Last week, we explained that Hillel the Elder instituted the prosbul as a favor to the poor in order to enable them to secure needed funds from wealthy members of the community. He recognized that the rich are to be valued, not vilified, as they are the source of such resources.
We also examined the responsum of the Gaon Rabbi Moshe Feinstein (Iggrot Moshe Vol. 2, Choshen Mishpat 15) concerning a lender who forgot to execute a prosbul but still wishes to be repaid. Rabbi Feinstein writes that refusing to repay a loan is wrong – even if shemittat kesafim is biblical. Rashi writes that a lender may even threaten a borrower to “suspend him from a tree” until he agrees to pay.
Rabbi Feinstein adds that Jews in many localities did not observe the laws of shemittat kesafim or write a prosbul. These were only generally observed in lands close to Eretz Yisrael.
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Rabbi Feinstein cites several authorities, among them the Rosh, the Tur (Choshen Mishpat 67:3-6) and Maharil (cited in Darkhei Moshe, ad loc.), whose view is that shemittat kesafim must be observed today.
He notes, however, that Rabbi Moshe Isserles (both in Darkhei Moshe and his notes on the Shulchan Aruch) names others (Razeh, as cited by Gr’a, Ran, and Rabad) who maintain that shemittat kesafim is not in force in our time. Rabbi Isserles concludes that communities in Ashkenaz rely upon these views not to observe shemittat kesafim nowadays.
“Nevertheless,” Rabbi Feinstein writes, “our custom has been to execute a prosbul. We do so not because later generations decided they would follow the authorities who believe observing shemittat kesafim is required nowadays, but rather because [drawing up a prosbul] is an easy and simple matter. The Rabad notes, ‘To do so is middat chassidut [i.e., exemplary behavior].’”
Rabbi Feinstein explains that the fact that Rabad refers to drawing up a prosbul as a middat chassidut indicates that Ashkenazic communities never thought it was obligatory to observe shemittat kesafim in exile. Rabbi Feinstein points out that we are keeping up the custom of earlier generations that did not observe shemittat kesafim but would nevertheless collect their debts through beit din. At any rate, we follow the directives of Rema in all halachic matters.
Rabbi Feinstein also cites the Aruch HaShulchan (Choshen Mishpat 67:10), who provides yet another reason for why many localities did not observe shemittat kesafim: “Since the judges of our rabbinic courts do not have the power to enforce the collection of debts, a prosbul is of no value. Thus, without the prosbul they could not enforce shemittat kesafim either for that would cause people to violate an explicit prohibition.”
Rabbi Feinstein expresses his hesitance to fully agree with Aruch HaShulchan. Shemittat kesafim was established at a time when people were more righteous, but it remains a permanent decree for all generations. When the moral level of the population declined, Hillel the Elder instituted the prosbul procedure to stop the widespread transgression. While our rabbinic courts nowadays do not have the power to enforce debt collection, their permission is still needed to appeal to the secular courts for that purpose. The prosbul is important because it serves as a document that hands over the right of collection to a rabbinic court. Since one must seek permission from beit din before resorting to secular courts to adjudicate monetary disputes between two Jews (as stated in the Shulchan Aruch, Choshen Mishpat 26:2), a prosbul is necessary so that one is in some sense collecting via beit din.
Rabbi Feinstein adds that if a borrower gives a check postdated after shemittah, it is considered payment, and one cannot cancel payment on such a check. Even if a stop payment is issued at the time of the check’s due date, the debt is not canceled (and wouldn’t be even in the Talmudic era) because the debt was, in fact, due after shemittah. The borrower must repay the loan even if the lender is unable to find a beit din to enforce repayment. The lender may even resort to seizing the debt if necessary.