Question: I recently loaned money to a friend who has been able to repay only part of it. This was an interest-free loan. We exchanged a signed IOU, not a proper shtar with witnesses, since I have always trusted her integrity and only wanted a document that confirms what was loaned and what was repaid. Now that shemittah is approaching, what should I do? Should I forgive the loan? And if my friend is not able to repay it, may I deduct the unpaid money from my ma’aser requirement?
Summary of our response up to this point: Last week, we discussed the source of the mitzvah of shemittah. Exodus 23:10-11 instructs us that every seventh year all land must lie fallow. Any produce that grows on its own is hefker and may be taken by anybody, especially the indigent. The Rambam writes that in addition to shemittat karka, remission of land, there is also shemittat kesafim, the remission of monetary matters, when shemittah comes along. Our Sages ruled that these laws still apply (rabbinically) despite the fact that the Temple was destroyed and the Jewish people are dispersed throughout the world.
Hillel the Elder (Shevi’it 10:3) feared that people would refuse to aid the poor and would withhold loans as shemittah approached knowing the debts would soon be forgiven. Therefore, since shemittat kesafim is only a rabbinic law nowadays, he invoked the principle of “Et la’asot LaShem, heim heferu Toratecha” and created a document that would enable people to collect loans despite the arrival of shemittah. The document is called “prosbul,” a Greek term implying it helps both the rich and the poor. The rich won’t lose their money and the poor will be able to borrow money as shemittah approaches.
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The Rambam’s statements regarding prosbul are based on the Gemara (Gittin 36a and Shevi’it 10:3-6) and Sifrei (Deuteronomy, Re’eh 113), where we find the basic text of the prosbul (see Rambam, Hilchot Shemitta 9:18):
“I hand over to you, so-and-so and so-and-so, the judges in such-and-such-a-place, every debt owed to me that I will collect at a time I choose. The judges or the witnesses affix their signatures at the bottom of the document.”
The Rambam (Shevi’it, ad loc.) explains that the Mishnah’s statement that “the judges or the witnesses sign at the bottom” teaches us that it is permissible in a prosbul for the judges to be witnesses, and conversely, for the witnesses to be judges, pursuant to the general rule that regarding rabbinical matters a witness may also be a judge.
The Gemara (Gittin 32b-33a) cites a dispute as to the number of judges or witnesses required for a prosbul. R. Nachman is of the view that only two are required while R. Sheshet rules that three are needed. R. Sheshet’s logic is based on the fact that a tribunal of judges typically means three judges, while R. Nachman counters that the Mishnah’s wording – “so-and-so and so-and-so” – indicates that only two are required.
Thus, although the commonly distributed printed prosbul documents leave space for the signatures of three witnesses or judges, the Rambam (Hilchot Ishut 7:10) and Rabbi Yosef Caro (Even Ha’ezer 141:66) rule that only two judges or witnesses are required.
The Ma’hari ben MalkiTzedek on Tractate Shevi’it (ad loc. 10:3-6) writes the following concerning when one should draw up a prosbul document:
“This Mishnah is explained only in accord with the Tosefta (end of Shevi’it 8:11), which states, ‘When are we to write a prosbul? On the eve of Rosh Hashanah of the seventh year. But if he wrote it on the eve of the eve of the eighth year, even though he subsequently relented and tore it up, he may still collect the loan with it even after a long time. Rabban Shimon b. Gamliel states that any loan [transacted even] after a prosbul has been drawn up is not canceled.’”