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?
Name Withheld
Answer: First of all, when arranging a loan, especially between friends, it is always best to record it in a document. The reason is simple: without a document, it is very hard to prove that a loan ever took place. Even if the loan was given in the form of a check, the recipient might argue that the check was an outright gift. Therefore, it is best to record a loan with a document stating that the borrower acknowledges that he/she received, on such and such a date, a loan for such and such an amount. In this manner, friendships will not be ruined and the lender will be able to collect his money.
Let us now review the laws of shemittah. The Torah states in Parshat Mishpatim (Exodus 23:10-11), “Veshesh shanim tizra et artzecha ve’asafta et tevuatah, veha’shevi’it tishmetena u’netashtah, ve’achlu evyoney amecha – Six years shall you sow your land and gather in its produce, and in the seventh, you shall leave it untended and unharvested, and the destitute of your people shall eat [of it].”
The Rambam (loc. cit.) explains that shemittah also cancels all loans, as the Torah states in Parshat Re’eh (Deuteronomy 15:2), “Zeh devar ha’shemittah, shamot kol ba’al masheh yado asher yasheh bere’eh. – This is the matter of the remission: every creditor shall cancel his authority over what he has lent his fellow.” One who comes to collect a debt after the Sabbatical year has passed violates the prohibition of “Lo yigos et re’ehu ve’et achiv ki kara shemitah LaShem – He shall not press his fellow or his brother, for He has proclaimed a remission for G-d” (ibid.).
The Rambam continues: The laws of shemittat kesafim, the remission of money, do not apply if Yovel is not observed. Yovel was a year when there was also shemittat karka, when all land returned to their original owners without any monetary reimbursement for the intervening owners.
We have a tradition that ties shemittat karka to shemittat kesafim. The Rambam quotes the Gemara (Gittin 36a) and writes: Our Sages stated that when you cancel transactions of land, you should also cancel all monetary debts everywhere, whether in the Land of Israel or in the Diaspora. In our time, however, when there is no shemittat karka, there is also no shemittat kesafim, even in the Land of Israel.
The Rambam points out that our Sages established that the laws of shemittat kesafim should continue to be observed even in our time when we are dispersed throughout the world, bereft of our Temple in Jerusalem, with Yovel no longer observed. They made this enactment so that the laws of shemittat kesafim would not be forgotten by the Jewish people.
Concerning the remission of debts, the Torah says, (Deuteronomy15:9) “Hishamer le’cha pen yih’yeh davar im le’va’v’cha v’li’al lemor korvah she’nat ha’shemittah v’ra’ah ein’cha b’achicha ha’evyon v’lo titen lo v’karah a’lecha el Hashem v’haya b’cha chet – Beware lest there be a lawless thought in your heart, saying, ‘The seventh year approaches, the remission year, and you will look malevolently upon your destitute brother and refuse to give him – then he may appeal against you to Hashem, and it will be a sin upon you.” Realizing that people were violating this precept, Hillel the Elder (see Shevi’it 10:3) created a document, a “Prosbul,” that would circumvent the remission of debts.