Q&A: Concern About Shemitta Close to the Seventh Year
Concern About Shemitta Close to the Seventh Year
Question
Hello Rabbi,
In Parashat Re'eh there is a puzzling verse saying that one may not refrain from lending to a poor person close to the seventh year because of concern about shemitta:
(7) "If there will be among you a needy person, one of your brothers, within any of your gates in your land that the Lord your God gives you, you shall not harden your heart nor shut your hand against your poor brother.
(8) Rather, you shall surely open your hand to him, and surely lend him sufficient for his need, whatever he lacks.
(9) Beware lest there be in your heart a base thought, saying: The seventh year, the year of release, is approaching—and your eye be evil toward your poor brother, and you do not give to him; and he cry out against you to the Lord, and it be a sin in you."
But this passage is speaking about a loan to a poor person against collateral ("you shall surely lend him"), and Maimonides writes that "one who lends against collateral, the debt is not cancelled." In addition, the concern can be removed by making a stipulation (Maimonides writes: "If he stipulated with him that this debt should not be cancelled, even in the Sabbatical year, his stipulation stands"). If so, why is there a need to beware of this concern in the verse?
Best regards,
Answer
A very good question (it seems to me that lending against collateral appears explicitly in the Mishnah at the beginning of chapter 10 of Shevi'it).
In principle, there is the rule of "if it is not relevant to this matter," meaning that even if some principle is written in a context where it does not apply, we apply it to another context. For example, giving generously, which is written regarding the tithe-offering from the tithe, some of the tannaim redirected that to the great terumah, because the tithe-offering from the tithe has a fixed measure, so there is no question there of being generous or not.
See my article here: https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%9E%D7%A6%D7%95%D7%95%D7%94-%D7%A1%D7%91%D7%A8%D7%90-%D7%95%D7%A8%D7%A6%D7%95%D7%9F-%D7%94-%D7%A2%D7%99%D7%95%D7%9F-%D7%91%D7%A9%D7%99%D7%A2%D7%95%D7%A8-%D7%95%D7%90%D7%95%D7%A4%D7%9F-%D7%94/
As for the stipulation, that depends on an amoraic dispute—whether it helps to make a stipulation that bypasses the Torah, namely "that the Sabbatical year should not cancel my debt." In any case, it is possible that even if a person makes such a stipulation on the loan, he still violates "beware lest." This would also explain the question raised by the medieval authorities (Rishonim): what room is there for a prohibition against demanding payment when the debt is cancelled automatically? That is the view of most medieval authorities, aside from the Yere'im. This still requires further examination.
Discussion on Answer
I made a small update to the end of my last comment; you might not notice, so I’m pointing it out.
You’re making a non-necessary assumption. The Torah assumes that if you close off all the other options for the lender, he will in fact lend to the poor person and cancel the debt as Torah law requires. And if you allow him to lend on condition, he’ll do that, and then the poor person loses.
If the Torah assumed a person would prefer the criminal option, then your whole discussion never gets started. Just as there would be no point in imposing a prohibition on lending conditionally, there would also be no point in imposing a prohibition on not lending or on collecting the debt, because in any case he would do that or not lend at all (he’d prefer wrongdoing).
I recently thought of an answer to the first part of the question regarding collateral. Maimonides writes:
"One who lends against collateral, the debt is not cancelled, provided the debt corresponds to the collateral; and if it was more, the excess is cancelled."
Apparently the loan to the poor person was indeed against collateral, but since he was poor, presumably not the entire loan was covered by the collateral, only part of it. So the lender knew that when the seventh year arrived he would have to forgo the part of the debt that was not covered by the collateral, and that is what concerned him.
Maybe. In fact, the concern is that the lender will demand collateral for the full amount, and the poor person won’t have it, and then he’ll refrain from lending to him.
I happened to come back to this question again, and I saw the commentators say this:
Ha'amek Davar, Deuteronomy, Parashat Re'eh, chapter 15 verse 8:
The plain meaning of the term avot is a loan, as in “and you shall lend to nations,” etc.
I returned again to this topic, and I saw that it is written as you said in the Beit Yosef:
Makkot 3b:
"On condition that the Sabbatical year not cancel my debt — the Sabbatical year does not cancel it."
