Beit Din and Dayanim: Difference between revisions

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# Anyone who is invalid to be a judge is also invalid to be a witness except someone who loves or hates the litigant, who is invalid as a judge but valid as a witness.<ref>The gemara Sanhedrin 29a states that even according to the rabbanan who say that someone who loves or hates a litigant is valid as a witness is invalid as a judge and learn it from a pasuk. Shulchan Aruch CM 33:1 rule like the rabbanan. The Sama 33:1 explains that whereas for testimony we assume that someone who loves or hates the litigant won't lie in court and alter the facts he witnessed, the role of a judge involves much more subjective assessments which could be easily biased. </ref>
# Anyone who is invalid to be a judge is also invalid to be a witness except someone who loves or hates the litigant, who is invalid as a judge but valid as a witness.<ref>The gemara Sanhedrin 29a states that even according to the rabbanan who say that someone who loves or hates a litigant is valid as a witness is invalid as a judge and learn it from a pasuk. Shulchan Aruch CM 33:1 rule like the rabbanan. The Sama 33:1 explains that whereas for testimony we assume that someone who loves or hates the litigant won't lie in court and alter the facts he witnessed, the role of a judge involves much more subjective assessments which could be easily biased. </ref>
===Relatives===
===Relatives===
[[Image:Relatives.png|right|250px]]
[[Image:Relatives.png|right|450px]]
# The following relationships are considered first order relationships (rishon b'rishon):  
# The following relationships are considered first order relationships (rishon b'rishon):  
## A sibling with another sibling, maternally or paternally or both
## A sibling with another sibling, maternally or paternally or both

Revision as of 14:58, 25 August 2016

Semichah and Cases a Beit Din May Judge

Up until the times of the Tannaim and Amoraim, Dayanim could be granted Semichah as a certification to judge cases involving Kenas, such as Chatzi Nezek and Kefel.[1] Semichah was transmitted Rebbe to Talmid from Moshe Rabbeinu and on until R' Yehudah Ben Bava.[2] There was an additional license to judge known as Reshut, granted by the Nasi in Eretz Yisrael and the Resh Galuta in Bavel. Reshut enabled a Dayan was license bring litigants to court against their will, and it also served as insurance, exempting judges who who erred in their rulings from reimbursing the losing party. [3] What we colloquially refer to as "Semichah" nowadays is, in fact, neither of these, but, rather, "Hetter Hora'ah Bifnei Rabo." That is to say, that even if one arrives at the level of Mumcheh, he still may not voice a Halachic opinion within a certain proximity of his Rav Muvhak. Only when his rebbe grants him Semichah may he pasken regularly. [4]

Establishing a Bet Din

  1. Even though according to Torah law there is a mitzvah to establish a Jewish court system in every county and in Israel in every town[5], nowadays this mitzvah doesn’t apply since we don’t have judges with ordination from the times of Moshe. [6]

Cases can Bet Din judge according to the Strict Law

  1. Nowadays the Bet Din, or Jewish court, can’t judge according to the regular monetary laws in cases where (1) there is no monetary loss, (2) are uncommon, (3) involve the primary payment for bodily injuries due to bodily damages, or (4) are a penalty disproportionate with the value of the damage. [7]
    1. No mentary loss: If a person hits his friends and embarrassed him bet din can’t enforce a payment since there’s no monetary loss to the victim. [8]
    2. Uncommon: If one animal gores another animal bet din can’t enforce a payment since it is uncommon. [9] Yet, if an animal damages in a common way either by consumption of property or by its movement or walking, bet din can collect a payment.[10]
    3. Bodily Injuries due to bodily damages: If a person hits his friend the bet din can’t enforce any payment for the primary payment for the bodily injury, embarrassment, and payment for pain, but bet din can enforce payment for medical bills and compensation for work loss. [11] Some argue that bet din can’t judge any payments for bodily injury but can force the damager to appease the victim.[12]
    4. Penalties: If a person steals from his friend and is caught with the item, according to Torah law he needs to pay double, however, bet din can’t enforce his payment today. [13]
  2. Property damages: Bet din can judge on cases of a person who damaged another person’s property and cases of theft.[14] Bet din can even judge on cases which are indirect damages.[15] Some say that bet din can’t judge cases of outright theft but bet din can judge cases where a person denied returning money deposited by him or the like.[16]
  3. Someone who verbally embarresses his friend is put in excommunication until he appeases his friend. [17]
  4. Summary: Bet Din can judge cases of loans, admissions of obligation, gifts, inheritance[18], bodily injury[19], property damages, theft[20], conversions, and divorce[21]

