Beit Din and Dayanim: Difference between revisions

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Civil monetary disputes are brought to a court of Jewish law called a '''Bet Din''' (Heb. בית דין; lit. house of law). The laws and procedures of Jewish court are discussed below.
== Semichah and Cases a Beit Din May Judge ==
== 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.<ref>Shulchan Aruch Choshen Moshpat 1</ref> Semichah was transmitted Rebbe to Talmid from Moshe Rabbeinu and on until R' Yehudah Ben Bava.<ref>See Sanhedrin 14a</ref> 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. <ref>Sanhedrin 5b</ref>
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.<ref>Shulchan Aruch Choshen Moshpat 1</ref> Semichah was transmitted Rebbe to Talmid from Moshe Rabbeinu and on until R' Yehudah Ben Bava.<ref>See Sanhedrin 14a</ref> 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.<ref>Sanhedrin 5b</ref>
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. <ref>Shu"t HaRivash Simah 271, cited by SMA Choshen Mishpat 1:9, Eretz HaTzvi pg. 225</ref>
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.<ref>Shu"t HaRivash Simah 271, cited by SMA Choshen Mishpat 1:9, Eretz HaTzvi pg. 225</ref>
# There is a dispute if we collect cases of bor and esh today.<Ref>Shach 1:2 quotes the Maharshal who says that bor and esh nowadays aren't common and can't be collected without semicha. Chidushei Harim CM 1:10 argues. He cites the Shvut Yakov 136 who disagrees and discusses his proofs. Pitchei Teshuva 1:2 understands that Rabbi Akiva Eiger argues with the proof of the Shvut Yakov but agrees with his conclusion. Divrei Shalom 7:1 rules that we judge bor today.</ref>


==Establishing a Bet Din==
==Establishing a Bet Din==
# 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<ref>Gemara Macot 7a, Rambam (Sanhedrin 1:1-2)</ref>, nowadays this mitzvah doesn’t apply since we don’t have judges with ordination from the times of Moshe. <ref>Sama 1:1</ref>
# 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<ref>Gemara Macot 7a, Rambam (Sanhedrin 1:1-2)</ref>, nowadays this mitzvah doesn’t apply since we don’t have judges with ordination from the times of Moshe.<ref>Sama 1:1</ref>
==Cases can Bet Din judge according to the Strict Law==
==Cases can Bet Din judge according to the Strict Law==
# 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. <ref>Gemara b”k 84b, Tur and S”A CM 1:1 </ref>  
# 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.<ref>Gemara b”k 84b, Tur and S”A CM 1:1 </ref>  
## 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. <ref>Tur CM 1:1, Sama CM 1:5</ref>
## No monetary 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.<ref>Tur CM 1:1, Sama CM 1:5</ref>
## Uncommon: If one animal gores another animal bet din can’t enforce a payment since it is uncommon. <ref>Rambam Sanhedrin 5:9, S”A CM 1:1</ref> 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.<ref>S”A CM 1:3 writes that bet din can collect for shen and regel since these are common.</ref>
## Uncommon: If one animal gores another animal bet din can’t enforce a payment since it is uncommon.<ref>Rambam Sanhedrin 5:9, S”A CM 1:1</ref> 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.<ref>S”A CM 1:3 writes that bet din can collect for shen and regel since these are common.</ref>
## 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. <ref>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. </ref> Some argue that bet din can’t judge any payments for bodily injury but can force the damager to appease the victim.<ref>Rama CM 1:2</ref>
## 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.<ref>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. </ref> Some argue that bet din can’t judge any payments for bodily injury but can force the damager to appease the victim.<ref>Rama CM 1:2</ref>
## 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. <ref>Rambam Sanhedrin 5:9, S”A CM 1:1</ref>
## 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.<ref>Rambam Sanhedrin 5:9, S”A CM 1:1</ref>
# Property damages: Bet din can judge on cases of a person who damaged another person’s property and cases of theft.<ref>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.</ref> Bet din can even judge on cases which are indirect damages.<ref>S”A CM 1:4</ref> 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.<ref>Rama 1:3</ref>  
# Property damages: Bet din can judge on cases of a person who damaged another person’s property and cases of theft.<ref>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.</ref> Bet din can even judge on cases which are indirect damages.<ref>S”A CM 1:4</ref> 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.<ref>Rama 1:3</ref>  
# Someone who verbally embarresses his friend is put in excommunication until he appeases his friend. <ref>S”A CM 1:6</ref>
# Someone who verbally embarresses his friend is put in excommunication until he appeases his friend.