case where the collateral is an article of clothing; one does not take clothing as a pledge as this would cause too much pain for the widow who is forced to sell her clothing to cover her debts. She is to be supported because it is the right thing to do.

But even if she is not poor, a creditor cannot take an article of clothing in pledge. First of all it is a bad policy, since if we allow it in one case it would be too hard to convince people not to take an item in pledge when the widow is poor. Also, even a rich widow has a certain amount of dignity that you rob from her if you take an item of clothing in pledge.

I do note that the Hafetz Hayim does not distinguish clearly between an item of clothing taken in pledge and any other item taken in pledge. I understand this his way of saying that while the Torah mentions only articles of clothing, it is the responsibility of the community to support the widows in their midst and clothing is just one of the items that are included in the prohibition. Tzedakah is what is called for here, not a loan. We must look out for those who are at risk in our community and help them get back on their feet without crushing them under further debt.

Torah Emet
1-5770 Mitzvah 59
September 21, 2009

Negative Mitzvah 59 – This is a negative commandment: Do not take as a pledge (or take as collateral for pawn) any object by main force from a debtor.
Hafetz Hayim – As Scripture says: “You shall not go into his house to take his pledge.” (Deut. 24:10). The lender is not to take a pledged object from the borrower except through the court. And even the representative of the court who comes to remove it is not to enter his house to take it but is to remain outside as Scripture says, “You shall stand outside” (Deut 24:11) The borrower is to go into his house and bring the pledged object to him, as Scripture says, “and the man to whom you make the loan shall bring forth the pledge out to you”, (ibid). As for a guarantor, it is permissible to take an object in pledge from him by force, and to go into his house and take the pledge for it says, “Take his garment, for he has given surety for a stranger (Proverbs 20:16.) So too, if someone has remuneration due him from his fellow-man, whether it is wages for his labor or payment for the hire of his animal, his tools, or his house: he is permitted to take a pledge without the action of the court. He may enter the other’s house and take an article in pledge for his payment. But if he has converted the fee due him into a loan for the other to pay, it is forbidden. It is in force everywhere, at every time for both men and women.

In keeping with our trend to spare the feelings of one who has taken out a loan, we come to the issue of collateral. If the loan was made based on some article possessed by the borrower being chosen as collateral for the loan, and if the borrower defaults on the loan, then the lender is entitled to the collateral. The collateral is held by the borrower until it is needed. ( I don’t think that there is any reason that the lender cannot hold the collateral while waiting for payment on the loan, but that is not the issue here.) If the lender wants to claim the collateral, he cannot force his way into the house to take it. That is a direct violation of the Torah. He must go to the court, prove that he is owed the collateral and then the court sends a bailiff to get the object to give to the lender.
But note that even here the agent for the court cannot enter the home to take the collateral. He must ask the borrower to bring out the object and give it to the agent. While it is possible for the borrower to refuse to bring it out, it would bring on him communal penalties in addition to the monetary one that the court has awarded.
All of this is to protect the borrower from intrusion into his private domain and the pain of having his personal property seized. It must be turned over to the court by the borrower to fulfill his contract with the lender.
The second part of this Mitzvah has to do with a third party, the guarantor of the loan. If someone has guaranteed the loan to the lender on behalf of the borrower, and the guarantor has paid the lender the money owed on the loan, the guarantor does have the right to enter into the borrower’s home to take out an object in pledge. It is telling that this law is derived not from the Torah but from Ketuvim, the third section of the Hebrew Bible. Those who have been reading these lessons a long time know that it is rare to see a quote from outside the Torah. In this case, because of the verse from Proverbs, the guarantor can enter the home of the borrower and take an object of value to reimburse his payment on the loan.
Why can the guarantor do what the lender cannot? The lender and borrower are engaged in a contract. The guarantor is doing the borrower a favor. If he has to make good on the pledge he has fulfilled his position regarding the loan and is entitled to speedy restitution. The guarantor can enter the home of the lender and if he finds an object of value, he can take it and sell it in the market to recoup his expenditure on behalf of the borrower. He can do this unless he converts the money he gave to the lender into a new loan from the borrower; he then is no better than any other creditor and can be refused entry into the home just as the original lender was refused entry. This is all similar to the rules of a paid watchman verses the simple guardian who guards as a favor. If the object is lost, the paid watchman has to reimburse the owner for the loss. If the guardian, who is watching the object as a friend, loses the item, he only has to make an oath that he has no idea where the object is and he is clear of having to pay any restitution.

Best wishes to my readers for a happy, healthy and sweet New Year.

Torah Emet
18-5769 Mitzvot 58
August 31, 2009

Negative Mitzvah 58 – This is a negative commandment: Do not take as a pledge (or take as collateral for pawn) any utensils with which sustaining food is made.

Hafetz Hayim – As Scripture says: “No man shall take the lower or upper millstone to pledge, for he takes a man’s life to pledge.” (Deut. 24:6). Whether he (the creditor) gave the loan for the pledged object, or he took the object after the loan was made, by his own hand or through the court, he would violate this prohibition. If the object taken in pledge was lost or stolen, he would violate this prohibition (irrevocably, past all rectification). Punishment would be deserved for the lower millstone by itself, and for the upper one by itself. And just as the distinctive characteristics of the lower and upper millstones are that they are two articles serving for one purpose, and there is punishment for the one by itself and for the other by itself, so with any two utensils that serve for one purpose: there is a penalty for each by itself. It is in force everywhere, at every time for both men and women.

