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Sacred legal loopholes
Rabbis were encouraged to announce the prosbul ‘with the greatest publicity’
On 18 Elul 1979, Rabbi Menachem Mendel Schneerson of Lubavitch (Ramash, 1902-1994) addressed his followers. In Lubavitch collective memory, 18 Elul is an auspicious day: the birth of the Besht (Ba’al Shem Tov) in 1698, the day Ahijah the Shilonite first appeared to the Besht in 1724, the day the Besht revealed himself to the world in 1734, the birth of Rabbi Shneur Zalman of Liadi (Rashaz) in 1745, and more.
It was less than two weeks before the onset of the 5740 sabbatical year. The following Hebrew year was to be a year when regular agriculture in the Holy Land would be forbidden, and when there was to be widespread debt relief. Ramash related to the sabbatical debt release, known in Hebrew as shemittat kesafim.
During the Second Temple period, Hillel the Elder enacted a legal workaround to avoid shemittat kesafim. The workaround, termed prosbul, was a virtual transfer of debts held by creditors to the court of law. The sabbatical remission applies only to debts owed to individuals, and not to debts owed to the court. Executing a prosbul therefore ensured that the bonds remain intact despite the biblical debt release. Creditors – acting as agents of the court – could then recover debts despite shemittat kesafim.
When was a prosbul to be executed? Following accepted rabbinic tradition, shemittat kesafim occurs at the end of the sabbatical year. Accordingly, the prosbul should be executed at the end of the year. So on the eve of the 5780 sabbatical year, most people were not talking about shemittat kesafim. Why then was Ramash discussing the topic?
There is an opinion among medieval rabbis that the prosbul should be executed before the sabbatical year. But Ramash was not simply adopting a minority position in Jewish law. He was following the ruling of his predecessor, Rabbi Shneur Zalman of Liadi, in his monumental code of Jewish law. Rashaz had acknowledged that the prosbul was not widely practiced, nevertheless he declared that “any God-fearing person should be stringent upon himself to execute a prosbul.” Regarding the prosbul’s timing, Rashaz stated: “And the time of the prosbul is ideally at the end of the sixth [year] before R[osh] Ha[shanah] of the seventh [year].”
Thus Ramash was encouraging Chabad Hassidim to follow the ruling of the founder of Chabad Hassidism and execute a prosbul before the start of the sabbatical year. This was not the first time Ramash had discussed the matter. Already in 1951 – less than a year after he had assumed the leadership of Lubavitch Hassidism – Ramash added a succinct note to a publication of his father-in-law’s teachings that was produced under his aegis: “Since the shemittah year is approaching, that is the year 5712 [1951-52], it is a religious ideal [mitzvah] to publicize the opinion of our Elder Master [Rashaz] in his code, and these are his holy words:...” In 1965 and in 1972, Ramash again advocated executing a pre-sabbatical prosbul – as per Rashaz’s ruling – and he continued to do so throughout his tenure.
But in 1979, Ramash went further than his previous statements, noting that Rashaz had advocated writing a prosbul at the end of the sixth year as ideal conduct. This was not just an expression of the ideal time; it was an expression of an ideal in general. That is, executing a prosbul was an ideal in itself.
Ramash therefore encouraged rabbis to form ad hoc courts for widespread prosbul execution. Moreover, rabbis were encouraged to announce the prosbul “with the greatest publicity” so that “all our brethren, the children of Israel,” will merit to execute a prosbul on the eve of the sabbatical year.
What about people who are confident that they have no debts owed to them such that they have no need for a prosbul? Or what about people who are owed money but are willing to release the debts? Presumably these people need not execute a prosbul. While such people may not have a financial need for a prosbul, Ramash saw religious value in executing the legal instrument.
First, the prosbul was a rabbinic enactment, and as such was to be favored. Paraphrasing a Talmudic adage, Ramash stated: “The words of the rabbis are more pleasant to me than the words of Torah.” The mere fact that Hillel had instituted the prosbul made its use an act with religious significance. Executing a prosbul broadcast acceptance of the legal authority of the rabbis.
Second, adopting a legal position held by Rashaz was an expression of following in his ways. Given that the 1979 talk was delivered at a gathering commemorating Rashaz’s birthday, this would have been a particularly meaningful statement in that context.
Ramash therefore suggested that people should make sure to have some debt owed to them, just so that they would be able to write a prosbul. Ramash was encouraging people who had no financial need for a prosbul to artificially create a loan so that they would be able to execute the legal document.
Ramash returned to the topic seven years later, in 1986, days after the beginning of the 5747 sabbatical year. On this occasion, he used a different argument to express the value of following Rashaz’s directive. Rashaz had written that “any God-fearing person should be stringent upon himself to execute a prosbul” – suggesting that this was an act that went beyond the requirements of Jewish law. Yet since this requirement was included in Rashaz’s code, its status – argued Ramash – had been upgraded to that of law. Moreover, Rashaz’s code had purportedly been written as an accessible law book for every person. As such, even a law directed to “any God-fearing person” must be addressing every Jew.
Thus even if there was no real financial need for a prosbul, there was spiritual valence to its execution because it reflected fidelity to rabbinic tradition and affiliation with the legacy of the founder of Chabad Hassidism. More broadly, using this legal loophole was an expression of continuity with a hallowed legal past.