<ref>S”A CM 1:6</ref>
# Summary: Bet Din can judge cases of loans, admissions of obligation, gifts, inheritance<ref>S”A CM 1:1</ref>, bodily injury<ref>S”A CM 1:2</ref>, property damages, theft<ref>S”A CM 1:3</ref>, conversions, and divorce<ref>Sama 1:3 explains that we judge conversions and divorce even though even aren’t monetary because of their particular importance to Jewish society.</ref>
# Summary: Bet Din can judge cases of loans, admissions of obligation, gifts, inheritance<ref>S”A CM 1:1</ref>, bodily injury<ref>S”A CM 1:2</ref>, property damages, theft<ref>S”A CM 1:3</ref>, conversions, and divorce<ref>Sama 1:3 explains that we judge conversions and divorce even though even aren’t monetary because of their particular importance to Jewish society.</ref>
==Enforcing paymen for Penalties==
 
==Enforcing Payment for Penalties==
# 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.<ref>S”A CM 1:5</ref> As long as the defendant pays close to the amount of the loss bet din will remove the excommunication.<ref>Sama 1:17</ref>
# 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.<ref>S”A CM 1:5</ref> As long as the defendant pays close to the amount of the loss bet din will remove the excommunication.<ref>Sama 1:17</ref>
# Bet Din doesn’t excommunicate a person to pay for a penalty above the actual loss.<ref>Sama 1:18, Shach 1:14</ref>
# Bet Din doesn’t excommunicate a person to pay for a penalty above the actual loss.<ref>Sama 1:18, Shach 1:14</ref>
# A person can grab the penalty that is owed him. <ref>S”A CM 1:5</ref>
# A person can grab the penalty that is owed him.<ref>S”A CM 1:5</ref>
 
==Judging according to compromise==
==Judging according to compromise==
# 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.<ref>Shulchan Aruch CM 12:2</ref> Bet Din can't force someone to go above and beyond the letter of the law and some poskim argue.<ref>Rama CM 12:2</ref>
# 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.<ref>Shulchan Aruch CM 12:2</ref> Bet Din can't force someone to go above and beyond the letter of the law and some poskim argue.<ref>Rama CM 12:2</ref>
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# 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.<ref>Sama 2:10</ref>
# 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.<ref>Sama 2:10</ref>
# Theoretically, bet din has the authority to punish a criminal in any fashion according to the need of the time and place.<ref>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.</ref>
# Theoretically, bet din has the authority to punish a criminal in any fashion according to the need of the time and place.<ref>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.</ref>
# Nonetheless, in America, bet din can’t force people to adhere to religious principles. <ref>Rav Schachter in a [http://www.yutorah.org/lectures/lecture.cfm/832595/Rabbi_Hershel_Schachter/Shiur_#90_-_Kesubos_-_Dina_D'malchusa 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.</ref>
# Nonetheless, in America, bet din can’t force people to adhere to religious principles.<ref>Rav Schachter in a [http://www.yutorah.org/lectures/lecture.cfm/832595/Rabbi_Hershel_Schachter/Shiur_#90_-_Kesubos_-_Dina_D'malchusa 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.</ref>
==Number of Judges Necessary==
==Number of Judges Necessary==
# 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. <ref>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.</ref>
# 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.<ref>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.</ref>
# If none of the judges are knowledgable, the bet din doesn’t function unless they are the communally accepted bet din.<ref>Shach 3:3</ref>
# If none of the judges are knowledgable, the bet din doesn’t function unless they are the communally accepted bet din.<ref>Shach 3:3</ref>
# Even though theoretically one expert judge can judge cases without any other judges, nowadays we don’t have an expert judge of that caliber.<ref> S”A and Rama 3:2</ref> 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.<ref>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.</ref>
# Even though theoretically one expert judge can judge cases without any other judges, nowadays we don’t have an expert judge of that caliber.<ref> S”A and Rama 3:2</ref> 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.<ref>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.</ref>
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==Vigilante Action==
==Taking Justice into Your Own Hands==
# 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.<ref>Rav Nachman in Bava Kama 27b, Shulchan Aruch Choshen Mishpat 4:1 with Rama</ref>
'''Please note that the laws below are NOT to be followed without consulting an expert rabbinic authority.'''