In this country, we operate by the maxim “Business is Business” and that there is little relationship between what might be the moral and correct path in life and what we need to do to be successful in business. This Mitzvah is a classic example of how Judaism says that this attitude is wrong. Loaning money to someone in need is a great mitzvah. It is forbidden to charge interest on the loan. Good business practice would tell us to get some collateral on the loan. Here the Torah is teaching that there are just some objects that can not be taken as a pledge. The Torah teaches that one can not accept a millstone; neither the upper nor the lower parts are acceptable as security on the loan.

If you have never seen an ancient mill, it consists of two round stones. The lower one is fixed on the ground and the upper is tied to a windmill or a water wheel that turns, grinding the corn/wheat between the two stones and creating flour. Millstones can not work except as a pair. To take either one as a pledge would leave the mill useless and the miller without a livelihood. To create smaller amounts of flour, some homes had smaller “mills” that would be moved by hand to grind the wheat. Without it, how could the family bake bread for their meals?

This is the crux of the matter. Taking the millstone would not only leave the miller without means of earning a living, but would prevent the miller from feeding his family. Thus all items used in making basic food elements are not allowed to be taken as collateral; you cannot leave a family unable to provide itself with food. That is why if you take both millstones, you are also in violation because it, all the more so, makes it impossible to make food to feed the family. Violating this commandment by taking both as collateral would mean a separate violation for each part of the whole that was taken in pledge. You can’t take the water wheel nor interfere in any way to take from a person what a family needs to survive.

Like modern bankruptcy laws, there are some items that are protected from creditors. So too here, Jewish law insists that items needed for food preparation are not acceptable as a pledge. We don’t leave borrowers without the means to survive.

Business cannot be only about making money. It is also about customer relationships, community building and making the world a better place. When a person finds themselves in a difficult economic condition, we don’t take advantage of their situation; we lend a helping hand to lift them back on their feet.

Torah Emet

17-5769 Mitzvot 56-57

August 17, 2009

Negative Mitzvah 56 – This is a negative commandment: Do not refrain from lending money to another Jew for fear of the year of sh’mittah (release), and that the loan will be cancelled.

Hafetz Hayim – As Scripture says: “Beware lest there be a base thought in your heart, saying, “The seventh year, the year of release is at hand” and your eye may be evil, etc. (Deut. 15:9). This is a great sin since the Torah disapproves, calling it base and scoundrelly. It applies to both men and women: by the law of the Torah, at the time that the rule of the jubilee is in effect; and at the present time, by the law of the Sages. Now, Rabbenu Yonah wrote: “At a time when he will not lose his loan, how much more certain it is that if someone hardens his heart not to grant a loan, his sin will be very great.”

Negative Mitzvah 57 – This is a negative commandment: Do not demand payment of a loan over which the seventh year (sh’mittah) has passed.

Hafetz Hayim – As Scripture says: “He shall not exact it of his fellow and his brother because Hashem’s release has been proclaimed (Deut. 15:2)” All this applies at the time that the rule of the jubilee is in effect. In the present, however, when the law of sh’mittah (release) in money matters is only by the ruling of the Sage, one would not violate a prohibition but would rather be doing something forbidden by the Sages.

Let us start with the background. Just as every seventh day is a day of rest and we count seven weeks from Pesach and end with the holiday of Shavuot; so too we count seven years to the year of Sh’mittah, the year of release, when debts would be cancelled and planting/harvesting would be forbidden. At the end of 49 years, that is, seven seven-year cycles, there is a Jubilee year proclaimed where not only debts were cancelled but slaves when free and land sold would revert to its original owner.

In an agricultural society, such laws are needed to prevent land from being collected into large holdings that crowd out the smaller farmers. It prevents farmers from bad crop years and from crushing debt. It also makes sure that anyone who sells their land or their bodies to escape debt, once every 50 years they get a chance to start life over again.

It is not easy to ask someone to forgive a debt. A loan is a business agreement and to ask a lender to forgive a debt is to cost his business money. It should not surprise us that a lender might think, “the year of sh’mittah (release) is almost here and any loans I make may end up cancelled. I think I will not make any more loans until the year has passed.” Who could blame a lender from wanting to make a loan that is almost sure to be cancelled by law?

But, under Jewish law, a loan to a fellow Jew is not really a loan; it is an act of Tzedakah, an act that makes the world a kinder and more just place. The loan is not really being cancelled rather it is transformed into a charitable gift. This is why the Torah considers one who would refrain from loaning money when the year of release is near as one who is “hard hearted”. He is thinking only of his own business and not being considerate of the hard times the borrower is going through. It is therefore a great sin to demand payment of a loan that was cancelled in a sh’mittah year and to not allow it to be cancelled.

As the economy of ancient Israel moved from agriculture to commerce, the laws of release became a burden to the economy. The sage Hillel created a way to have the commercial loans turned over to the courts to collect even after the year of release had started. When the Romans exiled us from the land, all the laws of Jubilee and Sh’mittah ended. Only by the edict of later sages did the laws relating to loans continue but since most monetary matters are now regulated by secular law under the principle of “dina d’machulta dina” “the law of the land is the law” there really is not much need for these regulations relating to loans. Modern Rabbis see the laws that forgive debts as still in force and the pious should still hold by them. Given the restrictions and limits that began with Hillel and because of the Exile, very few really insist on releasing debts in the seventh year in any but a voluntary way. In the modern State of Israel, many of the agricultural laws, including the laws of release have come back into play. Crops are not planted and all debts are assumed to be turned over to the courts and are able to be collected. In all cases, the idea of releasing debts is very limited but making free loans to those in needs remains a very important mitzvah.