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Rabbi Alfred S. Cohen

Practical Implementation

Poskim discuss whether the pruzbul must be written and executed in front of beth din or whether an individual can simply fill out a pruzbul and sign it in the presence of two witnesses. The question arises due to an ambiguity in the Yerushalmi (the Palestinian Talmud), commenting on the Mishnah which teaches about the pruzbul: "and even if they are in Rome." Does this mean that the lender doesn't have to be physically in the presence of the judges -- they could be in Rome, while he is here6 -- or does the phrase indicate that even if the debts are in Rome, the lender must execute the pruzbul before the judges?7

The Shulchan Aruch Harav 8 writes that the lender should write a pruzbul and then have two witnesses sign to the effect that he transferred his debts to a beth din. If the judges of the beth din are the ones who sign, so much the better. Rav Ovadia Yosef, in Yechave Da'at,9 rules that it is sufficient to sign it in the presence of witnesses, without a beth din. Ramo is even more lenient, declaring that if the lender merely declares orally that such is his intention, he does not have to execute a pruzbul in writing.10

By somewhat circuitous logic, the Aruch Hashulchan concludes that there is no need for a pruzbul at all: Since nowadays, the beth din no longer has the power to collect debts, the pruzbul is actually meaningless. Therefore, rather than have the lender violate either the biblical prohibition of pressuring the borrower to pay back (before shemita) or the biblical command to be sure to lend to the poor, we rule that the rabbinic law cancelling debts is void. Thus, there is no need for a pruzbul.11

A further question raised by the Gemara in Gittin 36a is whether the takkana (regulation) was instituted by Hillel for all times or only for the generation in which he lived, which was wracked by great political and financial woes. Determining Hillel's intent is crucial. If he ruled only for his own generation but thereafter people continued the practice of their own volition, then any later beth din may alter or suspend his takkana as it sees fit. However, if his regulation was instituted as a permanent one, it would reqilire a beth din which is "greater in number and in wisdom" than the one which ordained the rule in the first place, to cancel it. It goes without saying that no beth din in later generations is greater than the one over which Hillel the Elder presided. Consequently, the pruzbul must be considered a permanent regulation, even if the reason for instituting the regulation in the first place no longer applies. 12

The Gemara concludes that Hillel instituted the pruzbul for all future generations, but that it is valid only if executed by a Jewish court of experts, all of whom are well versed in the laws of shemita and who have been appointed as judges by the people of their city.13 The Meiri14 opines that since we no longer have judges of this caliber, we should not rely on a pruzbul. Ramo, however, rules that any beth din is qualified to write a pruzbul, because it is a rabbinic law.15

The Rif and the Tur have also adopted this position. 16 But the Shach17 challenges the Ramo, citing the Mabit, who wrote:

And in the last Sabbatical Year, we [the court] annulled a number of pruzbuls which were not made by an "illustrious" [chashuv] beth din of the city and others [pruzbuls] were written in their stead, by an "illustrious" beth din.

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