“Changing and Updating Jewish Law”

by Rabbi Ephraim Z. Buchwald

In this coming week’s parasha, parashat Re’eh, we encounter a fascinating law known in rabbinic literature as Shmitat k’safim, the practice of forgiving debts in the seventh year of the Sabbatical cycle.

As you may know, the Jewish calendar is organized on Sabbatical cycles of seven year periods. Every seventh year, the land must lay fallow and farmers are prohibited from working the land. Instead, landowners are expected to gather enough food for their personal daily needs, while the poor and strangers may enter the unworked fields to collect their meals as well. During the sh’mita year, farmers and agriculturalists are to restore their strength and undergo a would-be “rehabilitation” through the study of Torah. By laying fallow, the land as well regenerates itself.

Another lesser-known statute related to the Sabbatical cycle is shmitat k’safim, in which every creditor is to forgive the debt owed to him by others. Consequently, if a Jew owed another Jew money and had not paid back the debt by the conclusion of the seventh year, the creditor was expected to forgive that debt. Quite a significant sacrifice, I might add.

The law of forgiving debts is derived from a verse in Deuteronomy (15:1) which reads: “Mee’kaytz sheh’vah shah’nim, ta’ah’seh shmita,” At the end of the seven years, you shall institute a sh’mita–a “release.” The Torah continues: This is the matter of the release: every creditor shall release that which he has lent to his neighbor. He shall not pressure his neighbor or his brother, for he has proclaimed a release for G-d. And that which you have of your brother, your hand shall release. The Torah continues with a promise to the Jewish people, that if they abide by G-d’s instructions, there will be no poverty among you. G-d will surely bless you in the land that the Lord, your G-d, will give you as an inheritance to posses it. If you only will hearken to the voice of the Lord your G-d, to observe and to perform the entire commandment that G-d commanded you today. The section concludes with a beautiful promise to the Jewish people (verse 6): “For the Lord, your G-d, has blessed you, as He has told you. You will lend to many nations, but you will not borrow, and you shall rule over many nations and they shall not rule over you.”

Forgiving debts in the seventh year is surely one of the most exalted laws in Judaism, one that underscores the extraordinary charitability practiced by the ancient Israelites. However, the Talmud reports that this generous law backfired. Instead of helping the poor, it virtually closed the doors to the poor people. In fact, as the seventh year of the Sabbatical cycle drew near, it was almost impossible for a poor person to obtain a loan, since creditors knew that the Sabbatical year was at hand, and all debts would be uncollectable.

In order to address this situation, Hillel the Elder, the great religious leader of the first century, issued a proclamation called Pruzbul, which, through a technical loophole, renders debts transferable to the court of Jewish law. Once transferred, these debts were now collectable at the end of the seventh year by the courts of Jewish law. The justification for this action, said Hillel, was “Sheh’lo tin’ol delet bif’nay loh’vim,” that the doors should not be closed before the poor people who wish to borrow money.

Clearly, the effect of Hillel’s Pruzbul was to cancel a law of the Torah. How could that be?

Upon examining the details of the laws of shmitat k’safim, of forgiving the debts, we may see how Jewish law deftly operates, and perhaps catch a glimpse of the principles that guide the evolution and modification of Jewish law.

There is no question that in the utopian view of the Torah, at the conclusion of the seventh Sabbatical year, every Jew is expected to cancel the debts of the poor people. Unfortunately, not every Jew is so giving or utopian. Consequently, Hillel issued the Pruzbul, which was based on a loophole in the text of Torah law regarding the collecting of debts in the seventh year. Deuteronomy 15:3 reads: “V’asher yee’hee’yeh l’chah et ah’chee’chah, tah’sh’mayt yah’deh’chah,” And that which you have of your brother, your hand shall release. Our rabbis in the Sifrei learn from this, “Yad’chah tash’mayt, v’lo ha’mo’ser sh’tah’rav l’vayt din,” Your hand shall release–but not one who transfers his documents to the court of Jewish law. Consequently, says the Sifrei, “L’fee’chach, tee’kayn Hillel Pruzbul, mip’nay tikun ha’olam,” therefore, Hillel established the Pruzbul in order to “perfect the world.” In other words, the fact that the verse specifically says, “Your hand shall forgive,” implies that this particular phraseology intends to allow future generations, when necessary, to transfer debts to courts of law so they may be collected even during the seventh year. While it appears to be merely a means of avoiding a truly noble practice, this interpretation is not unlike the “elastic clause” of the U.S. Constitution, limiting individual liability by the establishment of corporate structures.

What does this all mean? Philosophically, it means that the Torah, the Five Books of Moses, the so-called Written Code of the Torah, is intended to serve as a “utopian document.” In utopian circumstances, every person is expected to forgive the debt of their neighbor without hesitation. Nevertheless, Jewish law recognizes that most people have a long way to go before they qualify as utopian. Consequently, Jews were given what is known as the Oral Code, the Talmud, which explains and develops the nuances of the written text. So, while Al-mighty G-d aspires for all Jewish people to be utopian, He also provides for those who are “not yet” utopian. This loophole makes it possible for poor people to obtain loans in the seventh year, which, of course, accords with the spirit of the original law. Were there no loophole in the letter of the law, nothing could be done to aid the poor people. However, because of the loophole in the letter of the law, Hillel was able to derive an interpretation which conformed to the spirit of the law, and worked to benefit the poor people.

A similar nuance is found in the practice of the sale of chametz on Pesach. The Torah says that no leaven or chametz may be found in all your habitations (Exodus 12:19 & 13:7). And yet, through an exegetical loophole, we learn that chametz is allowed to remain in the possession of gentiles and may even be found in the Temple. While it’s true that the Torah aspires that eventually all Jews would clear away all chametz, the Torah realizes that until we reach that utopian state, chametz may be sold to a gentile or given to the Temple. Were there no such loophole, absolutely nothing could be done.

The issue of driving a car on Shabbat provides a fascinating insight into the question of changing and updating Jewish law. Although Orthodox rabbis acknowledge that many people violate the laws of Shabbat by driving anyway, they could find no loophole to permit driving on Shabbat. In fact, they found cogent textual proof to the contrary (Leviticus 19:30). The Torah clearly states that even building the Holy temple in Jerusalem is forbidden on Shabbat. So how can one justify driving to a shul in Syosset on Shabbat? There simply is no loophole, no wiggle-room whatsoever!

Why then do some laws have loopholes while others do not? Apparently, there are, at times, benefits to the lack of loopholes. So, for instance, as a result of the decision that driving on Shabbat was prohibited, Orthodox and Traditional Jews were forced to reside within walking distance of a synagogue, limiting them to live in the more concentrated Jewish neighborhoods. It’s as if the Al-mighty, in His ultimate wisdom, realized that intensive Jewish neighborhoods are crucial for those who wish to maintain a viable commitment to Jewish life.

Clearly, the Al-mighty seems to know what He is doing. And yet, despite valid legal loopholes, it is critical that we understand that Jews not become comfortable with these compromises, but instead continue to aspire to become utopian people. And so, even where there are loopholes, we Jews must aspire to forgive all debts in the seventh year, to clear out all chametz before Pesach, and to live exalted, even though not-yet, utopian lives.

May you be blessed.