Rabbi Dr. Aryeh Cohen
|Abstract: The Mishna (Gittin 4:3) states that Hillel established the prozbul to bypass the biblical remission of debts after the shemitah (sabbatical) year. In this essay I suggest that prozbul is one and the same as “one who submits his contracts to the court” that appears in the preceding Mishnah (Gittin 4:2), and is in fact part of a midrashic explanation of the biblical warning against not lending money in the years leading up to the seventh year.|
The Problem with Shemitah’s
Remission of Debt
The Torah mandates that every seventh year shall be a year of remission of debts (Deut. 15) in addition to the Levitical mandate demanding that the land lie fallow (Lev. 25). The debt remission brings in its wake potential economic problems. If the debt is cancelled in the seventh year, potential lenders would be wary of lending money and the poor would be left without resources. This concern is already articulated in the Torah, which warns against the problem of not lending for fear that a loan would not be repaid in the seventh year (Deut. 15:9):
הִשָּׁמֶר לְךָ פֶּן-יִהְיֶה דָבָר עִם-לְבָבְךָ בְלִיַּעַל לֵאמֹר, קָרְבָה שְׁנַת-הַשֶּׁבַע שְׁנַת הַשְּׁמִטָּה, וְרָעָה עֵינְךָ בְּאָחִיךָ הָאֶבְיוֹן, וְלֹא תִתֵּן לוֹ; וְקָרָא עָלֶיךָ אֶל-ה’, וְהָיָה בְךָ חֵטְא.
|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. He will cry out to the Lord against you, and you will incur guilt.|
Hillel Establishes the Prozbul
To bypass the biblical law, the Rabbis created a legal mechanism they called prozbul,1 which releases the loan from the strictures of the seventh year remission. Notably, the prozbul is listed in a series of laws collected in the fourth chapter of Mishnah Gittin whose given reason is מפני תקון העולם – “for the good order of the world”2:
משנה גיטין ד:ג
הלל התקין פרוזבול מפני תקון העולם.
m. Gittin 4:3
Hillel ordained the prozbul for the good order of the world.3
The Bavli (b. Gittin 36a-37b) comments on this statement by bringing it into dialogue with a parallel mishnah found at m. Shvi’it 10.4
בבלי גיטין לו ע”א-ע”ב
“הלל התקין פרוסבול וכו:”
תנן התם: פרוסבול אינו משמט
זה אחד מן הדברים שהתקין הלל הזקן
שראה את העם שנמנעו מלהלוות זה את זה
ועברו על מה שכתוב בתורה ‘השמר לך פן יהיה דבר עם לבבך בליעל וגו’
עמד והתקין פרוסבול
וזה הוא גופו של פרוסבול
מוסרני לכם פלוני ופלוני דיינין שבמקום פלוני שכל חוב שיש לי אצל פלוני שאגבנו כל זמן שארצה
והדיינים חותמין למטה או העדים.
b. Gittin 36a-b
“Hillel established prosbul…”
It is taught there [in a Tannaitic text] (m. Shvi’it 10:3): [If a loan is covered by a] prosbul [it] is not released [in the seventh year].
This is one of the things that Hillel the Elder established.
For he saw the people, that they refused to lend to each other.
They transgressed that which is written in the Torah: “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.]
He rose5 and established prosbul.
This is the body of the prosbul (m. Shvi’it 10:4):
And the judges sign below or the witnesses.
As described in m. Shvi’it, the creditor goes to the court and converts them from personal loans—covered under the prohibitions of the shemittah year—to corporate loans that do not fall under the shemittah regulations. Note that as indicated in my translation, it is unclear whether the term מוסרני means that the creditor has to actually “give over” the documents to the court or merely to make a “declaration.”8
Other Solutions to the
Remission of Debt
Shvi’it lists two other ways of circumventing the remission of such loans after the shmittah year:
משנה שביעית י:ב-ג
ב הַמַּלְוֶה עַל הַמַּשְׁכּוֹן,
ג פְּרוֹזְבּוּל אֵינוֹ מְשַׁמֵּט.
|M Shvi’it 10:2-3
2.One who lends on the basis of a surety,
3. Prozbul does not remit.
The Bavli (Gittin 37a) explains these two cases as follows:
- Borrowing on the basis of a surety (mashkon) gives the creditor a provisional ownership of the surety, making it is as if the loan has already been repaid and thus not cancelled in the seventh year.
