On the last day of the month of Elul, after allowing the land to lie fallow during the entire Sabbatical year, the law of shemitat kesafim – remission of debts – comes into effect. Shemitat kesafim is a commandment that requires debts to be forgiven and forgotten, as the Torah teaches: “This shall be the nature of the remission: every creditor shall remit the due that he claims from his fellow; he shall not dun his fellow or kinsman, for the remission proclaimed is of the LORD” (Devarim 15:2). By freeing borrowers from the responsibility of paying their debts, we allow them the opportunity to begin anew with a clean slate. The Torah does not offer the specific reasoning behind this commandment, but from context we can understand that it stems from a desire to eradicate poverty and offer equal opportunity to all.
There is a downside, however. If lenders are required to forgive debts, someone must owe them money. And in order for others to owe them money, the lenders must have been willing to generously lend to them. The entire concept of shemitat kesafim begins with good people who are willing to offer an opportunity to others – to loan a sum of money to start a business or support a new venture. Without such people, shemitat kesafim would not exist. Yet now, the Torah is asking these good people to be even better and to forgive collection of the money that is owed to them.
The Torah understands that most people will have a difficult time fulfilling this commandment and will simply choose to refrain from lending money to others out of fear that the debt will not be repaid. Admittedly, there is a positive commandment to lend money (Maimonides, Sefer HaMitzvot, No. 197), and like every commandment it has specific rules. Nevertheless, deciding to fulfill this commandment is left to the discretion and generosity of the lender.
The Torah chose to deal with this problem by creating a prohibition: “Beware lest you harbor the base thought, ‘The seventh year, the year of remission, is approaching,’ so that you are mean to your needy kinsman and give him nothing.” The Torah warns us that we must continue lending as usual, even though the shemitah year is approaching, recognizing that otherwise no one could borrow. But it appears that the very thing that the Torah feared, in fact took place.
In the end, the day came when Hillel the Elder recognized that the lenders had stopped lending. With the shemitah year approaching and, as a consequence, concern about near-term income, it became truly difficult to lend money. This is not the time for a responsible person to freely distribute money. “A wise man has his eyes in his head” (Kohelet 2:14); “He who lays in stores during the summer is a capable son” (Mishlei 10:5). On the other hand, society cannot allow a freeze in lending to become the norm. Loans are the lifeblood of a healthy economy, and a lack of liquid capital is a critical barrier to healthy markets. This reality led Hillel the Elder to respond in a forceful manner by establishing the pruzbul. The pruzbul obligated borrowers to repay their loans without concern for the shemitah year.
Hillel the Elder’s new decree is difficult to understand. How can he simply come up with an idea that abolishes a Torah commandment entirely?
The answer is that Hillel did not abolish the commandment, rather he applied an existing “exception to the rule” more broadly. The Mishnah in Tractate Shevi’it teaches that shemitat kesafim does not erase all debts – we must understand the nature of the debt. For example, if someone purchased merchandise on credit it is not a loan, but a deferred payment, so the debt must be paid. Money owed to someone who worked and is waiting to receive his salary must be paid. There are other categories of monetary obligations that are not affected by shemitah, like the monetary penalties meted out by the Torah for slander, for seducing a woman, and so forth.
Another debt that remains unaffected by shemitat kesafim is the case of “one who entrusts his contracts to the judicial court” (Mishnah Shevi’it 10:2). When a person activates the official system by transferring the responsibility for collecting his debts to the court, we view the debt as having already been collected. We can rely on the court to ensure that the money will reach its owner. The moment that the responsibility to collect was turned over to the collection system of the courts, the original relationship ends and the personal connection between the parties as borrower and lender is terminated. From then on, the debt becomes a court decision that must be carried out, and the obligation to repay the loan remains in place.
Hillel did not use white-out to erase an entire commandment from the Torah. He simply understood that the unique rule of “one who entrusts his contracts to the judicial court” could be expanded to solve the serious problem regarding loans. He believed that it is possible to suggest that every lender sign a document turning over to the court all loans that had not yet been collected. Such an arrangement would effectively keep shemitat kesafim from being applied to those debts.
From this perspective, while innovative, Hillel’s idea is simply a legitimate use of a legal, permissible method to avoid cancellation of the loans. We are familiar with the use of such loopholes in other areas of Jewish law. A farmer can bring harvested fruits into his house through a window in order to avoid the obligation to separate tithes from them. A person can sell a share in his animal to a non-Jew in order to avoid giving the first-born offspring to the kohen. People can lend money with interest by signing a heter iska agreement or keep hametz in their homes on Pesach by formally selling it to a non-Jew. These cases are not all identical and the halakhic mechanism behind each of them may not be the same, but the common denominator is that a person is allowed to approach requirements of Jewish law in a similar manner to payment of taxes to the government. We all recognize the government’s need for an income stream, but we hardly celebrate the opportunity to pay the taxes that we owe. We turn to our accountant in an attempt to use all legal means to reduce our tax liability to the bare minimum. There is even a name for this – “tax planning.” Similarly, in the realm of Jewish law we recognize the possibility of “halakha planning.” We can plan the situation so that fulfilling the commandments will not be overly difficult for us.
The Gemara also asks how Hillel could have established a law that negates a clearly stated biblical command, and explains that since the laws of the Sabbatical year in the contemporary world are rabbinic in nature, he is not really doing away with a commandment. For this reason, a pruzbul can be written that will allow lenders to collect the money owed to them “as if” the laws of shemitat kesafim do not apply (Gittin 36a). The question posed by the Gemara is somewhat surprising, since Hillel did not uproot a commandment, he merely developed a new approach. Yet the Gemara does not offer this straightforward answer, choosing instead to explain why this commandment could be abrogated. It appears that from the perspective of the sages, Hillel’s rule does contain some element of uprooting a biblical commandment, even though there is no clear statement to that effect in Hillel’s teaching.
Perhaps what was bothering the amora’im was not so much the method as the outcome. The amora’im were concerned that if everyone followed Hillel’s recommendation, not even a memory of the Torah’s unique law would remain. We know that with modern technology we can make Shabbat into an ordinary weekday without transgressing a single prohibition. Sometime in the future, a day may come when we will be able to activate all of our electronic devices simply by thought, without moving a muscle, and our lives on Shabbat would be no different than during the week. But even if the technology meets every requirement of Jewish law, the outcome would be problematic and would pose a serious challenge to the essence of halakhah. For is Jewish law a set of formal rules or does it present a set of moral, educational values?
I believe that the Gemara's question is the important point in this discussion, since it questions the approach of “religious technicians” who believe that Jewish law should be viewed as a mathematical formula. It argues against those who believe that it is possible to obtain halakhah at the nearest cash machine while also choosing the desired result in advance. There is certainly a formal aspect to Jewish law, but it also has a vital, formative element. The secret of the transition between these two motifs in the world of Torah and halakhah is a delicate task, and it is the most fundamental tool for repairing the world within the kingdom of God.
