Rabbi David Rosenn President & CEO of the Hebrew Free Loan Society in NYC
Debts are obligations, and Jewish culture is built around obligations. Release can feel sweet, but it is a blunt instrument, wiping away good debts with the bad. Of course, in some cases, it makes sense to release people from obligations; for example, if those obligations are simply impossible to fulfill or if they were imposed unfairly or under duress. But regular interest-free loans made to help someone through a time of need — the kind of loans described in the Torah — are usually not that type, and shmitat k’safim, the outright cancellation of debts, weakens the ties of mutuality and obligation that borrowing creates.
Perhaps that is why Hillel felt emboldened to devise a structure that explicitly skirts a mitzvah in order to keep debts in place during a sabbatical year. He saw that debt cancellation across-the-board posed a threat to something valuable for the deeper structure of society: our ability to mutually obligate ourselves to one another. After all, what is society but a set of mutual obligations, an echo of even larger covenants, which we should not easily release?
Another stints on doing the right thing and incurs a loss.
Our sages in Sheviit 10,9 have said that when someone (a borrower) repays the lender what he owes him even though the Shemiitah year has elapsed, the Rabbis will relate very positively to such a person. On the other hand, if the borrower does not repay his debts even though he is legally in the clear, he risks that the lender will shame him by spreading the word that this borrower took advantage of the good nature of the lender and simply ate up his money.
There is a halachic provision whereby the borrower makes a declaration (entirely voluntarily) prior to receiving a loan that he waives his right not to repay the loan if for some reason he is unable to repay it before the Shemittah year ends. We have a general rule that all mutually agreed conditions involving money matters can override what the Torah wrote. Moreover, the lender is allowed to demand repayment during any time of the Shemittah year provided the year has not come to a close. This is why the Torah writes מקץ, “at the end.”
If someone who is owed money which should have been repaid prior to the Shemittah year hands over the I.O.U he is holding to a court of law asking the court to act as his collector, he cannot subsequently release the debtor from his debt seeing that the debtor is already considered as having been harassed, נגוש, so that the Torah’s warning not to harass the borrower can no longer be fulfilled. In such a situation the lender foregoes the right to ask for repayment (personally) as soon as the Shemittah year ends. (unless he had made an agreement with the borrower concerning this eventuality). Orphans who are of age (by the end of the Shemittah) and who are in possession of I.O.U.’s left to them by their father do not need to prove that the borrower had waived his right of non repayment of the debt at the end of the Shemittah year (Choshen Mishpat 67,29). These orphans are considered as if they actually had the requisite documents in their possession (Shevuot 45).
The laws pertaining to the release of overdue debts in the Shemittah year apply world-wide, as opposed to the laws pertaining to the earth and orchards, etc., which apply only in the land of Israel. The Rabbis decreed this in order that the whole concept of the Shemittah legislation not be forgotten during the long years of exile of the Jewish people.
The reason that the sheviit, seventh year, is capable of overriding certain oaths, is because the Torah writes here וזה דבר השמטה, using the word דבר, word, i.e. something uttered by the mouth. If someone swore to his creditor that he would pay him back the loan even though the Shemittah year would occur prior to the date of his repayment, even if he confirmed it in writing, etc., he need not keep his oath (Choshen Mishpat 67,6).
There is a conceptual linkage between the shemittah of lands, etc., and shemitat kesafim (monetary debts) seeing the Torah writes the word תשמטנה; in Exodus 23,11 the Torah had already spoken of releasing land, i.e. agricultural harvests, from the claims of ownership. It is fairly clear that in our portion another kind of shemittah, i.e. monetary debts, are referred to. Seeing that the applicability of this rule in the Diaspora is only rabbinic the Rabbis permitted the פרוזבול, the writing over of the debt to the Bet Hadin, court of law, as otherwise there would not be any people ready to extend interest-free loans which would prove uncollectable also. If someone borrows a sum of money for ten years the lender does not need to forgive the loan in the first shemittah year seeing it had not become due yet; you cannot release something to which you did not have a claim yet. If the loan is unpaid when the second shemittah year comes around, its laws apply to that loan.