[Avodah] Haarama

[Zev Sero]

Marty Bluke wrote:
> R' Zev Sero wrote that according to Tosafos pruzbul could work even if
> shemitta is even d'oraysa.
> 
> This is actually an interesting machlokes rishonim.
> 
> The gemara asks on Hillel
> "u'mi ika midi d'md'oraysa mshamet shviis v'hiskin Hillel d'lo m'shamta:
> 
> How could Hillel create the takana of pruzbul when the torah says that
> the loan is canceled?
> The gemara answers:
> "amar Abaye b'shviis bizman hazeh d'rabbanan"
> 
> Abaye answers that pruzbul only works if shemitta is d'rabbanan.

Not according to Tosfos.  According to Tosfos the gemara's question
is not how Hillel had the power to do this, but how he dared to.
The pruzbul works on a ha'arama, which prevents the Torah's purpose
from being fulfilled.  The Torah says the loan is cancelled, how dare
Hillel enable and encourage people to evade that?  It should be like
the first type of ha'arama that RJR listed, like bringing in your
grain through the roof, and every BD should refuse to have any part
in it.  To which Abaye answers that nowadays Shmitah is derabbanan,
and so Hillel had the right to evade it.  So it's not that pruzbul
only *works* if shmitah is derabbanan, it's that pruzbul is only
*ethical* if shmitah is derabbanan.

According to this view, the efficacy of the pruzbul doesn't depend on
hefker BD (in other words Tosfos learns Rava's answer like the Rambam,
that he's explaining how the rabbanan could institute shmitat kesafim
nowadays, not how the pruzbul works in the first place).


-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas