Rabbi Feinstein explains that shemittat kesafim was established at a time when people were more righteous. Wwhen the moral level of the population declined and many people were violating the decree, Hillel the Elder instituted the prosbul procedure to stop the widespread transgression. While beit din nowadayscan’t enforce debt collection, its permission is still needed to appeal to the secular courts to do so. Rabbi Feinstein adds that if a borrower gives a check postdated after shemittah, it is considered payment. Even if a stop payment is issued at the time of the check’s due date, the debt is not cancelled because the debt was due after shemittah. The borrower must repay the loan, and the lender may even resort to seizing the debt.
Rabbi Feinstein leans toward the conclusion that since this is a case where beit din would allow the lender to collect payment, going to secular courts might not be viewed as improper. In conjunction with the view that shemittat kesafim is not really observed in our time, this would seem to allow one who forgot to execute a prosbul to collect his debt.
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Recently, my close friend Louis (Reb Leibi) Shonfeld, upon hearing from me that I was occupied with a discussion of shemittah, presented me the sefer D’var HaShemittah, which contain the novella of Harav Meir Sirovitz zt”l. it was published in 1937 and again in 2000 by Machon Tiferes Bachurim of Vilna, a project of Mosdot Moreshet Menachem – Ashdod. I am ever grateful for this precious gift.
Rabbi Sirovitz (commenting on the tenth chapter of Tractate Shevi’it) focuses on a Gemara in Gittin (36b-37b), where we find a statement of Shmuel, who refers to the prosbul as the shame of the judges because with it they can collect their loans any time that is convenient. Shmuel said that if he had the ability, he would have abolish the prosbul. R. Nachman countered and said he would confirm it. The Gemara asks, “Is it not already firmly established [so what need is there to confirm it]?” The Gemara answers, “What he meant was that, ‘I would set forth a rule that even where a prosbul was not executed, it should be considered as if it were written.’”
The Gemara (infra 37a) notes that the Rabbis of the Academy of R. Ashi would transfer their debts to one another. Rashi (sv “masri milayhu”) explains that they did this without formally executing a prosbul even though their master, R. Ashi, would write a prosbul and go so far as to even transfer the trunk of a date tree to the debtor in order that the debt be secured with land. The students’ actions constituted an informal prosbul.
Rabbi Sirovitz extrapolates an interesting point from Hillel’s original enactment of the prosbul. The text Hillel established states as follows: “I hand over to you, so and so, the judges in such and such place, that I may collect all debts owed me by so and so [and any and all debtors] any time I wish.” Rabbi Sirovitz argues that this text doesn’t indicate the necessity of writing a formal document. All that is necessary is a verbal assignment of debt to beit din. Thus, even if someone did not actually write a prosbul, we should consider it as having been duly executed if the debt was verbally assigned to beit din.
How does this argument work considering that the Gemara states concerning the prosbul, “And the Judges sign at the bottom or the witnesses”? Clearly, such a statement indicates that Hillel required a written document. Rabbi Sirovitz argues that although a formal document is unnecessary, we draw one up nonetheless to add force and importance to the matter.