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The Chok Hashmita – Making Laws Relevant Again Jziring The Chok HaShmita – Making Laws Relevant Again [email protected] “Shmita News: Knesset Committee Approves Bill to Erase Debts of the Destitute” July 21, 2015 (Jewish Press) A new “Shmita Law,” releasing more than 20 thousand Israelis who are too poor to meet their debt obligations, has passed on Tuesday in the Knesset Constitution, Law and Justice committee and is on its way to a House vote. Every seven years, according to Torah law, on the year of Shmita (Heb: to drop), all financial debts are forgiven. The rabbis, seeing that a literal application of this law would bring the market to a halt, devised means of forcing debtors to pay up [JZ: Prozbul], but the principle by which people down on their luck get an opportunity to start over is important. Important enough to be on its way to becoming a law in Israel, and how fitting it is that the legislation will take place during 5775, which happens to be a Shmita year…. In the current situation, borrowers who are unable to repay their debts can declare bankruptcy. But many debtors who come from disadvantaged population groups shy away from the bureaucratic complications involved. Instead, they submit to an examination of their financial ability by the Execution Office Registrar, who assigns them lower monthly payments according to their income. But that level of payment is not enough to return the debt, and sometimes not even the interest, while in the meantime the debtor can’t use credit cards, open a bank account, establish a business or leave the country. “About 22 thousand people, who have been living under the shadow of multiple debts and exorbitant interest rates can breathe a sigh of relief,” said Minister Shaked. “I congratulate the Constitution Committee, which approved the bill and contributed to a welcome change in Israel’s society and economy.” According to estimates provided by the Justice Ministry in the past, the average debt of a person who is entitled to debt forgiveness is $65 thousand. Most of the debts are owed to institutions such as banks, government agencies and commercial companies. 1. רמב"ם הלכות שמיטה ויובל פרק ט הלכה א: מצות עשה להשמיט המלוה בשביעית שנאמר שמוט כל בעל משה ידו, והתובע חוב שעברה עליו שביעית עבר על לא תעשה שנאמר לא יגוש את רעהו ואת אחיו . הלכה ב :אין שמיטת כספים נוהגת מן התורה אלא בזמן שהיובל נוהג שיש שם שמיטת קרקע, שהרי ישוב הקרקע לבעליו בלא כסף, ודבר זה קבלה הוא, אמרו חכמים בזמן שאתה משמיט קרקע אתה משמיט כספים בכל מקום בין בארץ בין בחוצה לארץ, ובזמן שאין שם שמיטת קרקע אין אתה משמיט כספים בשביעית אפילו בארץ . הלכה ג :ומדברי סופרים שתהא שמיטת כספים נוהגת בזמן הזה בכ"מ, ואף על פי שאין היובל נוהג כדי שלא תשתכח תורת שמיטת הכספים מישראל . הלכה טז :כשראה הלל הזקן שנמנעו מלהלוות זה את זה ועוברין על הכתוב בתורה השמר לך פן יהיה דבר וגו' התקין פרוזבול כדי שלא ישמט החוב עד שילוו זה את זה, ואין הפרוזבול מועיל אלא בשמטת כספים בזמן הזה שהיא מדברי סופרים, אבל שמטה של תורה אין הפרוזבול מועיל בה. +/השגת הראב"ד/ אבל שמטה של תורה וכו'. א"א זה אינו מחוור דאביי הוא דאמר הכי אבל רבא פליג ואמר הפקר בית דין הפקר והלכך נוהג בכל זמן +. הלכה כח :כל המחזיר חוב שעברה עליו שביעית רוח חכמים נוחה הימנו, וצריך המלוה לומר למחזיר משמיט אני וכבר נפטרת ממני, אמר לו אעפ"כ רצוני שתקבל יקבל ממנו שנאמר לא יגוש והרי לא נגש, ואל יאמר לו בחובי אני נותן לך אלא יאמר לו שלי הם ובמתנה אני נותן לך . הלכה ל :מי שנמנע מלהלוות את חבירו קודם השמיטה שמא יתאחר החוב שלו וישמט עבר בלא תעשה שנאמר השמר לך וגו', וחטא גדול הוא שהרי הזהירה עליו תורה בשני לאוין שנאמר השמר לך פן וגו', וכל מקום שנאמר השמר או פן או אל הרי זה מצות לא תעשה, והתורה הקפידה על מחשבה רעה זו וקראתו בליעל, והרי הוסיף הכתוב להזהיר ולצוות שלא ימנע אלא יתן שנאמר נתן תתן לו ולא ירע לבבך בתתך לו וגו', והבטיח הקדוש ברוך הוא בשכר מצוה זו בעולם הזה שנאמר כי בגלל הדבר הזה יברכך וגו Halacha 1: It is a positive commandment1 to nullify a loan in the Sabbatical year, as [Deuteronomy 15:2] states: "All of those who bear debt must release their hold." A person who demands payment of a debt after the Sabbatical year passed2violates a negative commandment,3 as it is stated [ibid.]: "One shall not demand [payment] from his friend and his brother." Halacha 2: The nullification of debts applies according to Scriptural Law only in the era when the Jubilee year is observed4 and [the sale of] land is also nullified, for the land [that has been sold] returns to its original owners without financial payment.5 This matter was conveyed through the chain of tradition. Our Sages declared:6 In the era when you nullify [the sale of] land, you nullify debts everywhere, whether in Eretz Yisrael or in the Diaspora. In the era when you do not nullify [the sale of] land, you do not nullify debts anywhere, even in Eretz