Enforcing paymen for Penalties

  1. Even payments which bet din can’t judge today, according to the rules set above, bet din can force a defendant to appease his plaintiff and if he doesn’t do so they can excommunicate the defendant.[22] As long as the defendant pays close to the amount of the loss bet din will remove the excommunication.[23]
  2. Bet Din doesn’t excommunicate a person to pay for a penalty above the actual loss.[24]
  3. A person can grab the penalty that is owed him. [25]

Judging according to compromise

  1. It is a mitzvah upon the judge to open up the case by asking the litigants if they want to have an arbitration based on compromise (peshara) or a regular legal case. The court which uses arbitration more often is praiseworthy.[26] Bet Din can't force someone to go above and beyond the letter of the law and some poskim argue.[27]

Power of Bet Din

  1. The bet din of each community has the authority to establish practices for its community just like the geonim had an authority to establish practices for all Jews.[28]
  2. Theoretically, bet din has the authority to punish a criminal in any fashion according to the need of the time and place.[29]
  3. Nonetheless, in America, bet din can’t force people to adhere to religious principles. [30]

Number of Judges Necessary

  1. A bet din can’t function with less than 3 judges. These 3 judges can be any 3 people even if they’re not knowledgeable as long as one of them is familiar with the laws of judging. [31]
  2. If none of the judges are knowledgable, the bet din doesn’t function unless they are the communally accepted bet din.[32]
  3. Even though theoretically one expert judge can judge cases without any other judges, nowadays we don’t have an expert judge of that caliber.[33] However, if the one expert judge was accepted by the disputants and the case is simple, he can judge the case, otherwise an individual judge should not judge alone.[34]
  4. The more judges on a bet din the better, though, the judges need to be fit to be judges.[35]


Vigilante Action

  1. A person who finds that his friend stole from him can retrieve his property even if that means that he’ll have to hit him as long as he can’t do something else. Even if there’s no immediate lose, even if he would wait until the case would go to court, he is allowed to retrieve his property. This is on condition he is able to prove in court that he is deserving of the money he is grabbing.[36]
  2. If there’s no concern of loss, it is forbidden to hit him.[37]

Ordering of Cases

  1. A bet din should judge that come before him in the order that he received them, irrelevant of the amount involved in each case.[38]
  2. Some say that it is permitted to rearrange the order of the cases if the earlier case is complex and will take a long time and a later case is quick and easy.[39]
  3. If there’s a case that involves marital strife and monetary cases, the case of marital strife takes precedence.[40]
  4. The case of a talmid chacham takes precedence over other cases out of honor for the talmid chacham and in order to prevent him from learning.[41]

Binding Agreements

  1. If the defendant says that if I doesn’t come on a certain day to swear and be exonerated then you the plaintiff will be believed to take his money with an oath that is a binding agreement if the plaintiff receives a kinyan from the defendant on this matter. The same is true if the plaintiff says that if I don’t come by a certain day to swear and collect then you, the defendant, are exempt.
  2. However, if the person who made the stipulation can show that there was an unforeseen circumstance preventing him from returning, the stipulation isn’t binding and he can take the oath at a later date.[42]

Edim

  1. The witnesses are called edim and must testify exactly what they heard and not just say someone is obligated to pay his friend because sometimes if the witnesses heard a person admit he owes money in truth he isn't obligated. [43]
  2. If a person hired false witnesses to testify that Reuven owes Shimon money and Reuven was awarded money based on these false edim, if in the truth Reuven didn't owe Shimon, Shimon doesn't admit that he doesn't deserve the money, the edim don't admit to lying, and the one who hired them does admit that he hired them as false witnesses, in the heavenly court he is obligated to pay Reuven for his loss.[44]
  3. Anyone who is invalid to be a judge is also invalid to be a witness except someone who loves or hates the litigant, who is invalid as a judge but valid as a witness.[45]