- Submitting contracts to the court relies on the power of the court to seize assets at any time.
These alternative solutions raise several questions. If the first option is available, why was prozbul created? After all, the first option is a much simpler solution to the problem. And how does the second option differ from prozbul, which similarly requires submitting the contracts to the court? In addition, how are we to understand the story about Hillel establishing the prozbol in the second half of this Mishnah, and what are we to make of the overall structure of m. Shvi’it as it relates to prozbol?
Understanding the Structure
of m. Shvi’it 10
Shvi’it 10 discusses the remission of debts in the seventh year and lists cases where remission does not take place. Initially, prozbul, appearing at the beginning of mishnah 3, seems to be just another unremarkable item in a list of exceptions to the seventh year remissions. However, none of the other items in the list have a foundation narrative like the story about Hillel establishing the prozbol.
This suggests that our mishnah is composite, having edited together two sources about prozbul – one, a list of exceptions to seventh year remissions in which prozbol appears, and another, which focuses on the history of the prozbol.
Other tannaitic sources about prozbul also appear to consist of two textual traditions that were stitched together. One appears in Midrash Tannaim9 to Deut 15:3:
ואשר יהיה לך את אחיך תשמט ידך
.1לא המוסר שטרותיו לבית דין. מיכן התקין הלל פרוזבול .
.2 וכך דרש הלל ‘ואשר יהיה לך את אחיך,’ לא המוסר שטרותיו לבית דין.
|“And that which you have of your brother’s release it.”
1. Not one who has delivered his contracts to the court. From here Hillel ordained prozbul.
2. And so Hillel read midrashically: “And that which you have of your brother’s…” Not one who has delivered his contracts to the court.
The midrash is saying two different and possibly contradictory things. The first part begins with a midrashic reading of the term “of your brother’s” (Deut. 15:3) as excluding loans subject to release whose contracts are delivered to the court. It then notes this as a source of Hillel’s prozbul ordinance, which is surprising, since once there is a midrashic justification Hillel should not have had to make the decree. In the second part of the midrash, Hillel is even credited with the midrashic reading (which is cited anonymously in line one), yet now, the term prozbul is not mentioned. In addition, the entire midrashic passage does not fit well with the Mishnah’s apparent presentation of (1) prozbul as something different from a lender delivering his contracts to the court, or (2) with Hillel depicted as the innovator of an independent legal mechanism known as the prozbul.
Sifre Devarim, another Tannaitic midrash to Deuteronomy, has a different though no less problematic, comment to this verse (Finkelstein edition, p. 271):
ואת אחיך תשמט ידך.
1. מכאן אמרו הלל התקין פרוזבול מפני תיקון העולם.
2. שראה את העם שנמנעו מלהלוות זה את זה ועברו על מה שכתוב בתורה.
3. עמד והתקין פרוזבול.
|“And that which you have of your brother’s release it.” And not one who delivers his contracts to the court.
1. From here they say that Hillel ordained prozbul for the good order of the world.
2. For he saw the people, that they refused to lend money to each other and they abrogated that which is written in the Torah,
3. he stood and ordained the prozbul.
The phrase “from here” (מכאן) implies that this midrash was Hillel’s source. Yet subsequently, it would seem that Sifre Devarim offers three different reasons for the establishment of the prozbul:
- the midrash;
- the good order of the world (without explaining what that is);
- the fact that people were not lending money to each other.10
Independent Traditions of Prozbul
I would like to suggest that there were at least two and possibly three independent sources regarding allowing debts to be collected beyond the seventh year. One source knows of the exception based on the delivery of contracts to the court, yet it did not know the term prozbul. This source may or may not have been connected to a midrashic reading of Deut. 15:3, and only in some versions, was the authority for this source identified as Hillel.
The second source concerns the establishment of the prozbul by Hillel. One version of this source attributed the establishment to the fact that there was a refusal to loan as the sabbatical year approached. Another version attributed it to the more general principle “for the good order of the world.”
