Charitable Giving and Shemittat Kesafim: Can They Coexist?

The institution of shemittah, in contrast with the way it has in fact been applied is, to say the least, unusual. Comprising two basic elements—shemittat karka, an obligation to let the land lay fallow, and shemittat kesafim, the requirement to forgive most owed debts—to be put in effect one year out of every seven, its actual practice has often been neglected. In the section of rebuke at the end of Sefer Vayikra, the Torah warns against violating the laws of shemittah, declaring that, “the land shall be paid its resting periods[i],” and at the destruction of the First Temple, after a long era of Israel’s ignoring shemittah, this curse is fulfilled[ii]. Most curiously, though, early in the rabbinic period, the monetary aspect of shemittah is nearly abrogated entirely. Several mishnayot[iii] describe the process by which Hillel, observing that many Jews were not loaning each other money, established the construct of pruzbol, by which people could transfer their debts to beit din and still collect them after the shemittah year. Oddly, the decree is recorded as a response to not just the paucity of loans, but to the fact that this lack of generosity is a violation of a biblical mandate to issue loans to the impoverished. It is surprising that the rabbinic response to the widespread violation of a biblical decree is to essentially create a legal loophole to avoid it. In this essay, we shall analyze the unique aspect of the Torah’s conception of charity which enabled the existence of the institution of shemittat kesafim. Furthermore, we will explore how the replacement of this conception of charity with a different one informed and necessitated Hazal’s willingness to circumvent loan-forgiveness.

The Torah’s conception of economic aid to the poor largely, if not entirely, exists within two arenas: the reservation of leftover agricultural products—leket, shikhehah, and pe’ah[iv]—and the commandment to issue loans to the needy.[v] Giving economically impoverished individuals money with no conditions is not recorded as an obligation in the Torah.[vi] Instead, the verses in Devarim mandate the issuance of loans to the needy: “you shall surely open up your hand to him, and lend him enough for that which he lacks[vii].” While the verb natan, “give,” is used in this collection of verses, the context makes it clear that the reference is to loans. This section follows immediately on the heels of the presentation of shemittat kesafim, whose description makes it eminently clear that the purpose of the elimination of debt—and the purpose of the preceding loans—is to benefit the poor. After the Torah first sets out the basic commandment of the practice, that all loans given to members of the nation are to be forgiven, it makes explicit a previously implicit assumption: “However, there should be no poor person among you, for God will bless you in the land…”[viii] Although the verses, to this point, have made no mention of shemittat kesafim as a structure to protect the poor, it is clear from this verse that the primary beneficiaries from this act will, indeed, be the impoverished. Though the commandment would certainly apply in all situations regardless of the economic state of each individual, and certainly has other effects as well  (like resetting the national economy)[ix] it appears that from the Torah’s presentation the institution exists primarily to further lighten the load from the poor.

The theory that loans to the poor are the Torah’s primary form of charity has other evidence to support it. In the Torah’s first mention of loans, the economically disadvantaged make an appearance: “If you lend money to my people, even with the poor among you, you shall not act as a creditor; do not place interest upon him[x].” The prohibition against charging interest stated here and reiterated in a number of other locations applies to the rest of the Jewish nation as well. Yet the poor are emphasized because the Torah’s system of loans, and therefore the laws surrounding them, is designed to aid them. A society where interest-free loans to the poor are the norm might even reduce expectations of recouping the debt, as the prohibition of interest should shift the mindset of the lender from finance to magnanimity. In addition, Hazal[xi] view this section not as a description of the law in the case that a loan is given, but as a commandment to give the loan. Furthermore, in Shemot, the site of the previously quoted verse, a blanket prohibition is issued upon taking the garment of a debtor as collateral overnight. The seizure of security such as a garment is to be symbolic only, with little practical effect on the day-to-day life of the borrower: “It alone is his covering, it is his clothing for his skin; with what else shall he lie down?[xii]” Later, a far-reaching prohibition is issued on permanently forcibly acquiring the collateral of any pauper[xiii], with the interesting usage of the term tsedakah to describe the practice.  This is the only time this word, so commonly associated with charity, is used in reference to the poor in the Pentateuch. Indeed, other restrictions against excessive pressure in extracting collateral are listed in the surrounding verses. When the Torah conceives of loans, it does so as an institution, at least in part, to benefit the poor; this institution, in turn, becomes the primary way for the better-off to actively help their less fortunate brethren.