Relatives

Relatives.png
  1. The following relationships are considered first order relationships (rishon b'rishon):
    1. A sibling with another sibling, maternally or paternally or both
    2. A parent and a child[46]
    3. A husband and wife
  2. The following relationships are considered relationships between someone of one generation with someone one generation apart (rishon b'sheni):
    1. A descendant of a sibling
    2. A grandchild[47]
  3. The following relationships are considered second order relationships (sheni b'sheni):
    1. First cousins
  4. The following relationships are considered relationships between someone of one generation with someone two generations apart (rishon b'shelishi):
    1. A great grandchild[48]
    2. A grandchild of sibling
  5. The following relationships are considered relationships between someone of a second generation with someone one generation apart (sheni b'shelishi):
    1. A cousin to a descendant of a cousin i.e. first cousin once removed[49]
  6. The following relationships are considered second order relationships (shelishi b'shelishi):
    1. Second cousins
  7. The halacha is that the first four categories described above are relatives and may not testify together. There is a dispute if the fifth category is considered a relative, Sephardim holding it isn't and Ashkenazim holding it is[50], and the sixth category certainly isn't a relative. [51]
  8. Therefore, a father and child, brother and sibling, husband and wife, uncle and nephew, grandfather and grandchild, and first cousin are all relatives who may not testify about one another.[52]
  9. Anyone who is disqualified to testify about a man is also disqualified to testify about his wife. Inversely, anyone who is disqualified to testify against a woman is also disqualified to testify against her husband.[53] However, regarding the relationships between someone of one generation with someone two generations apart (rishon b'shelishi) if the person is only a relative through marriage he is fit to testify against him.[54]
  10. The first two categories are disqualified even if it involves going through two marriages.[55] Some say that the second category is permitted if it goes through two marriages.[56] The third category is permitted if it goes through two marriages.[57] Initially this should be avoided for witnesses signing a document.[58]
    1. For example, men who are married to woman who are first cousins (sheni b'sheni) are permitted to testify together.[59]
    2. A man is disqualified to testify about his wife's son-in-law from a daughter from another marriage (rishon b'rishon with two baal k'ishto's).[60]
    3. A man may not testify about his wife's sister's husband i.e. brother-in-law (rishon b'rishon with two baal k'ishto's).[61]
    4. A man may not testify about his wife's sister's son-in-law (rishon b'sheni with two baal k'ishto's). However, a person may testify about his wife's sister's husband's son from another marriage. [62]
  11. Anyone who one can't testify against since he is married to a relative is considered a relative but not his relatives. Similarly, any woman married to a relative of oneself is a relative but not her relatives. [63]
    1. For example, one's half-brother's half-brother isn't a relative for testimony. [64]
    2. Another example is the father of man and a father of a woman whose children are married (mechutanim) and aren't considered relatives.[65]
  12. A wife's relatives are one's own. For example, her children or children-in-law from another marriage, her parents or step-parents are all relatives. [66] There is a dispute about one's wife's grandparents is they are considered relatives for testimony. [67]
  13. A person may not testify about his wife once they are halachically engaged but he still may testify about her relatives.[68] However, a person may even testify about his wife to be without any halachic engagement or marriage. Nonetheless, he might be biased if he is testifying about her receiving money.[69]

