Truth about document called the prozbul

Insight into Parshat Re'eh
By RABBI SHMUEL JABLON

In this week's Torah portion, we learn about an important aspect of shmitta (the sabbatical year). It is also an aspect which has been sadly misunderstood.

In the beginning of D'varim chapter 15 (verses 1-2) we are told, "At the end of the seventh year you will have a shmitta (sabbatical remission). Any creditor will give over authority for what he has lent to his fellow. He will not press his fellow or his brother as this is called a shmitta to G-d."

The Torah teaches us that part of the observance of the sabbatical year (though there is a debate whether this would be at the beginning or the end of the year) must include forgiveness of loans made to fellow Jews. Hashem (G-d) also warns us that, as this year approaches, we should not be tempted to refuse loans to our poor brothers and sisters. This would be viewed by Hashem as a sin (verse 9).

In Mishna Shvi'it (the tractate that discusses the laws of the sabbatical year) 10:3, we learn that Hillel saw that the Jewish people were violating this warning and indeed refraining from loaning money to the poor. Thus, he instituted the prozbul. This was a document that, in essence, turned over supervision of the loan to the bet din (Jewish court), thus allowing the creditor to collect his debt even after the sabbatical year.

Since the creditor will still be paid back for the loan, on the surface the prozbul seems to go against the "spirit" of annulling debts in order to achieve the ethical result of maintaining the ability of the poor to get loans. Out of context, the prozbul seems like an "end run" around the Torah's law and is offered as "proof" of the rabbis changing the laws of Torah to fit ethical needs. Yet, this is simply not the case.

As is discussed in the Gemara in Messechet Gittin (page 36a) and codified by later rabbinic authorities (such as the Rambam in Hilchot Shmitta V'Yovel Chapter 9 and Rav Kook in his introduction to Shabbat haAretz), the Torah commandment of the sabbatical year applies only at a time when the Jubilee Year can also apply.

The Jubilee Year is only commanded by the Torah when all Jews are in the land of Israel. Thus - while we are dispersed around the world - shmitta, like certain other laws, is not required by the Torah. However, the rabbis enacted their own law that while in the land of Israel we must continue to observe shmitta, so that its observance will not be forgotten (prior to the entire Jewish people's eventual return to the land of Israel).

Thus, Hillel, great as he was, most certainly did not change a law of the Torah in order to fit the needs of his time. He and his bet din enacted a rabbinic exception to a rabbinic law. As the Rambam notes, when all Jews again live in the land of Israel and the observance of the sabbatical and jubilee years are Toraitic commandments, the prozbul will no longer be able to be used.

Like so many other texts, Hillel's prozbul teaches us an important law. When learned in context, it also teaches us the real limits of rabbinic power.

Rabbi Shmuel Jablon is the head of lower school at Fuchs Mizrachi School, author of "Jewish Answers" and host of www.rabbijablon.com.