PROSBUL ( or ):

By: Executive Committee of the Editorial Board., Julius H. Greenstone

An abbreviated form of the Greek phrase πρὸς βουλῇ βουλευτῶν ("before the assembly of counselors"; comp. Schürer, "Hist. of the Jewish People," etc., Eng. ed., division ii., vol. i., p. 362, who favors the derivation from προσβολή = "delivery"); a declaration made in court, before the execution of a loan, to the effect that the law requiring the release of debts upon the entrance of the Sabbatical year shall not apply to the loan to be transacted (Jastrow, "Dict." s.v.). The formula of the prosbul was as follows: "I deliver [, answering to the Greek word προσβάλλειν; comp. Schürer, l.c. p. 363, note 162] unto you . . . judges of . . . [place], that I may at any time I choose collect my debts." This declaration was attested by witnesses or by the judges of the court before whom the declaration was made (Sheb. x. 4).

The institution of the prosbul is ascribed to Hillel; and the manner of its introduction is described in the Mishnah as follows: "Seeing that the law which prescribed the release of all debts every seventh year [Deut. xv. 1-3; see Sabbatical Year] brought about the harmful consequence that people refused to loan to one another and thus violated what was written in the Law, namely, that a money loan should not be withheld because of the approach of the Sabbatical year [ib. verses 9-11], Hillel instituted the prosbul" (Sheb. x. 3). This institution was to benefit both the rich and the poor. The rich were thereby protected against loss of property; and the poor could thus obtain a loan whenever they needed it (Giṭ. 37a). The reason for this innovation was therefore given as "mi-pene tiḳḳun ha-'olam" = "for the sake of the order of the world" (i.e., for the better organization of society; Giṭ. 34b; comp. Rashi to Giṭ. 37a, s.v. "Bole"; "Kesef Mishneh" on Maimonides, "Yad," Mamrim, ii. 2).

From the expression "that which is thine with thy brother thine hand shall release" (Deut. xv. 3), the Rabbis derived the law that if one delivered his debts to the court, he might collect them after the Sabbatical year (Sifre ad loc.; Sheb. x. 2; comp. Maimonides' commentary ad loc.; Giṭ. 37a). Thus the institution of Hillel would appear to be only a suggestion to the people to take advantage of a law which already existed (it is probable, however, that this law was derived after the promulgation of the institution of the prosbul, in order to make it appear to rest on Biblical authority). Later authorities made Hillel's institution an extension of this law. According to the law as derived from the Biblical passage, the principle of limitation by the entrance of the Sabbatical year did not apply in a case where the promissory notes were delivered to the court and the court was thereby made the creditor. Hillel's institution provided that the delivery of the notes was not necessary; that even when the loan was contracted by word of mouth ("milweh'al-peh"), the declaration in the presence of the court was sufficient to allow the creditor to collect his debt even after the Sabbatical year (see R. Nissim to Alfasi, Giṭ. iv. 3, s.v. "Hitḳin"; comp. Mak. 3b; Rashi and Tos. ad loc.; comp. Weiss, "Dor," i. 172, note 2). Although it was conceded that the institution of the prosbul was based on Biblical authority, the later amoraim expressed their astonishment at the fact that Hillel dared to abrogate the Mosaic institution of the release of all debts every seventh year. To make Hillel's venture less daring, some declared that his innovation applied solely to the time when the law of release itself was only rabbinic, while others included it under the general principle which gives power to every court to declare property ownerless and to give it to whomever it may decide (Giṭ. 36a, b; comp. Tos., s.v. "Mi"; see Sabbatical Year).

A prosbul could be written only when the debtor possessed some real property from which the debt could be collected (Sheb. x. 6; comp. Yer. Sheb. x. 3, where one opinion [Rab's] has it that both the debtor and the creditor must possess real estate, while another opinion [R. Johanan's) permits the prosbul to be written even if only one of them has real estate). The Rabbis, however, were very lenient with regard to this provision and permitted the prosbul to be written even though the debtor had only a very small piece of real estate, or even when the creditor transferred to him temporarily a piece of land sufficient to erect an oven upon, or even if the debtor held in pledge real estate belonging to another (Sheb. x. 6; Giṭ. 37a; "Yad," Shemiṭṭah, ix. 19; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 67, 22-25). A prosbul that was antedated was considered valid; postdated, not valid (Sheb. x. 5; comp. Maimonides' commentary ad loc and note; see Tosef., ib. viii. 11; "Yad," l.c. ix. 22, 23; "Kesef Mishneh" ad loc.). During the Hadrianic persecutions, when all Jewish laws had to be observed secretly for fear of the Roman officials, it was ordained that a creditor might collect his debt even though he did not produce a prosbul; for it was presumed that he had possessed one, but had destroyed it out of fear (Ket. 89a; comp. Weiss, l.c. ii. 134, note 1). This temporary provision became an established law for all times; and the creditor was believed when he alleged that he had lost his prosbul (Giṭ. 37b; "Yad," l.c. ix. 24; Ḥoshen Mishpaṭ, 67, 33). In accordance with the principle that "the court is the father of the orphan," minor orphans were not called upon to prepare a prosbul during the Sabbatical year; for without this formality their debts were regarded as the debts of the court (Giṭ. 37a; "Yad," l.c.; Ḥoshen Mishpaṭ. 67, 28).

The Amoraim were divided in their opinions about the value of Hillel's institution. Samuel said that if he had had the power he would have abolished it,while R. Naḥman wished to extend it so that even if no prosbul was written the debt might be collected after the Sabbatical year (Giṭ. 36b). Only the highest court in each generation might undertake the preparation of a prosbul (ib., according to Tos., s.v. "De'alimi"; "Yad," l.c. ix. 17). While the question raised in the Talmud (ib.) whether Hillel established the prosbul only for his generation or for all generations to come was left undecided, it appears that the institution was in force in Talmudic times as late as the fourth century. The disciples of R. Ashi satisfied themselves with an oral contract between them, a practise which was later established as law (Ḥoshen Mishpaṭ, 67, 20, and Isserles' gloss). In the Middle Ages the use of the prosbul ceased entirely, so that Asher ben Jehiel, at the beginning of the fourteenth century, stated that on his arrival in Spain he was vexed to find that people were accustomed to collect debts after the Sabbatical year without any prosbul. His endeavors at reviving this institution, however, proved of no avail (Asheri, Responsa, No. 77 [ed. Wilna, 1885, p. 71b]; Ḥoshen Mishpaṭ, 67, 1, Isserles' gloss; see Sabbatical Year).