Halakhah su Deuteronomio 15:2

During the course of 5747, a sabbatical year, many technical questions, both old and new, with regard to observance of the laws of shemittah became topical issues. Somewhat tangentially, the status of checks in Jewish law also received renewed attention in the context of those discussions.¹I am indebted to my son Moshe whose work in preparation of a paper on prozbol spurred my interest in this topic. "Every creditor shall release that which he has lent unto his neighbor; he shall not exact from his friend and his brother" (Deuteronomy 15:2) serves as an injunction not to demand repayment of loans that remain outstanding during the course of the sabbatical year. An examination of the nature and function of a check is prompted by the question of whether a person who has received a check, but who has not cashed it prior to the close of the sabbatical year, may present the check for payment after Rosh ha-Shanah i.e., after expiration of the sabbatical year. Of course, as is the case with regard to all outstanding debts, the recipient of a check has the option of executing a prozbol, viz., a device designed to permit the collection of debts after the expiration of the sabbatical year by means of a pro forma assignment of the debt to a rabbinic court. The identical question can thus be reformulated as a query as to whether it is necessary for the recipient of a check to execute a prozbol in order to be permitted to present the draft for payment after the sabbatical year has drawn to a close.

A year of peace and quiet, where there are no tyrants or taskmasters; “he shall not oppress his fellow or kinsman, for the remission proclaimed is of the Lord”;²⁰Deut. 15:2. The verse quoted refers to the remission of debts in the shmita and prohibits creditors from exacting payment from debtors. a year of equality and relaxation in which the soul may expand toward the uprightness of God, who sustains all life with loving-kindness; a year when there is no private property and no standing on one’s rights, and a godly peace will pervade all that breathes. “It shall be a year of complete rest for the land, but you may eat whatever the land will produce during its Sabbath—you, your male and female slaves, the hired and bound laborers who live with you, and your cattle and the beasts on your land may eat all its yield.”²¹Lev. 25:5–7. Pernickety claims to private property will not profane the holiness of the produce of the land during this year, and the urge to get rich, which is stimulated by trade, will be forgotten; as it says, “for you to eat—but not for your trade.”²²Mishnah, Shevi’it 7:3. In this passage, Rav Kook draws on a series of halakhic midrashim based on a phrase from Lev. 25:6, “for you to eat,” which is inter-preted to exclude making use of food grown in the Land of Israel during the shmita for purposes other than eating. A spirit of generosity will rest on all; God will bless the fruit of the land “for you to eat and not your loss.” Human beings will return to a state of natural health, so that they will not need healing for sicknesses, which mostly befall us when the balance of life is destroyed and our lives are distanced from the rhythms of nature; “for you to eat” but not to make medicine and not to use as bandages.²³Talmud Bavli, Sukkah 40a. See the introduction to this volume for further discussion of Rav Kook’s astonishing claim that shmita will promote a natu-ral state of human health that will make medicine unnecessary. A holy spirit will be poured out upon all life; “it will be a year of complete rest for the land—a Sabbath of the Lord.”²⁴Lev. 25:4–5.

A second argument in support of the position that once a check has been issued the underlying debt is not extinguished at the close of the sabbatical year, even if the check has as yet not been presented for payment, is advanced by R. Moshe Rosenthal, Kerem Ẓion, Hilkhot Shevi 'it (Jerusalem, 5740) 20:1, Giddulei Ẓion, no. 1. The Gemara, Gittin 37a, declares that shemittah discharges uncollected debts, but debts which are "as if collected" (ke-gavuy) are not discharged. Hence a loan against a pledge of chattel is not discharged since, if the debtor were to default, the creditor would simply retain the pledge in satisfaction of the debt. Similarly, if a judgment of a court has been obtained commanding payment, the debt is regarded as if collected. The rationale underlying this provision is that, subsequent to the sabbatical year, the creditor is bound by the injunction "he shall not exact from his friend" (Deuteronomy 15:2) but remains free to collect his debt provided that it is not necessary to "exact" or demand payment, e.g., if he has the option of retaining the pledge or if the court has already demanded payment. R. Joseph Saul Nathanson, Teshuvot Sho'el u-Meshiv, Mahadura Hamisha'ah, no. 71, advances this consideration as one of an amalgam of reasons in ruling that a promissory note payable to the bearer may be used by an assignee to collect the debt even after the lapse of the sabbatical year. Sho'el u-Meshiv argues that only debts requiring a "demand" by the creditor are discharged; the assignee, however, is not the creditor and hence his "demand" is not deterred. Applying a similar line of reasoning, Rabbi Rosenthal argues that by issuing a check the debtor has discharged his responsibility to the creditor and the creditor need no longer "demand" payment of the debtor but of the bank. Rabbi Rosenthal does, however, concede that checks postdated and thereby made payable only after the close of the sabbatical year cannot be regarded "as collected." This position is also adopted by Rabbi Spira in his Mishnat Kesef, II, 67:14, Panim Hadashot 18:2–3, as well as in an appendix to that volume, "Dinei Shemittat Kesafim u-Prozbol," chap. 2, sec. 6, and by R. Gavriel Zinner, Nit'ei Gavri'el (New York, 5747) 17:12, note 20.