Pruzbul (2) Potential Problems

Question

Yechiel lives in a town where there are hardly any Torah-observant
Jews, apart from his father and two brothers. Can they form a Beis Din
in order for him to make a pruzbul? What should he do if he is
unable to find a Beis Din in order to make a pruzbul? He also owes
money to non-observant Jews. Payment is due before the end of sh’mittah.
Undoubtedly, these creditors will come to collect their money after the
end of sh’mittah, despite not having written a pruzbul. What
should he do?


Answer

The Shulchan Oruch (Choshen Mishpot
67:18) rules that a pruzbul can only be made in a Beis Din
of halachic experts, who are also well-versed in sh’mittah laws.
The inhabitants of the town must have accepted the authority of this Beis
Din
. The Remo (Ibid.) quotes an opinion that any Beis Din
will suffice for the purposes of writing a pruzbul. He adds that
since annullment of debts at the end of sh’mittah is nowadays
rabbinic, one can rely on this opinion. It has become accepted practice
that any three Jewish men who know about sh’mittah can form a Beis
Din
for these purposes (see Teshuvos ve’Hanhogos, Vol. 3, No.
448). However, there are some who are particular to make their pruzbul
in front of an established Beis Din, in accordance with the opinion
of the Shulchan Oruch. The three members of the Beis Din may
be relatives of the person making the pruzbul, but not related to
each other. One may also draw up a pruzbul at night (Minchas
Yitzchok
Vol. 10, No. 140). Yechiel will therefore have to find
another two qualified Jews to join his father or one of his brothers on
the Beis Din.

What happens if there is no Beis Din available?
Does the lender have to allow all his loans to become annulled? There is
another solution. He can make the following declaration in front of two
witnesses: I hereby hand over all my documents and any loans owing to me
to the Beis Din of (name of town). The witnesses thereupon write
out a dated document certifying that this person made the above
declaration, to which they append their signature. This will enable him to
collect his debts as an agent of this Beis Din after the end of sh’mittah
(Sefer HaSh’mittah, Part 1, 13:8).

What should one do if a non-sh’mittah observant
creditor comes to collect "his" money after the end of sh’mittah?
Surely one is causing him to commit a sin by collecting a halachically
cancelled debt, in violation of two prohibitions? Rav Moshe Sternbuch (Teshuvos
veHanhogos
, as above) deals with this subject at length. He is of the
opinion that one should not make the creditor aware of the prohibition
against collecting debts after the sh’mittah if he is not likely to
accept the validity of this law. As a result, any subsequent collection
would constitute an intentional violation. As long as he is unaware that
this is forbidden, such collection is only an unintentional violation of a
rabbinic prohibition. According to the Nesivos Hamishpot (234),
unintentional violation of a rabbinic prohibition does not constitute a
sin. He suggests that the observant borrower should declare that he is
giving the money to the lender/creditor even though he has no halachic
obligation to do so. He wishes to give the creditor a gift to the value of
the sum that he owed him at the end of the sh’mittah year. If he
fears that the creditor will not accept his declaration but insist that he
is actually taking repayment of the (halachically cancelled) loan, he may
make the declaration in front of two witnesses, when the creditor is not
present. Obviously, repaying the loan before the end of the sh’mittah
year would avoid all problems! Rav Shlomo Zalman Auerbach (Minchas
Shlomo
, Vol.3, 132:19) holds that all non-observant Jews wish to
collect their debts in a way which works halachically.