Re’eh 5780-2020

“Changing and Updating Jewish Law”
(updated and revised from parashat Re’eh 5762-2002)

by, Rabbi Ephraim Z. Buchwald

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

As you may know, the ancient Jewish calendar was organized on Sabbatical cycles of seven year periods. Every seventh year, the land must lay fallow, and farmers are prohibited from working the land. During this time, 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 שְׁמִטָּה —sh’mita year, farmers and agriculturalists are to restore their strength, and undergo “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 the practice of shmitat k’safim, in which every creditor is to forgive the debts owed to him by borrowers. 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 would say!

The law of forgiving debts is derived from a verse in Deuteronomy 15:1, which reads: מִקֵּץ שֶׁבַע שָׁנִים, תַּעֲשֶׂה שְׁמִטָּה ,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 L-rd, your G-d, will give you as an inheritance to possess it. If you only will harken to the voice of the L-rd your G-d, to observe and to perform the entire commandment that G-d commanded you today.

This beautiful promise to the Jewish people concludes with these memorable words, Deuteronomy 15:6: “For the L-rd, 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 often 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 the poor to obtain loans, since creditors knew that the Sabbatical year was at hand, and all debts would soon be uncollectable.

In order to address this situation, Hillel the Elder, the great religious leader who lived around the beginning of the Common Era, issued a proclamation called פְּרוֹזְבּוּל —Pruzbul, which, through a technical loophole, renders debts transferable to the court of Jewish law. Once transferred, these debts were not owned by the individuals, but by the court of law, and were now collectable at the end of the seventh year. The justification for this action said Hillel, was שֶׁלֹּא תִּנְעוֹל דֶּלֶת בִּפְנֵי לוֹוִין, 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 regarding the collecting of debts in the seventh year. Deuteronomy 15:3 reads: וַאֲשֶׁר יִהְיֶה לְךָ אֶת אָחִיךָ, תַּשְׁמֵט יָדֶךָ , And that which you have of your brother, your hand shall release. Our rabbis in the Sifre, 113, learn from this, יָדְךָ תַּשְׁמֵט, וְלֹא הַמּוֹסֵר שְׁטָרוֹתָיו לְבֵ”דִ, לְפִיכָךְ תִּיקֵן הִלֵּל פְּרוֹזְבּוּל מִפְּנֵי תִּיקוּן הָעוֹלָם, Your hand shall release–but not one who transfers his documents to the court of Jewish law. 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 entities.

What does this all mean? Philosophically, it means that the Torah, the Written Code of the Five Books of Moses, is a “utopian document.” In utopian circumstances, every person is expected to forgive the debt of their neighbor without hesitation. Nevertheless, Jewish law recognizes that society has a long way to go before it qualifies 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.

It’s critical to note, that were there no loophole in the letter of the law, nothing could be done to aid the poor people. However, because of the nuance 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 Passover. The Torah says (Exodus 12:19 and 13:7), that no leaven or chametz may be found in all your habitations. 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 nuance in the text, 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 text or loophole to permit driving on Shabbat. In fact, they found cogent textual support for the opposite conclusion. The Torah, in Leviticus 19:30, 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 textual wiggle-room whatsoever!

Why then do some laws have textual nuances and 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 more concentrated Jewish neighborhoods. It’s as if the Al-mighty, in His ultimate wisdom, realized that intensive Jewish communities are, in most instances, 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 in their practices and behavior.

And so, even where there are loopholes, Jews must aspire to forgive all debts in the seventh year, to clear out all chametz before Passover, and to live exalted, even though not-yet, utopian lives.

May you be blessed.