Related Pages

Sources

  1. ↑ Shulchan Aruch Choshen Moshpat 1
  2. ↑ See Sanhedrin 14a
  3. ↑ Sanhedrin 5b
  4. ↑ Shu"t HaRivash Simah 271, cited by SMA Choshen Mishpat 1:9, Eretz HaTzvi pg. 225
  5. ↑ Gemara Macot 7a, Rambam (Sanhedrin 1:1-2)
  6. ↑ Sama 1:1
  7. ↑ Gemara b”k 84b, Tur and S”A CM 1:1
  8. ↑ Tur CM 1:1, Sama CM 1:5
  9. ↑ Rambam Sanhedrin 5:9, S”A CM 1:1
  10. ↑ S”A CM 1:3 writes that bet din can collect for shen and regel since these are common.
  11. ↑ S”A CM 1:2. Sama 1:12 adds that according to the Rambam medical bills and work loss can be collected even in a uncommon case, such as if one’s hand was cut off, since the category of bodily injuries is common.
  12. ↑ Rama CM 1:2
  13. ↑ Rambam Sanhedrin 5:9, S”A CM 1:1
  14. ↑ S”A CM 1:3. Shach 1:9 explains that S”A and Rambam hold that bet din can judge all cases of theft, unlike the Sama who says bet din can’t judge cases of theft which were a result of combat.
  15. ↑ S”A CM 1:4
  16. ↑ Rama 1:3
  17. ↑ S”A CM 1:6
  18. ↑ S”A CM 1:1
  19. ↑ S”A CM 1:2
  20. ↑ S”A CM 1:3
  21. ↑ Sama 1:3 explains that we judge conversions and divorce even though even aren’t monetary because of their particular importance to Jewish society.
  22. ↑ S”A CM 1:5
  23. ↑ Sama 1:17
  24. ↑ Sama 1:18, Shach 1:14
  25. ↑ S”A CM 1:5
  26. ↑ Shulchan Aruch CM 12:2
  27. ↑ Rama CM 12:2
  28. ↑ Sama 2:10
  29. ↑ Sanhedrin 46a, S”A CM 2:1. Sama 2:1 adds that this applies even outside Israel. Sama 2:3 expands the authority of bet din to cases of an individual criminal, not just where a certain crime plagues the entire community. See Sama 2:6 and Shach 2:6 regarding theoretically administering capital cases today.
  30. ↑ Rav Schachter in a shiur on yutorah explained that since the laws of religious freedom benefit Jews and non-Jews alike, it is applicable upon Jews in the sense that they can’t force other Jews in religious law. He compared it to the ruling of Rav Henkin with respect to rent control being applicable even between a Jewish landowner and a Jewish renter since it is a law that benefits Jews and non-Jews alike.
  31. ↑ S”A and Rama CM 3:1. The Sama 3:1 rules that really biblically even one judge is sufficient, however, the Shach 3:1 and 3:5 argues that biblically 3 judges are necessary.
  32. ↑ Shach 3:3
  33. ↑ S”A and Rama 3:2
  34. ↑ Shach 3:10. S”A 3:3 writes that it is always preferable to have a bet din of 3 judges and not just a single expert judge.
  35. ↑ S”A CM 3:4
  36. ↑ Rav Nachman in Bava Kama 27b, Shulchan Aruch Choshen Mishpat 4:1 with Rama
  37. ↑ Netivot Mishpat 4:1, Lechem Mishna (Avadim 3:5)
  38. ↑ Sanhedrin 8a, Midrash Tanchuma (Mishpatim no. 6), Tur and S”A CM 15:1. Rambam (Sanhedrin 20:10) quotes this halacha of treating each case irrelevant of the amount involved equally in general and with respect to ordering the cases. Maharsha (Sanhedrin 8a s.v. kekatan) adds that one shouldn’t rearrange the order of the cases even though the judge won’t be able to collect his fee for the small case and would collect a fee for the large case.
  39. ↑ Radvaz (Sanhedrin 20:10). Cheshukei Chemed (Sanhedrin 8a s.v. haim) writes based on this Radvaz in a grocery store it is proper to allow a customer who is only buying one simple item to precede someone who is making a large order.
  40. ↑ Kesef Kedoshim CM 15:1 based on Bamidbar 32:24
  41. ↑ The gemara Shevuot 30a says that we do give precedence to a talmid chacham’s case. This is codified by the Tur and S”A CM 15:1. nonetheless, the Sama 15:4 writes that nowadays we don’t have a talmid chacham for this purpose.
  42. ↑ The Rambam Sanhedrin 7:10 writes that if the person who made a stipulation about the oath can’t fulfill his stipulation because of an unforeseen circumstance the stipulation isn’t binding and he can take the oath later. The Hagahot Maimoniyot (Sanhedrin 7:9) and Bet Yosef CM 21:1 cite the Smag (Asin 97) who agrees with the Rambam and proves it from the Yerushalmi. However, the Bach 21:1 argues that the Smag is trying to disprove the Rambam from the Yerushalmi.
    • Indeed, the Yerushalmi Kiddushin 3:2 cites a dispute between Reish Lakish and Rabbi Yochanan about someone who said that wants to perform kiddushin with a woman on condition that he marries her within a year. If an unforeseen circumstance arises and he is unable to fulfill his condition, is his stipulation binding? Rabbi Yochanan says it is and there is no kiddushin, however, Reish Lakish says that it isn’t and she is mekudeshet. Since we pasken like Rabbi Yochanan (Yevamot 30a) this seems to be a proof against the Rambam that the stipulation is binding even if unforeseen circumstances arise. The Shach 21:3 answers for the Rambam and Shulchan Aruch 21:1 that only if the unforeseen circumstance is coming to exempt a person from an obligation we say that it isn’t binding, however, if it is coming to obligate oneself, then the agreement isn’t binding even if there was unforeseen circumstances since an ones can exempt but not create obligations.