These traditions were then mixed and matched in various combinations in the Tannaitic texts, including M. Shvi’it.11 Yet, this begs the question: Why would the rabbis choose to bring these different sources together in this way?
Mishnah as Midrash
Regarding m. Shvi’it, one way of accounting for its disinct, composite character is by conceiving of it as a kind of midrashic reading of the end of m. Gittin 4:3, which claimed that “Hillel ordained prozbul for the good order of the world (מפני תיקון עולם).” What, m. Shvi’it asks, is intended by “the good order of the world?” The answer is supplied by the mishnaic statement: “This is one of the things that Hillel the Elder established, for he saw the people, that they refused to lend to each other.…”
In other words, m. Gittin’s “good order of the world” is that the rich will not be mean spirited, the poor will have money to borrow and that God will “bless you” (Deut. 15:10).
A Narrative Generated by the Law
Notwithstanding our suggestion that m. Shvi’it’s foundation story is there to explain the meaning of m. Gittin’s phrase “the good order of the world,” what might be the source for this narrative?
I would like to suggest that the prozbul foundation story is generated by the juxtaposition of the biblical warning השמר לך (beware lest…) to the Mishnaic phrase מפני תיקון עולם. The latter phrase signals that a potential problem was fixed, while the former articulates the problem. By m. Shvi’it citing the biblical “narrative” about the sabbatical year approaching and people not lending while explaining מפני תיקון עולם, it is deliberately placing this biblical “narrative” into the rabbinic story.
We might even say that it is making explicit the implicit understanding of all law: that there is a narrative in which the law is embedded and a narrative which the law generates. As the legal theorist Robert Cover puts it:
The codes that relate our normative system to our social constructions of reality and to our visions of what the world might be are narrative. The very imposition of a normative force upon a state of affairs, real or imagined, is the act of creating narrative.12
Indeed, in the case of prozbul, the Mishnah’s narrative itself borrows almost verbatim from the biblical “narrative” of the debt release laws:
הִשָּׁמֶר לְךָ פֶּן-יִהְיֶה דָבָר עִם-לְבָבְךָ בְלִיַּעַל לֵאמֹר, קָרְבָה שְׁנַת-הַשֶּׁבַע שְׁנַת הַשְּׁמִטָּה, וְרָעָה עֵינְךָ בְּאָחִיךָ הָאֶבְיוֹן, וְלֹא תִתֵּן לוֹ; וְקָרָא עָלֶיךָ אֶל-יְהוָה, וְהָיָה בְךָ חֵטְא.
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. He will cry out to the Lord against you and you will incur guilt.
The “Beware, lest” (השמר לך) formula
When we consider the language of the Bible’s concern – “beware, lest” (השמר לך), we see how in a sense, this foundation story of the prozbul was essentially a narrative waiting to happen. The story told of Hillel is its fulfillment.
Specifically, when the Rabbis read the “beware lest” warning in Deuteronomy, as good midrashic readers, they knew that this warning signaled a narrative of abrogation because virtually all the “beware lest” warnings in the Bible are followed by stories of transgression.13 Knowing that there “had to” have been a transgression, and knowing of the association between Hillel and the prozbul ordinance, they placed the narrative in Hillel’s time, as he was credited with the prozbul innovation because of tikkun olam.
This reconstructed development of the Hillel prozbul traditions, while speculative, answers the two main questions that we started with: 1. What is the difference between prozbul and the one who submits his contracts to the court? 2. What is the reason for the sudden appearance of the foundation story about the prozbul?
The answer is that there really is no difference between prozbul and the one who submits his contracts to the court. Both were included in the Mishnah for different reasons. The “one who submits his contracts to the court” is there as part of a list of exceptions where one’s loans might not be subject to the seventh year debt remission.
The discussion of prozbul, on the other hand, is part of a midrashic rendering of the biblical warning against not lending money, which the exception clause of prozbul confronts. The editorial seam in m. Shvi’it exists because the two understandings are forced into one mishnaic space – a technical, legal loophole, alongside its ethical, midrashic rendering.
