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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

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Summary of our response up to this point: The Torah (Exodus 23:10-11) tell us that all land must lie fallow every seventh year. 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 arrives. Our Sages ruled that the shemittah 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 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.

The Gemara (Gittin 32b-33a) cites a dispute regarding the number of judges or witnesses required for a prosbul – two or three. The Rambam and Rabbi Yosef Caro rule that only two are required for a rabbinical document. Even so, commonly distributed prosbul texts usually allocate space for three signatures.

The Ma’hari ben MalkiTzedek writes that one should ideally draw up a prosbul document at the end of the sixth year, prior to Rosh Hashanah of a shemittah year, so that every loan from the preceding six years remains collectible. We also write a prosbul at the end of shemittah so that loans of that year continue to be collectible into the eighth year; the cancelation of shemittah-related loans occurs at the conclusion of the seventh year. In fact, the document need only remain intact on the last day of the seventh year. Even if one destroys the document afterwards, the loan remains collectible.

* * * * *

Rabbi Moshe Sternbuch (Responsa Teshuvot VeHanhagot vol. 2, Choshen Mishpat 706) discusses whether a prosbul is necessary altogether.

He cites the well-known question of the Chelkat Yoav (#46): “Why did Hillel the Elder institute the prosbul? Surely the lender has at his disposal a means of obviating the remission of debts by forgiving timely payment and extending the length of the loan on the eve of Rosh Hashanah of motza’ei shemittah [i.e., the eighth year].”

The borrower would obviously not be pleased by such a “forgiveness.” Nonetheless, the Ra’ah, citing the Ran (to Ketubbot 53) maintains that a forgiveness effectuated against an individual’s will is still valid.

Rabbi Sternbuch cites an opposing view in Gilyonei Hashas. There, the Mahari Engel argues that forgiveness against one’s will is not effective: “Forgiveness against one’s will should not [extend] the time [to repay the loan].”

Rabbi Sternbuch points out, however, that the Ran (Gittin 37a – Ran folio, 19b s.v. “Umistavra”) notes that if we give the borrower a piece of land to secure a loan, even against his will, the rule of “zachin le’adam – we benefit a person even without his knowledge” applies (since owning land is considered to be a great benefit).Since the essence of deeding him a piece of land, no matter how small, is considered a benefit, we may do so. (This is probably based on the Midrash [Vayikra Rabbah 22:1], which states: Is there any greater void than “one who possesses no land”?)

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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.