Torah Sanctioned Loopholes
First the good news: Behar is a tiny parsha, only 57 pisukim (5th shortest) barely enough time to engage in a decent conversation with your chaver. It ranks 8th in number of mitzvois, not too shabby for a tiny parsha. Behar is the 32nd of 54 parshas and next to last in Vayikra. Ober because it’s not a leap year and efsher taka because it’s difficult to get into some juicy loshoin horo in but 57 pisukim, the rabbis added another parsha with 78 and this shabbis you’ll have a total of 135 pisukim during which you can either initiate, participate in, or add to what is being said by someone, who heard from someone, something about someone else. A few will be more machmir (strict) and will only discuss these topics bein-gavra- ligavra (between aliyos) so as not to disturb the decorum of the shul. Moreover, mistama you won’t be paying much attention anyway to parts of Bichukoisai as the baal koira is required to read them in a hushed tone. And if someone is taka reading in a hushed tone, it must mean that he doesn’t want us to hear what he’s reading. Should we then annoy him by paying close attention? Mistama not! And even more moreover……….the curses the RBSO will lay out, the very ones He has in mind for you should your chazerish behavior continue unabated, will mostly be repeated – in even greater detail- later on in parshas Ki Sovi. Why worry now?
And with the reading of Bichukoisai, we will conclude sefer Vayikra. Next week as we begin book number four, Sefer Bamidbar, we’ll again visit the Yiddin as their trek through the desert, originally scheduled to take but days and weeks, will for the sin of a few miraglim (spies) and some oversized fruit they schlepped back and then described, be elongated into 40 years. During that time period, the Yiddin, mistama bored out of their minds with little to do, no TV, cable, satellite and avada not a single iPad among them, will resort to making their own entertainment. The RBSO will not be pleased with their selected activities and will take the opportunity to thin out the population so that by the time the Yiddin will make it over to the Promised Land, none of the men who had left Mitzrayim – save Yihoishua, Kolave and maybe a few others- will be alive for the final journey.
Kimat di gantze parsha of Behar (nearly the entire parsha) is dedicated to Shmita and Yoivel. Who and what are they you ask? Nu it’s taka a shanda and a bizoyoin (shame and disgraceful) to even hear the question and only an oisvorf would taka dare. Shmita and Yoivel are concepts – mitzvois, heylige ones that the RBSO himself gave over (apparently) at Har Seenai. So why repeat them here? Efsher we can kler (ponder) that the Yiddin were so mesmerized with the thunder, sound, and light show or perhaps they were too shocked to hear the 5 loi sah-says that day, that they mamish weren’t paying attention when the RBSO himself told them about the laws of Shmita and Yoivel.
We have previously covered these parshas, alone and together. You can of course find many givaldige insights on these parshas over at www.oisvorfer.com. We’ve covered Shmitta and Yoivel in depth and also discussed how some of the mitzvois found in Behar gave birth to a few of the greatest sanctioned loopholes and how the wise men of that time figured out that loopholes are an integral part of our Toirah observance. The bottom line: Bazman hazeh (in our times) we do not mark Yoivel for a variety of reasons. And as to Shmitta, volumes have been written and rabbis continue to argue about its observance in our times. Much ink continues to be spilled. And the bottom line? Aside from a shtikel plowing we try to do from time to time, if you chap, most of us are not farmers and these laws mostly do not apply to us.
As stated above, two of the most famous examples of legal loopholes are found in parshas Behar and though we have previously discussed a few of these givaldige loopholes, it’s avada worthwhile doing a shtikel chazora (review) because loopholes are not concepts unique to the legal profession. Seemingly, they were first introduced many generations earlier by a few very smart rabbis who were forward thinkers. They have since become a mainstay of our Toirah observance. One could argue that legal loopholes may taka facilitate better observance. And while many argue and remain frustrated when technicalities change the outcome of a case, when a guilty person is found innocent because a glove wouldn’t fit or because of a procedural technicality, it epes appears that even our rabbis of yore chapped that at times we need to more carefully examine both the letter and the spirit of the law and to see if there is any maneuverability. And taka because of a few interesting mitzvois found in parshas Behar, these good rabbis sprung into action and whenever they felt that a particular mitzvah was no longer relevant or applicable, they developed a work-around, a hair-splitting way to deem it inoperative.
In other words: could we really be considered observant Jews absent of sanctioned loopholes? Would we, and could we survive without loopholes? Ober, are we suggesting that there are mamish loopholes around the RBSO’s mitzvois and commandments? Are they mamish legal? Seemingly they are! And to chap how, why and when they came about, lommer unfagin with a few laws about Shmita.
