Q&A: Question Regarding the Sabbatical Cancellation of Debts
Question Regarding the Sabbatical Cancellation of Debts
Question
Hello Rabbi, and have a good week,
In the framework of your lesson "Debts and Rights in Jewish Law," you mentioned that laws appearing in Choshen Mishpat are laws that stem from the power of a right, not from the power of an obligation. Regarding the Sabbatical cancellation of debts, which appears in Choshen Mishpat, do you also think there that the obligation to cancel the debt stems from the borrower’s right that his debt be canceled? Or from the lender’s obligation to cancel it?
If the Sabbatical cancellation of debts does indeed stem from a right, then ostensibly it would seem possible to apply "the law of the kingdom is law" to it (an implicit condition based on the laws of the State of Israel), which establishes that the Sabbatical year does not cancel a debt; and then ostensibly it would follow that nowadays in the State of Israel the Sabbatical cancellation of debts does not apply even without a prosbul, would it not?
With blessings,
Answer
It is fairly clear that this is not an obligation of Choshen Mishpat. The borrower has no right that his debts be canceled. That is certainly true according to the view that the debt is not canceled at all; rather, the lender must release it (the Yere’im).
The reason this appears in Choshen Mishpat is that it is a halakhic detail dealing with loans and debts that are discussed in religious court, so it was brought here to complete the picture. And perhaps it appears there because the matter itself is discussed in religious court (like coercion regarding commandments from Orach Chayim—such as lulav or sukkah—which is also discussed in Choshen Mishpat because it is carried out in religious court).
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Questioner:
But then it will be difficult in light of what is written in Section 9 of Siman 47:
"If he stipulated with him that this debt should not be canceled, even in the Sabbatical year, his stipulation stands, for he thereby obligated himself monetarily in something that the Torah did not obligate him, and he is therefore liable."
If there is an obligation here on the lender to cancel the debt, how can he stipulate against that obligation? After all, with interest, a similar stipulation is not valid.
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Rabbi:
I do not think that is difficult. After all, one can also stipulate regarding ona'ah, just as with the Sabbatical year, and in several Talmudic passages it is explained that this is permitted if one does not stipulate against the Torah but rather against the person (a stipulation that "you shall not cancel my debt in the Sabbatical year," and not that "the Sabbatical year shall not cancel it for me"). When one stipulates with the person, the stipulation is not a stipulation against the Torah, and the simple explanation is that such a stipulation means telling the person (the borrower) to give gifts, and not really not to cancel the debt. He stipulates with him that he will give him a gift instead of repaying the canceled debt. In monetary matters one can do such a thing, precisely because such a stipulation is not repayment of the debt but a gift. And a person can always give gifts.
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Questioner:
According to this explanation, it would also be permitted to give a gift as interest (which is also a monetary matter), would it not?
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Rabbi:
Not entirely clear, since the prohibition of interest is a prohibition on giving gifts. That itself is what was forbidden to the borrower: to give the lender gifts in exchange for the loan. At least rabbinically, even verbal interest was forbidden (and if it had been fixed at the time of the loan, perhaps it would have been forbidden by Torah law).
I do not have my books with me right now (I’m on the road), but that is what seems reasonable to me.