Talmud - Gittin 36b גיטין ל״ו ב׳

And the Sages instituted that despite this, the Sabbatical Year still will abrogate debt in the present, in remembrance of the Torah-mandated Sabbatical Year. Hillel saw that the people of the nation refrained from lending to each other so he arose and instituted the prosbol. According to this explanation, the ordinance of Hillel did not conflict with a Torah law; rather, he added an ordinance to counter the effect of a rabbinic law.

According to this explanation, the Sages instituted that even in the present the Sabbatical Year would bring a cancellation of debt, despite the fact that by Torah law the debt still stands. The Gemara asks: But is there anything like this, where by Torah law the Sabbatical Year does not cancel the debt, and the Sages instituted that it will cancel? It is as though the Sages are instructing the debtors to steal from their creditors, as by Torah law they still owe the money.

Abaye says: This is not actual theft; it is an instruction to sit passively and not do anything. The Sages have the authority to instruct one to passively violate a Torah law, so long as no action is taken. Rava says: The Sages are able to institute this ordinance because property declared ownerless by the court is ownerless. As Rabbi Yitzḥak says: From where is it derived that property declared ownerless by the court is ownerless? As it is stated: “And whoever did not come within three days according to the counsel of the princes and the Elders, all of his property shall be forfeited, and he shall be separated from the congregation of the captivity” (Ezra 10:8).

Rabbi Eliezer said: The halakha that property declared ownerless by the court is ownerless is derived from here: The verse states: “These are the inheritances, which Eleazar the priest, and Joshua the son of Nun, and the heads of the fathers’ houses of the tribes of the children of Israel distributed for inheritance” (Joshua 19:51). The Gemara asks: What do the heads have to do with the fathers? It comes to tell you: Just as fathers transmit anything that they wish to their children, so too, heads of the nation transmit to the people anything that they wish. This demonstrates that the court has the authority to take property from one person and to give it to another; therefore, the Sages have the authority to decide that all debts are canceled.

§ A dilemma was raised before the Sages: When Hillel instituted the prosbol, was it for his generation alone that he instituted it, and the custom developed to continue using it, or did he perhaps institute it also for all generations?

The Gemara asks: What difference is there whether it was instituted for his generation only or for all generations when either way, it is still in use? The Gemara explains: The difference arises with regard to nullifying the institution of prosbol. If you say that it was for his generation alone that he instituted it, then we can nullify it if we desire. But if you say that he instituted it also for all generations, then there is a principle that a court can nullify the action of another court only if it is greater than it in wisdom and in number. Therefore, we would not be able to nullify the ordinance instituted by Hillel and his court. What, then, is the halakha?

The Gemara suggests a resolution to the dilemma: Come and hear that which Shmuel said: We write a prosbol only in the court of Sura or in the court of Neharde’a, as they were the primary centers of Torah study, but not in any other court. And if it enters your mind to say that he instituted it also for all generations, then let them write a prosbol in the other courts as well.

The Gemara rejects this proof: Perhaps when Hillel instituted the prosbol, he did so for all generations, but only for courts such as his court, which was the primary court of his time, and courts like those of Rav Ami and Rav Asi, as they have the power to remove money from someone’s possession. However, for all other courts, which are not as authoritative, he did not institute this ordinance. Therefore, the statement of Shmuel cannot serve as a proof with regard to the manner in which the prosbol was instituted.

The Gemara suggests another proof: Come and hear that which Shmuel said: This prosbol is an ulbena of the judges; if my strength increases I will nullify it. The Gemara challenges this statement: How could Shmuel say: I will nullify it? But isn’t it the case that a court can nullify the action of another court only if it is greater than it in wisdom and in number? It must be that Shmuel holds that Hillel did not establish the prosbol for all generations, and in his time it carried the force of a mere custom. The Gemara rejects this proof: It can be explained that this is what he said: If my strength increases so that I become greater than Hillel, then I will nullify the prosbol.

By contrast, Rav Naḥman said: If my strength increases, I will uphold the institution of the prosbol. The Gemara asks: What is meant by: I will uphold it? Isn’t it upheld and standing? Why does the prosbol require further support? The Gemara explains: This is what he said: If my strength increases, I will say something about it, and I will institute that even though the prosbol was not written, it is considered as though it was written. Then people would no longer need to write a prosbol, as it would be considered as if everyone wrote one.

A dilemma was raised before the Sages: This ulbena of the judges that Shmuel speaks of, is it a term of insolence, in that the judges are, according to Shmuel, enabling lenders to insolently collect debts that are not due to them, or a term of convenience, in that the judges are saving themselves the inconvenience of having to actually collect the debts detailed in the promissory notes? The Gemara suggests a proof: Come and hear that which Ulla said in describing the Jewish people after they sinned with the Golden Calf immediately following the revelation at Sinai: Insolent [aluva] is the bride who is promiscuous under her wedding canopy.

Rav Mari, son of Shmuel’s daughter, says: What is the verse from which it is derived? “While the king sat at his table, my spikenard sent forth its fragrance” (Song of Songs 1:12). He understands the verse in the following manner: While the king was still involved in his celebration, i.e., God had just given the Torah, the perfume of the Jewish people gave off an unpleasant odor, i.e., they sinned with the Golden Calf. Rava says: Nevertheless, it is apparent from the verse that the affection of God is still upon us, as it is written euphemistically as “sent forth its fragrance” and the verse is not written: It reeked.

The Gemara continues discussing the meaning of the word ulbena. The Sages taught: Those who are insulted [ne’elavin] but do not insult others, who hear their shame but do not respond, who act out of love and are joyful in their suffering, about them the verse states: “And they that love Him are as the sun going forth in its might” (Judges 5:31).

§ The Gemara asks: What is the meaning of the word prosbol? Rav Ḥisda said: An ordinance [pros] of bulei and butei.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Gittin 36b explores Hillel's prosbol enactment, rabbinic authority over debt cancellation in the Sabbatical Year, and the principle of court-declared ownerless property.