What happens when a law designed to help poor people ends up hurting them? What happens when a law designed to give the land a bit of rest has the potential to destroy entire agricultural settlements? Do you follow the letter of the original law, trusting that it will all work out, or do you enact new laws to fix the old laws and maintain their spirit?
These are the kinds of questions that arose centuries ago in connection to shmitah, the sabbatical year, which is taking place during this Jewish year of 5768. During shmitah, fields are left fallow, slaves are freed, and debts are forgiven. In this essay, delve into how the Bible and the Rabbis tried to preempt or mitigate problems with letting the land lie fallow and forgiving loans.
The Bible itself anticipates that the Jewish people will lack faith that they will have enough to eat in the seventh and eight years if they neither harvest nor plant in the seventh year, as the shmitah laws ordain:
“And should you ask, ‘What are we to eat in the seventh year, if we may neither sow nor gather in our crops?’ I will ordain my blessing for you in the sixth year, so that it shall yield a crop sufficient for three years. When you sow in the eighth year, you will still be eating old grain of that crop; you will be eating the old until the ninth year, until its crops come in.”
The Bible promises that the sixth year’s crops will produce a triple yield: enough to sustain an agricultural economy for the sixth, seventh, and eight years of the cycle.
The Bible also anticipates a potential societal problem that would have severe ramifications for the poor: people would refuse to loan money to poor people as shmitah approaches, due to the law that requires loans to be forgiven during shmitah.The solution? Once again, God promises to reward, with blessings, those who follow this law.
Beware lest you harbor the base thought, “The seventh year, the year of remission, is approaching,” so that you are mean to your needy kinsman and give him nothing. He will cry out to the Lord against you, and you will incur guilt. Give to him readily and have no regrets when you do so, for in return the Lord your God will bless you in all your efforts and in all your undertakings.
The Rabbis saw that despite the incentive of Divine blessing, the problems anticipated by the Torah had, in fact, arisen. Poor people were being denied essential loans in the years leading up to the shmitah, and the agricultural burden became increasingly difficult as small-scale local economies were transformed first by the Roman occupation of the Land of Israel and later by the development of a modern economy in Ottoman-era Land of Israel. In response, they developed two other solutions to these fears: prozbul, instituted by Hillel the Elder circa 30 BCE to 10 CE (see page 8 for definition), and heter mechirah, first introduced by several rabbis in the Ottoman-controlled Land of Israel in the 1888-1889 shmitah year (see page 17 for definition).The discourse that surrounds these rabbinic enactments provides a fascinating view of the competing forces within Jewish law.
In the narrative below, learn about prozbul and heter mechirah as ways of thinking about the interplay between the letter and the spirit of the law, and between the biblical injunctions and how later generations contend with them. Use the development of prozbul and heter mechirah as a lens through which to view both the process and the objectives of halakhah, or Jewish law.
In the Midrash Leviticus Rabbah, the Rabbis acknowledge how difficult it is to keep all of the laws of the shmitah year, and suggest that he who follows these laws is stronger than anyone else, because he sees his hard work destroyed day after day for an entire year, and still follows the law:
“The mighty in strength that fulfill His word” (Psalms 103:20). To whom does the Scripture refer? Rabbi Isaac said,” To those who are willing to observe the shmitah year. In the way of the world, a man may be willing to observe a commandment for a day, a week, a month, but is he likely to continue to do so through the remaining days of the year? But throughout that year this mighty man sees his field declared ownerless, his fences broken down, and his produce consumed by others, yet he continues to give up his produce without saying a word. Can you conceive a person mightier than such as he?”
—Leviticus Rabbah, 1:1
One solution to the problem of loan forgiveness is for people to voluntarily repay their debts, despite their cancellation. This is the advice given by Abbaye to Rav Abba in the following Talmudic passage:
“Abba bar Marta, who owed Rabbah money, brought it to Rabbah’s house in the seventh year. Rabbah said: ‘I cancel the debt.’ So Abba bar Marta took his money and went away. Subsequently, Abbaye, seeing that Rabbah looked sad, asked him,’ So, why are you sad?’ Rabbah told him what had happened. So Abbaye went to Abba bar Marta and asked him, ‘Did you offer money to Rabbah?’ Rav Abba replied, ‘Yes.’Abbaye: ‘And what did he say to you?’ Rav Abba: ‘I cancel the debt.’Abbaye: ‘And did you say to him, “Nevertheless, take it?” Rav Abba: ‘No.’Abbaye said to him,’ If you had said to him, “Nevertheless, take it, he would have taken it. At any rate, go now, and offer it to him.” Rav Abba went and offered it to Rabbah, saying, “Nevertheless, take it.” Rabbah took it from him and said,’ Until now, this disciple of the wise did not know what to do!’”