- The word prozbul seems to be Greek in origin. Jastrow’s reasonable suggestion is that it is a Greek phrase pros boule bouleuton, which might mean “a determination made in court” or “determination before the council.” By the time of the Bavli’s creation, its literal meaning was unclear, giving way to a midrashic reading of the term (b Gittin 37a). ↩
- For the growing body of literature on this term, its history and how it came to mean what it means in contemporary Jewish life, see Lawrence Fine, “Tikkun: A Lurianic Motif in Contemporary Jewish Thought,” in Ancient Israel to Modern Judaism, Jacob Neusner et al, eds. (Atlanta: Scholars, 1989), vol. 4, 35–53. ↩
- There are minor manuscript differences between the Palestinian manuscripts (Kaufman, Parma, and Low) and the Babylonian manuscripts, the manuscripts of mishnah which are embedded in the Bavli (Munich 95, Vatican 130, Vatican 140). However, none of these differences changes the meaning in a substantive manner. ↩
- This sugya is one of the very few sugyot in the Bavli that is based on an extended discussion of a majority of the mishnahs of a chapter for which there is no Bavli. This sugya is rhetorically structured as a commentary to m. Shvi’it 10, and it comments on all or part of 7 of the 10 mishnahs in that chapter. ↩
- MS Vat 130 does not have “He rose”. ↩
- There is a disagreement amongst the classical commentators about what this phrase means. The Hebrew מוסרני can be translated either as an actual physical handing over, or as giving of a deposition (מוסר מודעה). Whilst the Hebrew more easily bears the former meaning of actually handing over the loan deeds (a reading which is better supported by the manuscripts than by the printed edition), this reading is problematic with the Mishnaic legal context. If prosbul consists of actually handing over the loan deeds, how is it different then from the מוסר שטרותיו לבית דין/the one who hands his deeds to the court of the previous Mishnah? (M Shevi’it 10:2). See Meiri and Ran. ↩
- The printed edition has שכל which then reads as a separate clause supporting the idea that מוסר is a verbal deposition. The MSS (Arras 969; Munich 95; Vatican 130) have את כל or simply כל. This ties the second line with the first as we have translated it. ↩
- This conflict of interpretation continued into the Middle Ages with no consensus amongst the commentators. See Menahem Hameiri, Bet Habehirah, Massechet Gittin, 155-156, which lays out both sides of the debate. ↩
- p. 80. Midrash Tannaim, which also known as Mekhilta Deuteronomy probably dates to the third century CE. It was reconstructed from the Midrash Hagadol (a late medieval midrash anthology) by David Hoffman in 1910. A number of folios of the midrash were later discovered in the Cairo Genizah. ↩
- In the Mishnah, the last two reasons are cited in different places while the midrashic basis of prozbul is not cited at all. ↩
- M. Shvi’it 10:2 uses the exact same phrase “they do not remit” about the one who submits his contracts to the court as m Shvi’it 10:3 does about prozbul. In addition, m. Shvi’it 10:3 continues somewhat anomalously: “This is one of the things that Hillel ordained…”. M. Shvi’it 10:4 then recounts the story of Hillel’s fear of people not lending to each other. ↩
- “Nomos and Narrative,” in Narrative, Violence, and the Law: The Essays of Robert Cover, Edited by Martha Minow, Michael Ryan, and Austin Sarat (The University of Michigan Press, Ann Arbor, 1992): 102. ↩
- the biblical warning phrase: השמר לך (beware lest…), or its plural, appears ten times in legal contexts in the Bible. All but four are generalized warnings against straying after idols or the worship of the gods of the land that the Israelites are to conquer. Four have specific warnings:
- Exodus 34:12 warns against establishing treaties with inhabitants of the land;
- Deuteronomy 12:13 warns against sacrificing in any place other than the temple site designated by God;
- Deuteronomy 12:19 inveighs against abandoning the Levites;
- Deuteronomy 15:9, our verse, warns against not lending money during the seventh year.
All of these warnings were broken in later biblical stories. Israel famously worshipped idols, made treaties with the residents of the land, (Josh 9-10), sacrificed in places other than the Temple in Jerusalem, (I Kings 12), and abandoned the Levites (Malachi 2:8). It is only the shmittah year of debt remission that is not expressly abrogated in Torah. (II Chronicles 36:20 refers to the release of land and not release of debt which is the focus of the hishamer lecha warning. Thanks to Michael Carasik for reminding me of this verse). ↩