Post "fixed" by Rael Levinsohn. Yasher Koach!
By Rabbi Y. Bechhofer
The Talmud in Yebamot 89b adduces two sources for Hefker Bes Din Hefker ( HBDH) – Rav Yitzchak derives the halachah from Ezra 16:8, where mention is made of Ezra's decree, Any person not coming within three days (to assemble in Jerusalem) at the order of the nobles and the elders shall have all his property confiscated. Rav Elazar derives the halachah from Joshua 19:51, where the leaders of the nation are likened to fathers. From this analogy, Rav Elazar reasons that just as a father may dispose of his son's property as he sees fit, the leaders may dispose of the properties of the nation, in whatever way they deem proper.
Maharshal1 notes a major difference between these two sources: from the source in Ezra one can only derive that Bes Din can seize property, whereas the source in Joshua seems to indicate that Bes Din also possesses the legal right to place this property in another's possession.
Another difference is also apparent. The source in Ezra is dealing with the extraordinary powers of Bes Din – beyond normal legal parameters - as a governing body ("serarah"), whereas the source in Joshua - pertaining to the proper and just division of Eretz Yisrael - is dealing with normal judicial legislative powers ("hora'ah").2
These two categories of the rights of Bes Din to supersede private ownership may be recognized in the Rambam, Sanhedrin chapter 24, in which special procedures of Bes Din are enumerated. In the first halachah of the chapter, Rambam writes that a judge ruling on financial matters where no absolute proof is available (e.g. witnesses, documents, chazakos, etc.) may consider circumstantial evidence and his own personal reasoning and understanding of the case in reaching a decision. In the sixth halachah, Rambam relates that a judge may seize (make hefker) a person's money and dispose of it as he sees fit in order to "mend or strengthen the fences of the law.
As basis for the latter halachah, the Rambam notes the above mentioned verse in Ezra. It thus seems that the latter halachah is. based on the extra-legal power of Bes Din to seize property whenever necessary in. order to govern effectively, as derived from the case in Ezra. The former halachah is based on the source in Joshua, and expresses the right of Bes Din to set and follow self generated guidelines and requirements in judicial and legislative settings. We may classify these two types of power respectively as extralegal and intra-legal HBDH.3
The Talmud in Gittin 36b quotes Shmuel's opinion that a "Pruzbul" -. the document written in court stating that the law preventing collection of debts which takes effect on the last day of the Shemitta year4 does not apply to the loans specified - may only be written by distinguished Batei- Din (those of Sura and Neharda'a), which are entitled to utilize HBDH.5
The Tur (Hoshen Mishpat 240) In the name of Rabbeinu Chananel's tradition, cites the same requirement in the halachah of Shuda Dedayna – intra-legal HBDH - only a distinguished Dayan may rule in this manner.6
The Talmud (ibid 37a; Shevi'is 10:6) further notes the halachah that a Pruzbul may only be written against a debtor who owns land.7 In explanation of this halachah, Rashi and Tosafos in Gittin and the Rosh in Shevi'is write that it is a rare case that the debtor should possess no land upon which the creditor may hold a lien, and Takkanos Chachamim such as Pruzbul do not textend to exceptional cases.
However, Rabbeinu Shimshon in his commentary on Shevi'is understands this halachah differently. In order for a Pruzbul to be effective, funds equal to the sum of the loan must be placed under Bes Din's control. This is practically possible only with real estate. After the Pruzbul is written, even were the land to be sold, Bes Din's prior lien would prevail. Chattel and currency could be disposed of secretly, and placed beyond hope of collection. A similar explanation is advanced by Rashbam (Baba Batsra 66a).8
The limitation of a Pruzbul to cases where land can be involved - according to Rabbeinu Shimshon and Rashbam, who view this limitation as inherent in the Takana, as opposed to the Rishonim, who view it as incidental – is reminiscent of Rabbeinu Chananel's tradition, which allows application of Shuda Dedoyna - intra-legal HBDH - only in matters concerning real estate (as is the halachah requiring a distinguished Bes Din). Indeed, if we can prove that the HBDH of Pruzbul is one of the intralegal type, we may be able to link the halachos and understand the former on the basis of the latter.
The SM'A (Hoshen Mishpat 67:22) outlines the development of the Takanas Chachamim of Pruzbul. Prior to the invention of the Pruzbul, a creditor desiring to circumvent the D'Oraysa ban on collection of debts caused by Shemitta would place all of his promissory notes in the possession of Bes Din. Bes Din would thus be empowered to collect the debts. Since the halachah only prevents individuals from collecting monies owed them, Bes Din would be free to collect from the debtor and pay the creditor.