# 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 loss, 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.<ref>Rav Nachman in Bava Kama 27b, Shulchan Aruch Choshen Mishpat 4:1 with Rama</ref>
# If there’s no concern of loss, it is forbidden to hit him.<ref>Netivot Mishpat 4:1, Lechem Mishna (Avadim 3:5)</ref>
# If there’s no concern of loss, it is forbidden to hit him.<ref>Netivot Mishpat 4:1, Lechem Mishna (Avadim 3:5)</ref>
===Withholding Wages Due to Theft===
====Background====
<p class="indent">One time Rav Huna had many barrels of wine that soured. He asked his colleagues to help him introspect. They concluded that it was a punishment for his withholding wages from his field workers. Rav Huna explained that he Rav Huna his workers stole his grape vines and so he couldn’t pay them properly. The rabbis rebuked Rav Huna that nonetheless, if you steal from a thief you’ll be drawn after theft, and Rav Huna repented and corrected his ways. Immediately, the price of vinegar increased so that his barrels of vinegar were worth more than wine or that the soured wine turned back into wine. That implies that it is forbidden to withhold wages when suspecting a worker of stealing. (Brachot 5b)</p>
<p class="indent">Several rishonim and achronim ask why Rav Huna wasn’t justified considering that he was just covering his loss. Indeed, there is a concept in Bava Kama 27b of ''Avid Inish Dina Lnafshey'' (Heb. עביד אניש דיניה לנפשיה; lit. a person can make a judgement for himself) a person can serve justice. The only dispute is whether it is applicable only if there is a loss or even if there’s no loss but it is desirable to serve justice immediately instead of having to resort to the cumbersome judicial process. Rav Yehuda held that it is only permitted if there’s irrecoverable loss, while Rav Nachman allows whether or not there is a loss, since a person would prefer to deal with the issue without having to go to Bet Din. The halacha follows Rav Nachman.</p>
To address the story with Rav Huna in Gemara Brachot,
#Some say that really Rav Huna was permitted to withhold wages but was punished and rebuked because of his righteous status and should not have been involved with seemingly scandalous behavior even if it was justified. However, most rishonim and achronim reject this theory.<Ref> Yabia Omer CM 6:1:3 cites this approach from Shoel Umishiv 1:371 but rejects it.</ref>
#Ravyah (Brachot n. 8)<ref> Maharash YD 9 s.v. vli in his first answer agrees.</ref> suggests that the flaw with Rav Huna’s action was that it was done clandestinely. If he would have confronted the workers about their theft and told them that he wasn’t going to withhold wages as compensation that would be acceptable. This idea is supported by the statement of Ben Bag Bag (Bava Kama 28a) that a person shouldn’t slyly steal back an item that was stolen from him, rather he should take them publicly and explain his actions to the thief directly. The only practical issue with this approach is that if the thief is a tough or dangerous individual, confronting him to steal back your item is nearly impossible. In that case, many poskim hold that it is not necessary to confront the thief directly and it is permitted to hold onto his money secretly.<ref> The Riaz (Brachot 1:2:6) seems to agree as he says that usually it is forbidden to take justice into your own hands and if a worker stole you can't withhold wages. However, if the worker is tough and it would be impossible to get his money back (through Bet Din) he could act with stealth. He implies that in such a case it would be permitted to withhold wages.
</ref>
#Perhaps Rav Huna withheld their entire wage when in fact they only stole a small amount. This is implied by the Bet Yosef (CM 369:8) who writes that if a tax collector is entitled to collect some taxes but corruptly collects more it is forbidden to not pay the amount due. His proof is the story with Rav Huna as well as the rishonim (Rosh Nedarim 4:10 and Ran Nedarim 28a) that it is forbidden to evade paying a tax collector.
#According to the Yereyim (ch. 132 as understood by Mordechai Bava Kama 3:30), a debt created as a result of a theft is forbidden to be recovered outside Bet Din. A proof is this story with Rav Huna.
#Rav Kolunimus and the Maharam (Mordechai Bava Kama 3:30, cited by Bet Yosef 4:1) answer that it was forbidden for Rav Huna to withhold wages because it is only forbidden to steal back the item that was stolen from you but not to take another item in its place.
#One approach is that Rav Huna had suspicions about the workers stealing but it wasn’t verified sufficiently and therefore, it was improper to withhold wages.<ref> Maharash YD 9 s.v. vli in his second answer, Meromei Sadeh Brachot 5b, Kesef Kedoshim CM 4</ref>
====Halacha====
#In conclusion, before we take justice into our own hands, many conditions need to be met. Holding onto someone else’s money that was given to you in a permitted manner, can be kept under three conditions:<ref>Rav Poalim CM 3:5</ref>
##You know the exact amount that was stolen from you and you only take that amount and not more. Some say that this condition requires that it be provable in bet din.<ref>Piskei Din Yerushalayim (Dinei Mamonot Ubirurei Yahadut v. 6 Psak Din starting p. 159) comments that even the Rav Poalim would agree that you can't withhold wages if it couldn't be ascertained with two witnesses the theft. The case they judged involved a principle and board, where the board withheld wages from the principal because he was overpaying a certain teacher. The principal explained that the teacher was paid double because he was a specialist and he was appointed to hire teachers. The board claims that they never agreed with that appointment and the extra salary should come out of the principal's wages. The Bet Din ruled that the board must pay the principal his full wages and withholding is forbidden since their claims couldn't be substantiated with two witnesses.</ref>
##The person stole money from you and you’re withholding money from him. However, if he stole an object it is forbidden to steal back from him anything besides the exact item.