—Babylonian Talmud, Tractate Gittin, 37b
Even though Rav Abba was the disciple of the wise, he did not understand that if one has the money, one should voluntarily repay even a cancelled loan. Abbaye understood this delicate social and financial balancing act, and gave good counsel to Rav Abba.
This voluntary repayment of loans was not, however, ultimately enough. To understand why it was necessary for loans not to be forgiven during shmitah, it is helpful to read Deuteronomy 23:20: “You shall not deduct interest from loans to your countrymen, whether in money or food or anything else that can be deducted as interest.”
Because no interest was allowed, loans existed mainly as a short-term way to aid the poor between the periods of planting and harvesting crops. Most loans were given to poor people the lenders personally knew.
The combination of interest-free loans and loan forgiveness ended up hurting the very people it was designed to help; the law no longer fulfilled its stated purpose because the wealthy stopped lending their money out. In doing so, they violated an explicit prohibition in the Torah:
“Beware lest you harbor the base thought,’ The seventh year, the year of remission, is approaching,’ so that you are mean to your needy kinsman and give him nothing…”
Hillel the Elder therefore opted for a change to the legal system itself, called a prozbul, rather than relying on voluntary repayment of cancelled loans.
The Mishnah in Tractate Shevi’it (10:3) reports: “When [Hillel the Elder] saw that people refrained from giving loans one to another and transgressed what is written in the Law,’ Beware lest you harbor the base thought…’ Hillel ordained the prozbul.”
What is a prozbul? The prozbul is a method by which people transfer their personal loans to the beit din, or Jewish legal court. The beit din, because of special powers granted to it to redistribute property, is then able to authorize people to collect their loans even during or after the shmitah, when loans are normally abrogated. This “legal fiction” provided a way around loan forgiveness and restored the Torah’s goal of helping, rather than hurting, the poor.
While this may seem like a loophole designed to help wealthy people get their loans repaid, it was really a way to encourage people to continue offering interest-free loans to the poor. Thus, a Mishnah in Tractate Gittin (5:3) adds that the prozbul was established by Hillel the Elder “to repair the world.” In Hebrew, this is called tikkun olam.There are only a few instances of older laws being superseded by later laws in order to achieve tikkun olam.This is a phrase that speaks to the highest level of ethical and moral considerations.
In addition to changes made to find ways around the shmitah loan forgiveness law, changes were made, throughout history, that affected the law about letting fields lie fallow so that the land could rest during the seventh year.
Rabbi Judah the Prince, the editor of the Mishnah, began this process by limiting areas of the Land of Israel in which agricultural laws, including shmitah and tithing, had to be observed. The Jerusalem Talmud (D’mai 2:1) reports:
“Rabbi [Judah the Prince] permitted Beit She’an; Rabbi permitted Caesarea; Rabbi permitted Beit Guvrin; Rabbi permitted Kfar Zemah.…”
Those around him were uncomfortable with his permitting what they felt that the Torah prohibited. In response, Rabbi Judah the Prince shared a parable about a verse from II Kings:
“Rabbi, thereupon, expounded to them the following verse: ‘[Hezekiah] also broke into pieces the bronze serpent that Moses had made, for until that time the Israelites had been offering sacrifices to it.’ Now, is it at all likely that Asa did not destroy it? Or that Jehoshaphat did not destroy it? Surely Asa and Jehoshaphat destroyed every form of idolatry in the world! It must therefore be that his ancestors left something undone in order that [Hezekiah] might distinguish himself. So, too, in my case, my ancestors left something undone for me to distinguish myself.”