And Rashi wrote: "Even though he stipulated against what is written in the Torah, his stipulation stands."
But the version in Beit Yosef, Choshen Mishpat section 67, in Rashi reads: "Even though he violated what is written in the Torah."
Meaning, that it is forbidden to do so, but if he did it, the Sabbatical year does not cancel the debt.
Based on this, the Ritva’s difficulty is resolved: "Since this condition is valid, why did Hillel need to institute the prosbul?"
That is, why did "the people refrain from lending to one another" (tractate Gittin 36b), to the point that Hillel had to institute the prosbul—why didn’t he teach them to do as Samuel said? After all, Samuel himself said in tractate Gittin 36b, "This prosbul is an insult to the judges; if I had the power, I would abolish it," meaning that the prosbul leniency is not so proper.
And according to the Beit Yosef’s version, it is explained that such a stipulation is a full-fledged prohibition.
I thought of another explanation regarding the issue of stipulating, and I’d be happy to hear what you think:
From the perspective of the Holy One, blessed be He, He initially wanted to create legislation that would benefit the weak (= poor people who owe money to others). It is well known that any social legislation for the benefit of some weak group (for example, paid maternity leave at the employer’s expense) carries the risk of being a double-edged sword that can end up harming the very group it was meant to help. For example, if the employer from the outset refrains from hiring a woman whom he suspects may soon become pregnant, in order to avoid paying the “penalty” of maternity leave out of his own pocket, then the legislator came to fix something and ended up causing harm. To deal with concerns of this kind, returning to the commandment of debt release in the Sabbatical year, the Holy One, blessed be He, seemingly should have legislated two additional commandments that would protect the commandment of debt release from being bypassed:
1) Not to refrain from lending to a poor person out of concern that the debt will be cancelled in shemitta (let’s call this commandment A).
2) Not to stipulate with the poor person that “the Sabbatical year should not cancel my debt” (let’s call this commandment B).
The problem that would arise if the Holy One, blessed be He, had legislated commandments A+B is that a person who could not withstand the test would simply refrain from lending to the poor person altogether. In principle, he would have four options before him:
1) Lend to the poor person and cancel the debt, but that is too hard for him, so he gives up this option.
2) Lend to the poor person and not cancel the debt — neglecting the positive commandment of debt release.
3) Refrain entirely from lending to the poor person because of concern about shemitta — violating prohibition A.
4) Lend to the poor person and stipulate that the Sabbatical year should not cancel the debt — violating prohibition B.
Since option 1 is too difficult for him, he is left to choose among the other three options, all of which involve a sin toward Heaven, and so he will prefer option 3, because at least in that option he comes out best financially (he does not cancel the debt, and he also does not have to lend to the poor person) — and thus the poor person ends up losing from the whole legislative move of the Holy One, blessed be He. So the legislator came to fix something and ended up causing harm. Therefore, the Holy One, blessed be He, preferred to refrain from commanding B, because then that same person would face a somewhat different picture of options that would prevent harm to the poor person:
1) Lend to the poor person and cancel the debt, but that is too hard for him, so he gives up this option.
2) Lend to the poor person and not cancel the debt — neglecting the positive commandment of debt release.
3) Refrain entirely from lending to the poor person because of concern about shemitta — violating prohibition A.
4) Lend to the poor person and stipulate that the Sabbatical year should not cancel the debt — religiously acceptable, like any halakhic workaround.
With that picture of options, the same person will now prefer option 4, because on the one hand it is not as economically difficult as option 1, and on the other hand it is halakhically acceptable. In such a setup, the poor person is less harmed than in the previous one.
And if you now ask: what did the Holy One, blessed be He, gain through His enactment? After all, now everyone will prefer option 4, and so the whole commandment of debt release becomes pointless. One could answer that this is something like a non-obligatory commandment fulfillment, like charity beyond the basic required amount. That is, someone who does not want to fulfill the positive commandment of debt release can use a legal workaround to avoid neglecting the positive commandment without harming the poor person (by refraining from lending). But apparently there will be people for whom the very existence of the positive commandment will lead them to want to lend to the poor person and cancel the debt for his benefit, and thus the Holy One, blessed be He, has created here a non-binding motivation (“a carrot” without “a stick”) to help the weak.