    • In any event, there is a proof for the Rambam from the gemara Nedarim 27b as the Shach 21:3 and Biur Hagra 21:1 note.
    • The Sama 21:5 distinguishes between the two cases of the Rambam and says that if there is an unforeseen circumstance the person may still take an oath to exempt himself but not to still be able to collect. However, the Shach 21:4 argues that there is no such distinction in the Rambam.
  43. ↑ Shulchan Aruch CM 32:1
  44. ↑ Bava Kama 55b, Shulchan Aruch CM 32:2
  45. ↑ The gemara Sanhedrin 29a states that even according to the rabbanan who say that someone who loves or hates a litigant is valid as a witness is invalid as a judge and learn it from a pasuk. Shulchan Aruch CM 33:1 rule like the rabbanan. The Sama 33:1 explains that whereas for testimony we assume that someone who loves or hates the litigant won't lie in court and alter the facts he witnessed, the role of a judge involves much more subjective assessments which could be easily biased.
  46. ↑ Rif (Bava Batra 56b) writes that the gemara concludes that we don't follow Mar Bar Rav Ashi because he permitted a grandparent thinking that he was considered rishon b'shelishi but really a father and son is rishon b'rishon and a grandson is rishon b'shelishi, which is permitted. The Rambam (Edut 13:5) agrees. The Tur and Shulchan Aruch 33:2 agree with the definition of the Rif that a parent to child is rishon b'rishon.
  47. ↑ Mar Bar Rav Ashi in Bava Batra 128a permitted a grandfather to testify about a grandchild but the gemara concludes that we do not follow his opinion.
  48. ↑ The Rashbam (Bava Batra s.v. leveyt) learns that once we don't follow Mar Bar Rav Ashi all direct descendants are relatives even a great grandchild and beyond. However, the Tosfot (s.v. leyt) argues as does Shulchan Aruch CM 33:2.
  49. ↑ Rabbi Abba in Bava Batra 128a states that a sheni b'shelishi is permitted. This is codified by Shulchan Aruch CM 33:2
  50. ↑ Rabbenu Tam (Bava Batra 129a s.v. iy) holds that a great grandfather is disqualified from testifying about his great grandson and the Rif (Bava Batra 56b) and Rambam (Edut 13:4) argue that it is permitted. Shulchan Aruch CM 33:2 quotes the Rambam as the primary opinion but also cites Rabbenu Tam and the Rama says that Ashkenazim hold like Rabbenu Tam.
  51. ↑ Shulchan Aruch CM 33:2. The source for relatives being disqualified to testify against one another or together according to Gemara Sanhedrin 27b is the pasuk "לא יומתו אבות על בנים" (Devarim 24:16). The Sama 33:5 infers from the Rama that the disqualification of all relatives is biblical with the exception of someone of one generation with someone two generations apart (shlishi b'rishon). The Rama 33:2 writes that some understood the Rambam to mean that maternal relatives are only rabbinic, however, the Shach 33:1 argues at length with this opinion and says everyone agrees that maternal relatives are biblically disqualified from testimony.
  52. ↑ Shulchan Aruch CM 33:2
  53. ↑ Gemara Sanhedrin 28b, Shulchan Aruch CM 33:3
  54. ↑ Yerushalmi Sanhedrin 3:6 asks whether Moshe Rabbenu would have been able to testify about the wife of pinchas and Rabbi Yochanan answers that it is permitted. From here the Rosh (responsa 57:3) learns that a relative two generations apart through marriage is permitted to testify. Shulchan Aruch 33:3 codifies this for the opinion of Rabbenu Tam.
  55. ↑ Shulchan Aruch CM 33:4
  56. ↑ Rama CM 33:4 writes that we hold like this opinion. The Bear Heitiv 33:4 says that initially this should be avoided for judges.
  57. ↑ Shulchan Aruch CM 33:4
  58. ↑ Trumat HaDeshen 226 and Rama CM 33:4 as we're concerned for a Bet Din who will make a mistake and invalidate these witnesses.
  59. ↑ Shulchan Aruch CM 33:4
  60. ↑ Shulchan Aruch CM 33:4
  61. ↑ Shulchan Aruch CM 33:4
  62. ↑ Shulchan Aruch CM 33:4
  63. ↑ Shulchan Aruch CM 33:5. Bet Yosef 33:5 writes that this rule is learned from the case of a half-brother's half-brother.
  64. ↑ Rav Chisda in Sanhedrin 28b, Shulchan Aruch CM 33:7
  65. ↑ Shulchan Aruch CM 33:6
  66. ↑ Shulchan Aruch CM 33:8
  67. ↑ Sama 33:16 holds that are not relatives. Gra 33:23 agrees. However, the Taz 33:8 argues that they are relatives. See the Darkei Moshe CM 33:7 and Bet Yosef CM 33 s.v. avi chamiv who clearly imply that they hold like the Taz.
  68. ↑ Shulchan Aruch CM 33:9. The Sama 33:17 writes that even testifying about one's engaged wife's relatives is only permitted after the fact.
  69. ↑ Rama CM 33:9

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