Yisrael. Halacha 3: According to Rabbinic Law, the nullification of debts applies in the present age in all places,7 even though the Jubilee year is not observed.8 [This is a decree, instituted] so that the concept of the nullification of debts will not be forgotten by the Jewish people. Halacha 16: When Hillel the Elder saw that the people would refrain from lending to each other and thus violated the Scriptural charge [Deuteronomy 15:9]: "Lest there be a wicked thought in your heart,"43 he ordained a pruzbol44 so that debts would not be nullified and people would lend to each other. A pruzbol is effective only with regard to the nullification of debts in the present era which are a Rabbinic institution.45 A pruzbol is not effective with regard to the nullification of debts by Scriptural Law.46 Halacha 28: [Whenever] anyone returns a debt [despite the fact] that the Sabbatical year has passed,83 the spirits of our Sages are gratified because of him.84 [When receiving the payment,] the lender must say to the one who is making restitution: "I am nullifying [the debt] and your [obligation] to me has been released."85 If the debtor says: "Nevertheless, I desire that you accept it," he should accept it. For the Torah states: "One shall not demand [payment]," and payment was not demanded.86 [The debtor] should not tell [the creditor]: "I am giving them to you as [payment of ] my debt. Instead, he should tell him: "[The money] is mine,87 and I am giving it to you as a present." Halacha 30: One who refrains from lending money to a colleague before the Sabbatical year lest [the repayment] of the debt be delayed and it be nullified, violates a negative commandment, 89 as [Deuteronomy 15:9] states: "Be careful [lest there be a wicked thought in your heart....]" It is a severe sin, for the Torah warned against it with two adjurations, for it is written: "Be careful lest," and whenever the Torah uses the expressions "Be careful," "lest," or "Do not," it is communicating a negative commandment.90 The Torah objected to this evil thought and called it "wicked" and the the verse continued warning and commanding one not to refraining [from lending], but to give [the loan], as [ibid.:10] states: "You shall certainly give him and your Heart should not regret giving him." [Indeed,] the Holy One, blessed be He, promised that the reward for this mitzvah will be granted in this world,91 as [the verse continues:] "Because of this God will bless you." 2. חזקוני דברים פרק טו פסוק ב . שמוט כל בעל משה ידו מלוה היא משמטת ולא גזל ופקדון. לא יגש המשה את רעהו ואת אחיו כי קרא הלוה שמטה לשדותיו לשם שמים ואין לו במה יפרע ואינו זורע ואינו קוצר, אבל בשאר שנים אדם זורע וקוצר ואם המלוה דוחקו אומר לו המתן לי עד שאמכור את תבואתי. Don’t claim: One who claims from his friend or his brother [cannot claim during shmita] for the borrower has relinquished his fields for the sake of God and has nothing to repay the loan with, as he does not plant or reap. In other years, however, a person plants and reaps, and if the lender pressures him, he can say “wait for me until I sell my produce.” 3. תלמוד בבלי מסכת בבא בתרא דף קעד עמוד א פריעת בע"ח מצוה -Repaying a loan to a creditor is a mitzvah 4. אורים ותומים על סימן סח ומה עצום מצוה זו, וטעם יש בה, ועל ידה ידע איש הישראלי אשר ימֵ ינו כצל על הארץ, וגרים ככל אבותיו אריסי בתי אבות ולה' הארץ ומלואו, ויֵדע כי לא שלֵמּות אנושי לעסוק בקבוץ הקִניָנים ולאסוף חמרים חמרים… כי יראה כי שבתה הארץ שבת לה', ויד הכל שוה בארץ אשר עיני ה' בה תמיד… עשיר ורש נפגשו… ועבד חופשי מאדוניו, ]והיא שנת שביעית… אשר ישליך אדם אלילי כספו, ולא יאמר אלוקינו למעשה ידינו, הוא היקום והרכוש, כי אז אין כסף נחשב לכלום… ולכך נוהג שמיטת קרקע …וכספים בשנה ההיא ומצוה זו גרמה לישראל שלא נשתקעו יותר מדי בעסק משא ומתן … כי לזו צריך הלוָאת איש באחיו ולהיות נושה איש ברעהו מזמן לזמן, וזה אי אפשר בהחזיק מצוה הנ"ל, כי בהגיע תור השמיטה ישמט הנושה ויצא נקי מכל חובו, ואם כן היה חובה עלינו להחזיק במדת ההסתפקות… מבלי לשום כל חושו וחילו לאסוף עושר שלא כמשפט התורה כי אם להיות מתמימי דרך ההולכים בתורת ה' יבטח באלוקי יעקב, הוא הנותן לחם לכל בשר… וכאשר היו אבותינו לא פנו אל הון, רועי צאן, מגז כבשים יתחממו, ?ומחלב עתודים ישתו וברכת ה' היא תעשר… ואם כן היא מצוה זו, למה לא נדבק בה בתכלית הדביקה ושמחה[ How great is this mitzvah, and the reason for it! Through it, a Jew, whose days are like a shadow on the earth, who lives like all his forefathers as a sharecropper in ancestral fields, as to God is the land and all that is in it, shall know that human perfection does not come from collecting things and gathering heaps and heaps of them… for he shall see that the land has rested for God, ad all are equal in the land that God always looks at… the rich and poor shall meet… and the slave shall be free from his master….
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