Besides the land restrictions, Shmita nullifies outstanding debts. It does what? It’s one thing to prohibit plowing – many are used to this already, if you chap- ober the nullification of debts? And the halocho (rule) is or was azoy: at the end of a Shmita year, all loans or debts between Jewish people (men or women) that are due before Rosh Hashono, are cancelled. Over and done! Did you just read that one can borrow money from his best friend, wait seven years (even less if the loan was taken closer to a Shmita year) and then tell the lender that he’s not being paid because his loan expired due to Shmita? Indeed you did. This is called ‘Shmitas Kisaofim’ (a debt wipe-out, if you will). Moreover, not just is the loan wiped out but one is forbidden by a loi-sah-say (negative prohibition) from requesting repayment from the borrower. Requesting repayment of your loan after Shmita, the very one you provided in good faith before the Shmita year, is a no no! This includes debts resulting from monetary loans as well as those incurred from borrowing items that have been consumed. In other words: your money is gone!
On the other hand, why shouldn’t Shmita wipe out your loan? Where is it written that just because you were nice enough to advance a chaver (friend) a much needed loan, that you’re entitled to get repaid? Don’t you know that no good deed goes unpunished? And this isn’t just a minhag (custom) but a din (rule). Want more bad news? Bazman Hazeh (in our times), even when the laws of Yoivel are not applicable, (according to most Halachic authorities), the mitzvah of Shmitas Kesafim (Rabbinic only) remains in effect. And taka why? Says the heylige Gemora: this was instituted so that these laws would not be forgotten from Israel. Ober it appears from the good books, that this ruling applies both in Israel and in chutz Lo’oretz (here), since it is an obligation dependent on the person (gavrah) and not on the land (adomoh).
Shoin, what to do about this halocho? How do we operate? Would people lend money even for interest (we’ll get to that soon) in year six (or earlier) if they understood that such loans are subject to being wiped out in year seven? A nechtiger tug and avada nisht! Ober not to worry because Toirah/shmoira: the good rabbis of yore chapped that business is business and that the rules of Shmita and loan cancellation would mamish shut down the money lending business and efsher the gantze (entire) economy. Who would support their local rabbis if they weren’t getting their loans repaid and couldn’t collect interest? Nu, when the rabbi’s parnosa (livelihood) was potentially affected, they came up with one of the more clever loopholes ever created and named it the Pruzbil. And Chasdei Hashem (through the kindness of the RBSO), halocho makes use of “evasions” of the law in various different realms.
Ober where is it written that one should taka lend money to those in need? Nu…the heylige Toirah (Devorim 15:2; 9-10) says just so in discussing Shmita and let’s learn the pisukim. “And this is the law of the Shmita; to release the hand of every creditor from what he lent his friend; he shall not exact from his friend or his brother, because the time of the release for the L‑rd has arrived … Beware, lest there be in your heart an unfaithful thought, saying, “The seventh year, the year of release is approaching,” and you will begrudge your needy brother and not give him… You shall surely give him, and your heart shall not be grieved when you give to him; for because of this the L‑rd, your G‑d, will bless you in all your work and in all your endeavors.” Shoin, case closed and lending is a must.
Nu, as you can see, the RBSO was worried about us having unfaithful thoughts, even about money issues. Says the heylige Gemora (Gittin) azoy: about a century before the destruction of the Second Beis Hamikdash (Temple) a man named Hillel the Zoken (the elderly) came up with mamish a givaldige loophole, one of many that allow us Yiddin to survive on a daily basis. After all, the heylige Toirah does state Vochai Bohem (and you shall live by them) and avada we translate that to mean that if a law makes life so unbearable, we may find a way around it. Anyway, Hillel saw that people were avoiding lending, and because he didn’t want them to commit the avayro of not lending to those who needed help (a sin mamish described above), as the Shmita year approached, he came up with this brilliant chap (novel idea).
How does it work? Like a loophole should! The Toirah tells us that only private debts are cancelled by Shmita: “He shall not exact from his friend or his brother.” Read those words again. If, however, one owes the court (i.e., the community) money, Shmita does not affect the loan. Based on the wording of the heylige Toirah, Hillel instituted the “pruzbil”: a mechanism by which debts are magically transferred from the individual to a Beis Din (religious court). By making a pruzbil, one makes his private debts public – and therefore redeemable. Shoin no SEC, no IPO- gornisht (nothing). Want to go public? A Simple Pruzbil does the trick. Exactly how the funds are collected by the Beis Din and how they are repatriated to the original lender, ver veyst, but one has to assume that after a proper vig is paid to the Beis Din, the rest somehow makes its way back. Actually, as the Oisvorfer understands the mechanics- once the loan is declared as now belonging to the beis din (with the pruzbil), you can actually collect it yourself. And as to why Hillel was allowed to enact this loophole, we are taught that there was a pressing need. Mistama a concept similar to hefsed meruba (big losses) which did away with sefira and other restrictions and one that will soon allow shuls to swipe credit cards on shabbis following an appeal or an Aliya when one makes a pledge.
