[Avodah] How does Prozbul work?
Akiva Miller via Avodah
avodah at lists.aishdas.org
Mon Sep 7 20:16:09 PDT 2015
R' Joel Rich wrote:
> Listen hear for discussion on point
> Rav Asher Weiss - Prozbul - Concept and Halachos 5775
Thank you very much for showing me this. I listened to it a few times, and
it seems that he gives his conclusions right at the beginning: (00:42 to
01:05) "The takana of Pruzbul is that there is no need to physically give
over your notes to Beis Din and there is no need Beis Din should be the
ones to collect your money. Hillel was metaken: it is enough if you
declare, either orally or in writing, Mosrani lachem..."
(02:00-02:24) "The takana of Hillel was: It is enough if you write 'Mosrani
lachem ploni v'ploni'. It is considered AS IF you transferred your notes to
Beis Din, and when you collect the money, you would be considered AS IF you
would be shliach of Beis Din even though it's not really the real thing in
practicality. But that was the takana of Pruzbul."
But how does it work?
He clearly says (at 8:40 to 9:23) that the functions of a Beis Din do not
include acting as a collection agency. There ARE (9:49 to 10:30) are very
limited circumstances where Beis Din does have that function, such as
collecting for yesomim, because that *is* one of the roles of the Beis Din,
as "avi yesomim". One the other hand, (10:30 to 10:52) yesomim do not need
to make a pruzbul at all, because Beis Din is *automatically* the Avi
Yesomim, and their loans will not be cancelled by shmitta.
So he suggests (12:19 to 12:40) that although it is not Beis Din's
practice to accept the responsibility of collecting loans except for
unusual cases, perhaps the difficulties posed by Shmitta put other loans in
this category, and so if someone would be moser his loans to Beis Din, then
Shmitta will not cancel them.
But exactly why are such loans exempt? He explains (14:20 to 14:40), "You
have to be m'shamet loans, but the moment you gave your notes, your loans
over to Beis Din, it is k'gavui dami - it is as if those monies were
already collected." He then compares this situation to the case where the
lender has collateral for the loan, and that too is "already collected" and
exempt from Shmitas Kesafim.
It seems to me that this is how Rav Weiss understands the Pruzbul: The loan
was and remains property of the lender, but Beis Din accepts the
responsibility to go to the borrower to demand payment. From that point, it
is considered as "already collected". Since it is already collected, not
only is he allowed to request the money after Rosh Hashana, but there's no
need to even state "M'shamet Ani". There is no need for any kinyan, because
the loan remains property of the lender, and the role of Beis Din is simply
to accept responsibility for collecting the loan; this occurs automatically
at the inception of the loan where the lender is an orphan, and it also
occurs automatically at the execution of a Pruzbul per Ezra's takana.
ON THE OTHER HAND, over Shabbos a friend lent me his copy of Sefer Dinei
Shviis Hashalem, published by Keren Hatarbut Degel Yerushalayim, which
contains a photo of a pruzbul on the stationery of Rav Shlomo Zalman
Auerbach and (apparently) in his handwriting, dated 29 Elul 5754. It
contains a very interesting clause. Other pruzbuls avoid details, and
simply say something like "I am moser my loans to beis din", but this one
adds some very significant points. Here is the full pruzbul, as best as I
can render it:
"[B'mosav tlasa bei dina k'chada havinu] We were three dayanim sitting
together, [uva l'faneinu...] and R' Aharon Dovid Goldberg came [v'amar
lanu] and said to us: [Hen shana zu hee shnas hashviis] This year is the
seventh year, [v'yesh li chovos b'shtar uv'al peh] and I have loans - both
in writing and orally - [al ayzeh anashim] against certain people.
[V'hareni moser lachem pruzbul] I am now moser a pruzbul to you, [viyhavis
l'chon b'matana] and give it to you as a gift [b'kinyan dalet' amos karka]
with a kinyan of four amos of land, [me'arah d'ees li] from the ground that
is mine. [V'al gabayhon] And through that, [arshees yas'chon] I give you
permission [limigbah kol chovos] to collect all my loans, [d'ees lee al
inshee] which I have against people. [Mayatah t'havoon li daiyna]
Henceforth you will be my dayanim, [v'sagbuhu uskabluhu li] and you will
collect and accept payment for me. [V'im lo tagbuhu atem] And if you do not
collect it yourselves, [mayata kayvan shemasarti lachem pruzbul zeh] then
since I was moser this pruzbul to you, [ani goveh kol chov] so I can
collect any loan [sheyesh li ad hayom etzel kol adam] which I have up to
today against anyone, [kol zman she'ertzeh] any time I want.
[next paragraph] - "[Anachnu beis din] We the court [shamanu dvarav] heard
his words, [veefinu kocho] and affirm its validity, [shelo t'shamet lay]
that he will not have a cancellation, [v'yigbeh kol chovosav] and he can
collect all his loans, [al ydei pruzbul zeh] via this pruzbul, [k'takanas
Hillel v'Chazal] in accordance with the takana of Hillel and Chazal.
[next paragraph] - "[Banu al hechasum] We have signed below [yom kaf"tes
l'chodesh Elul, shnas heh-tav-shin-nun"dalet] this day, 29th of Elul 5754
[poh Ir Hakodesh Yerushalayim] here, the holy city of Yerushalayim. Shlomo
Zalman Auerbach [I cannot read the other two signatures]"
(end of pruzbul)
I don't understand the purpose of the four amos of land. (Yes, I'm quite
aware of the requirement in halacha, I just don't understand why that
requirement was included. That's a topic for another thread.) And I quite
likely made some errors in the transliteration and the translation. But I
think that I understood it well enough to state with confidence that it
seems that RSZA does indeed subscribe to the "collection agency" model,
which Rav Asher Weiss had so clearly rejected.
RSZA explicitly uses the word "kinyan". One could argue that the "matanah"
which the lender is giving to the beis din is merely the pruzbul and not
the loans. One could also point out that after the kinyan has occurred, the
lender continues to refer to the loans (which beis din would collect) as
"MY loans", suggesting that they are still owned by the lender and not the
beis din. But if that is so, then what does it mean to make a kinyan on the
*pruzbul*? This pruzbul is merely a record of the court proceedings, and it
seems very likely to me that the intent is for the court to acquire the
loans themselves, in very much the same way that a modern collection agency
If anyone disagrees, and feels that RSZA does *not* subscribe to the
"collection agency" model, please explain how you think this pruzbul works.
And if anyone does agree with me, then I wonder if any other poskim hold
that way, because every explanation of pruzbul that I've seen describes the
document itself, and no one ever mentions any requirement of kinyan.
(now at AkivaGMiller at gmail)
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