Hillel devised the Pruzbul as a method of transferring the right of collection to Bes Din without the Bes Din actually receiving notes against the debtors – by giving Bes Din a lien on the debtor's real estate – thereby authorizing Bes Din to act against verbal loans as well.
A different explanation of the relationship between the earlier manner of circumventing the ban and the Takana of Pruzbul is advanced by Tosafos (Gittin 36a-d.h. Mi'ika).
The instrument of Pruzbul, according to this view, is a legitimate transfer of debts to Bes Din, and would therefore properly circumvent the D'Oraysa ban within the framework of the earlier manner - even in the case of verbal debts. However, the very existence of such a ban demonstrates the intention ofthe Torah that such loopholes not be institutionalized.
Hillel's rationale was that it would nevertheless be better to formally adopt this Heter than to allow the continuation of a situation in which people refused to lend money on the eve of Shemitta.9
Viewing the Pruzbul in one of these two perspectives may assist us in understanding both Rambam’s interpretation of the aforementioned sugya in Gittin, and his conclusion that a Pruzbul is effective only against a Rabbinic ban on the collection of debts - i.e. when Shemitta is D'Rabbanan, as it is today.
As the Kesef Mishna (ibid) explains, only since the money is D'Oraysa still owed, to the creditor (in absence of a D'Oraysa ban) does Bes Din utilize HBDH to overcome the Rabbinic ban.
However, would the money be absolutely the debtor's - i.e. if the D'Oraysa ban would apply to this loan - Bes Din would not utilize HBDH to extract the money from him. It seems clear that this is intra-legal HBDH, which must function within the parameters of the law – D’Oraysa law. Therefore, a Pruzbul – the circumvention of which is limited to Rabbinic bans.10
Linking Rabbeinu Shimshon's understanding of the requirement of land with the view of the Rishonim that Pruzbul is a function of intra-legal HBDH, then, the halachah that emerges is that Bes Din may only employ this unique judicial-legislative power where they have some control over the property in question.
As we explained previously, this is only possible where Bes Din is dealing with a question of real estate. Rabbeinu Chananel's tradition is based on the understanding that when the litigants come to Bes Din, they are effectively placing the disputed property under Bes Din's control – thus allowing the Dayan to employ intra-legal HBDH - Shuda Dedayna.
Yam Shel Shlomo, Yebamos 19.
See Margaliyos Hayam, Sanhedrin 43b, para. 10, concerning the process of psak halachah inherent in the division of Eretz Yisrael.
See D'var Avraham de Teshuvos paras. 5-6.
See Shemitta Kehilchasa pp. 85-91. Some Rishonim hold the ban occurs at the onset of Shemitta.
Rambam and Shabbas Ha'aretz Hilkhos Shevi'is 9:17, Shulkhan Arukh, Hoshen Mishpat 67; 18. The Rema is lenient in this halachah in Shemitta D'Rabbanan.
That intra-legal HBDH requires a distinguished Bes Din is demonstrated in several cases. See Baba Metzia 32a; Tosafos ad. loc. d.h. Bes Din; ,Rambam, Hilkhos Shll.1kkimV'shutfim 5: 9 ; Shulkhan Arukh, Hoshen Mishpat 176:17.
Rambam ibid 9:19.
See Mishna Rishona; Toras Zeraim on the Mishna, Shevi' is 10:2.
There are difficulties with Tosafos’ opinion. See Yerushalmi Shevi'is 10:1; Mishna Rishona ibid.
Ra'avad argues. He holds that since Pruzbul is based on HBDH, it can even override the D'Oraysa ban, and therefore maybe utilized even in case of Shemitta D'Oraysa. It seems that Ra'avad understands Pruzbul as emanating from extra-legal HBDH, its extraordinary powers therefore superseding any halachos concerning monetary matters. This position may be traced to Ran's understanding of Pruzbul (Teshuvos Haran 77. See Gilyonei Hashas 36a, Ran views the Bes Din's role in writing a Pruzbul as purely officiary, as a sort of grand notary public).The difficulty in distinguishing between the procedures of placing promissory notes in Bes Din's possession as opposed to the procedure of Pruzbul led Ran to understand that the Pruzbul document in and of itself permits the creditor to collect directly from the debtor, despite the halachah of Shemitta, without resorting to Bes Din's intervention. If this is the case, we cannot understand Pruzbul as a novel manner of transferring a right to collect debts, nor as an institutionalization of a previously shunned Heter, but rather as a radical new Takana based solely on Bes Din's power of extra-legally abrogating personal ownership. Therefore, it is irrelevant whether the ban is D'Oraysa or Rabbinic. Bes Din's absolute control over monetary matters overrides all restrictions and halakhic parameters.