At the conclusion of this sugya (infra 37b), R. Nachman states that a creditor is believed to state, “I had a prosbul in my hand but I lost it.” R. Nachman explains that a person will not “eat forbidden food if he has permitted food.” Tosafot (sv “lo shavik heteira…”) argues that one making such a claim is believed without being forced to swear an oath. Rav goes even further and prompts the creditor with the following question: “Perhaps you had a prosbul but lost it.”
The Gemara concludes with a tannaic dispute in a baraita: The Tanna Kamma maintains that a person who has a shtar chov without a prosbul may not recover his debt. The sages maintain that he may (as he is believed that executed a prosbul – either written or orally – as Rabbi Sirovitz would argue).
The Mechaber (Choshen Mishpat 67:33) rules accordingly that even where a person does not produce a prosbul, he is believed if he says, “I had one but lost it.” The Rema, in his glosses, qualifies this ruling, stating that such is the case only if the debtor is challenging the creditor in beit din and makes this statement before the issuance of a decree. If, however, beit din had already issued a decree releasing the debt, and he was silent, he cannot make any further claim.
We see from Rabbi Sirovitz’s sefer that although a person can argue that he made an informal, oral prosbul, it is nonetheless proper for one to write a formal prosbul both prior to the seventh year and again immediately prior to the eighth year. By doing so, one avoids any possibility of violating the laws of shemittah.
Indeed, as we noted last week, when we cited Rabbi Feinstein, “our custom has been to execute a [written] prosbul. We do so not because later generations decided that they would follow the authorities who deemed that the observance of shemittat kesafim is required in our time, but rather because [drawing up a prosbul document] is an easy and relatively simple matter. The Rabad notes, ‘To do so is just middat chassidut[i.e., exemplary behavior].’”
May we merit that our people be restored to our land to celebrate many a Jubilee in our rebuilt Temple, speedily in our days.