We may speculatively suggest that in a society operating under such rules of loans, shemittat kesafim is, if not a logical next step, then a very tenable one[xiv]. If the Torah’s goal in regulating loans, as we have seen, is to emphasize their status as a fundamentally charitable establishment, then the expectations of repayment should be drastically lower than a regulation system in which loans are perceived solely as economically, not socially, driven. Therefore, a period in which all loans are forgiven is perfectly in keeping with the economic and social system prescribed by this model.

By the time of the Rabbinic period, though, this model of charity had shifted to one more familiar to modern-day readers: that of the condition-free donation. In addition, the obligation had become a communal one, where individuals were compelled within the context of their municipalities to donate their share. The Mishnah[xv] describes a “collector of tsedakah’s” responsibilities concerning distribution of food to the poor depending on the food’s ma’aser status. The community, apparently, is expected to appoint an individual whose primary task it was to ensure collection and distribution of alms. The Mishnah in Avot[xvi] describes four types of givers of charity, with no mention of expectation of repayment. More strikingly, several pages in the Babylonian Talmud[xvii] are concerned with the institution of communally enforced charitable giving. Citing numerous Tannaitic sources[xviii] which illustrate the longevity of the institution, the Gemara, in great detail, lays out the obligations of a community to appoint collectors to ensure that donations are given to all destitute. The qualifications of the needy are also systematically prioritized and categorized: a dispute is recorded[xix] as to whether inspection of a pauper’s genuine need for food or clothing is required before distribution. The mechanisms described were rigorous, organized, and systematized: money would be forcibly collected from the residents of an area to be given to that area’s needy.

Fascinatingly, the section in Bava Batra describing these enforced charitable donations contains extensive Scriptural exegesis extolling the praiseworthiness of charitable giving. One of the verses in Devarim, which warns against unwillingness to lend to the poor precipitated by the upcoming shemittat kesafim[xx], is appropriated for a derashah teaching that “one who ignores [giving] tsedakah is comparable to an idol worshipper[xxi].” The straightforward reading of the pasuk can only logically refer to lending, not to donation: there should be no reason that one should be disinclined to donate money on the basis of an upcoming forgiveness of loans. Clearly, Hazal here conceive of the mitsvah of tsedakah as a communal obligation to donate alms, and read the verses in Devarim as relating to such activity.

Given this apparent (and, admittedly, speculative) difference between the dominant conceptions of supporting the poor in the Torah and in Hazal, it is eminently logical that shemittat kesafim was all but unobservable in Rabbinic times. If the dominant mode of giving to the impoverished is through donation, then the character of loans should differ as well. Instead of being perceived as primarily instruments to benefit the less fortunate, loans become business tools like any other, admittedly with socially positive restrictions like the prohibition of interest. This mode of lending would be extraordinarily difficult to maintain if every seven years a mandatory default would occur. Furthermore, in such an environment where loans are always expected to be paid back in full, it would be even harder for the poor to secure loans. Why should a lender offer the use of his money to someone who is unlikely to ever repay him before the Torah decrees that he is no longer obligated to do so? If this conception is correct, then the institution of shemittat kesafim in a society where the primary model of tsedakah is alms and the main function of loans is strictly business-related is simply untenable. It would result in the exact opposite of the outcome intended by the Torah: instead of reinforcing loans to the poor as fundamentally charitable, it would preclude the possibility of magnanimous lending. It is perhaps for this reason that Hillel was willing to virtually abrogate shemittat kesafim. In fact, the verse used in the aforementioned derashah in Bava Batra, which could only have referred to loans but was used to extol charitable giving, is also referenced in the Mishnah in Shevi’it describing Hillel’s innovation. The process of pruzbol, described as a “reparation of the world,”[xxii]truly avoided an unintended consequence which may have resulted from the transition from the primacy of individual loans to communal donations in the tsedakah hierarchy.

It is interesting that although loans are not frequently discussed in Rambam’s formulation of the mitsvah of tsedakah in Mishneh Torah, on his famous list of the hierarchy of donations[xxiii], he mentions both donations and loans given the poor person without his or her having to beg. While the systematized organization of tsedakah leaves little room for loans, Rambam still views them as a significant part of the obligation to support the poor. However, in a society where lending and charity largely occupy two different spheres, it is impractical to try to combine the two. The near-abrogation of shemittat kesafim through a legal loophole may thus represent a bold acknowledgment of the occasional necessity of such a measure.

Daniel Shlian is a first-year student at Yeshiva College majoring in chemistry and Jewish studies.