Avada you’re totally bewildered at Hillel’s actions for who empowered him to go against what the heylige Toirah’s demands? And as you can only imagine, the Gemora has lots to say on this inyan. And not just the Gemora, for generations since, they’re still discussing Hillel’s bold move, the issues and its mechanics. And says Toisfis (a commentator on the heylige Gemora) azoy: there was mamish no concept of Shmita or Yoivel during the 2nd Beis Hamikdash because a majority of the Yiddin were living outside of Israel, a concept we covered earlier. Hence Hillel did nothing wrong. Others says Hillel was not the creator of this loophole and that he was merely given credit because he publicized an already existing loophole in the Toirah which allowed private debt to be converted into court debt. In other words: Hillel, mistama the first Jew in that position, was acting like the Federal Reserve during a crisis in order to allow the banking system to work for the Yiddin. Shoin, who should it work for, the goyim? Of course you’re now wondering what will happen if and when the Moshiach arrives. Will we need loopholes if they bring back Shmita and Yoivel? Is Hillel coming back? Ver veyst?
And listen to this vichtiger (important) nikuda (point). There are various types of debts which do not require a pruzbil and can be collected after Shmita even without the paperwork. Lemoshol (by way of example), debts which arise as a penalty or fine — such as the money a man must pay his victim for rape or seduction. You can see just how clever our sages were, they chapped even back then that the menner (men) were shlecht (bad boys) and had to make provisions for their victims to be able to collect. Also, a woman’s kesubah (marriage contract) may be enforced. There are a few others but do I expect you to concentrate once you read about seduction? Zicher nisht! Go look them up. Ginig (enough) on the Pruzbil, let’s bikitzur (in short) cover the next beautiful loophole in this week’s parsha: the famous heter Iska. And what is a Heter Iska?
In parshas Behar, we learn that the RBSO wants us, in fact He exhorts us, to assist other Yiddin financially, and prohibits us from charging interest on these loans. Says the Chofetz Chaim that every Yid should grant another Jew an interest-free loan, and recommends that each person apportion some tzedokoh money for granting such loans. As an aside, it is perfectly permissible, however, for a person to invest money in a Jewish business, and to share proportionally in whatever profits or losses there may be.
And to accommodate the over 99% of us that can’t/don’t give such loans, nu- it’s time to introduce for a second time – the heter iska. Nu, zog shoin (tell me already) what is it? Today all that’s necessary to circumvent the law of not charging interest to another Yid, is to sign a heter iska, a document ‘invented’ by our good and thoughtful rabbis, that converts a loan into a business partnership. This is avada very similar to another rabbinic loophole, the very famous mechiras chometz, (selling one’s chometz over Pesach), an inyan (topic) we discuss yearly.
From research the Oisvorfer has done, it appears that the idea of the heter iska arose way back in the seventeenth century, and expanded to enormous proportions over the last hundred years, despite its inherent halachic difficulties, ober as we say over and again: business is business and seemingly, there was little interest (pun intended) in conducting business without real interest. It works like this:
In a heter iska, the “lender” and the “borrower” turn into “investor” (capitalist) and “businessman.” Thus, it is noted that all the documents mentioning the terms “borrower” and “lender” actually mean “investor” and “businessman.” Shoin: a new title and you’re good to conduct business. The investor gives money to the business, and the businessman is supposed to invest the money in a business that yields profits. The profit and loss derived from the money is divided equally between the investor and the businessman, except for the small salary that the businessman takes for his work.
The important point in the agreement is that the investor cannot know exactly how much the businessman profits from the business, and so the parties agree among themselves that the businessman is required to prove the truth of the figures presented by him. If the businessman is unable to prove to the investor how much money he earned, he must pay him demei hispashrus, at the rate of interest. Practically speaking, the businessman (i.e., the borrower) is unable to prove how much his business profited or lost, and therefore he must pay the investor (the lender) the agreed upon demei hispashrus. In other words: a givaldige loophole being used bazman hazeh (in our times) on a daily basis. In fact, banks with branches in heavily orthodoxy communities advertise the heter iska and offer it to all their depositors No more toasters, beach chairs or corning ware: today with your loan, you get only a heter iska! And I kid you not!
Nu, as you can see, our sages of yore were capitalists, they chapped business and they chapped that without creating loopholes, the gantze yiddishe economy might collapse. Were they not mamish brilliant? Did they not sit and ponder and figure out how to make life easy for us back then? They did! We need to bring them back, or, find others in our times that chap these lofty ideas.
And the intershte shira (the bottom line) is seemingly azoy: The emes is that legal loopholes are part of the Divine system, maybe what the RBSO had in mind. And for good reason. The legal loophole is a mechanism to resolve tensions between conflicting values, a way of remaining faithful to the eternal laws of the heylige Toirah while being responsive to the needs of the time.
A gittin Shabbis-
The Heylige Oisvorfer Ruv