—Babylonian Talmud, Tractate Hulin 6b-7a
Still, how was Rabbi Judah the Prince able to say that Beit Shean was not part of the Land of Israel, in order that it be excluded from the agricultural laws of shmitah and tithing? The Babylonian Talmud (Tractate Hulin 7a) continues:
“To this, Judah, son of Rabbi Simeon the son of Pazzi, demurred: Is there anyone who holds the view that Beit Shean was not part of the Land of Israel? Is it not written: ‘And Manasseh did not drive out the inhabitants of Beit Shean and its towns, nor of Taanach and its towns?’ [Judges 1:27] [When he raised his objection] there must have escaped his attention the statement of Rabbi Simeon son of Eliakim who reported that Rabbi Eleazar son of Pedath in the name of Rabbi Eleazar son of Shammu’a [said as follows]: Many cities that were conquered by the Israelites who came up from Egypt were not reconquered by those who came up from Babylon…. They did not annex these cities in order that the poor might have sustenance from them during the shmitah year.”
This was not the only thing that Rabbi Judah the Prince did to ease the burden of the shmitah laws on the poor. The Jerusalem Talmud (Taanit 3:1) reports that a man who was suspected of breaking the shmitah commandment was brought before Rabbi Judah. He said to them: “What should this poor man do? He works [his land] in order to keep himself alive,” thus suggesting tacit approval, or at least acceptance, of the man’s decision to ignore the shmitah laws.
Some later commentaries, as well as the Talmud in other places, posit that the shmitah laws were no longer biblically ordained during this period, and that they were only rabbinic in nature. Thus, the Rabbis had the ability to modify them to help the poor.
Under another circumstance, Rabbi Yannai actively commanded farmers to sow the land during the shmitah year. This was during a time when the Land of Israel was under Roman occupation, and annual taxes were payable at harvest time. If there was no harvest, the taxes could not be paid and people’s lives would be endangered.
—Babylonian Talmud, Tractate Sanhedrin 26a
Josephus tells us that the Israelites were exempt from paying taxes only during the shmitah year during the days of Caesar (Josephus, Ant. XIV, 10, 5-6). This exemption was abrogated in the year 261 CE, and the Jews had to start paying taxes every year, whether it was a shmitah year or not.
—Heinrich Graetz, History of the Jews, vol. 4, and M. Auerbach, Jahrbuch der Judisch-Literarischen Gesselschaft 5 (1907)
Between 70 CE and 1878 CE, Jews were not sowing and reaping in the Land of Israel at all. Although there were Jews living in the Land of Israel continuously during that period, they bought produce from the local Arabs. The first modern agricultural community in Israel, Petach Tikvah, was established in 1878, but it had failed by 1882, the next shmitah year.
The first time there were successful agricultural communities in the Land of Israel during a shmitah year was 1889.These included Rishon L’Zion, Rosh Pinah, Zichron Yaakov, and a reestablished Petach Tikvah.The farmers were afraid that if they stopped working the land for a year, their communities would fail. The financier who backed these communities, Baron Rothschild, threatened to withdraw economic support if the farmers let the land lie fallow for the shmitah year, and suggested they get loans from Jerusalem to stay afloat. In desperation, they wrote to Rabbi Yitzhak Elchanan Spektor, the Chief Rabbi of Kovno, who was a member of the early Zionist organization, Hovevei Tzion, that had established the town of Rishon L’Zion.
Rabbi Spektor permitted heter mechirah, literally “the permission of selling,” by which the land that the young Jewish farming communities worked was temporarily sold to non-Jews for the shmitah year. Since the laws of shmitah only applied to land in Israel that was owned by Jews, the Jewish farmers could work this land. This controversial legal loophole was opposed by the rabbis in Jerusalem and by others. However, heter mechirah was later reaffirmed as permissible by Rabbi Abraham Isaac Kook, the Chief Rabbi in the British Mandate of Palestine.
Today, there is still much controversy over the acceptability of relying on heter mechirah in Israel. Some let their fields lie fallow and just take what grows naturally from the previous year’s planting. Others rely on newer innovations of recent decades, such as hydroponic growing, permitted because the shmitah laws only apply to produce that is rooted in the land, not the water. On a similar principle, some farmers grow produce in beds that are raised above the ground during the shmitah year.
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“The Shmitah (sabbatical) year frees the land from total human ownership. The yield of the land in that year, whatever grows without human effort, is ownerless and is available for all, including the animals of the earth. The philosophy of the interrelatedness of all life within itself and with its Creator is the seed for vital ecological and socio-ethical insights, responsibility, and promise.” —Dr. Eliezer Berkovits, Not in Heaven: The Nature and Function of Halacha (New York: Ktav, 1983)