##A person should confront the thief to explain to him why you’re withholding his money. However, if the thief is a tough individual and wouldn’t listen if brought to Bet Din, this condition isn’t necessary.
===Stealing Back===
#It is forbidden to steal something that was stolen from you unless you have a proof that is acceptable in Bet Din such as two kosher witnesses who saw the theft.<ref>Rosh Bava Kama 3:3, Shulchan Aruch CM 4:1</ref>
#Additionally, Ashkenazim hold that one can only steal back the item that was stolen and not something else as compensation.<ref>Mordechai Bava Kama 30, Rama 4:1</ref>
===Taking a Collateral for a Loan===
#It is forbidden to grab an item as collateral even in order to recover a loss. A collateral can only be procured through the agency of the Bet Din. Even though there is a minority opinion that allowed it in order to recover a loss, that opinion was summarily rejected by the poskim, whether or not the creditor is a talmid chacham or not.<Ref>The Maharash YD 9 s.v. vivra suggests that for a talmid chacham it is permitted to grab a collateral based on the Gemara Moed Katan 17a which grants permission to a talmid chacham to serve justice for himself. In the Maharash’s understanding the Gemara is giving the talmid chacham further rights than everyone else is already granted by Bava Kama 27b. However, his suggestion is at odds with the Nemukei Yosef Bava Kama 9a s.v. bmilta who says that a talmid chacham is bound by the same rules as everyone else. The only reason the gemara needs to permit even minimal justified actions because a talmid chacham always needs to strive to be pleasant and on good terms with other people. Yabia Omer CM 6:1:5 completely rejects the Maharash's idea. Pitchei Teshuva CM 4:1 quotes many who forbid this as well.</ref>


==Ordering of Cases==
==Ordering of Cases==
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==Edim==
==Edim==
# 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. <ref>Shulchan Aruch CM 32:1</ref>
see [[Kosher Witnesses]]
# 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.<ref>Bava Kama 55b, Shulchan Aruch CM 32:2</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===
[[Image:Relatives.png|right|250px]]
# The following relationships are considered first order relationships (rishon b'rishon):
## A sibling with another sibling, maternally or paternally or both
## A parent and a child<ref>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.</ref>
## A husband and wife
# The following relationships are considered relationships between someone of one generation with someone one generation apart (rishon b'sheni):
## A descendant of a sibling
## A grandchild<ref>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.</ref>
# The following relationships are considered second order relationships (sheni b'sheni):
## First cousins
# The following relationships are considered relationships between someone of one generation with someone two generations apart (rishon b'shelishi):
## A great grandchild<ref>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.</ref>
## A grandchild of sibling
# The following relationships are considered relationships between someone of a second generation with someone one generation apart (sheni b'shelishi):
## A cousin to a descendant of a cousin i.e. first cousin once removed<ref>Rabbi Abba in Bava Batra 128a states that a sheni b'shelishi is permitted. This is codified by Shulchan Aruch CM 33:2</ref>
# The following relationships are considered second order relationships (shelishi b'shelishi):
## Second cousins
# 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<ref>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. </ref>, and the sixth category certainly isn't a relative. <ref>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.</ref>
# 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.<ref>Shulchan Aruch CM 33:2</ref>
# 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.<ref>Gemara Sanhedrin 28b, Shulchan Aruch CM 33:3</ref> 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.<ref>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.</ref>
# The first two categories are disqualified even if it involves going through two marriages.<ref>Shulchan Aruch CM 33:4</ref> Some say that the second category is permitted if it goes through two marriages.<ref>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.</ref> The third category is permitted if it goes through two marriages.<ref>Shulchan Aruch CM 33:4</ref> Initially this should be avoided for witnesses signing a document.<ref>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.</ref>
## For example, men who are married to woman who are first cousins (sheni b'sheni) are permitted to testify together.<ref>Shulchan Aruch CM 33:4</ref>
## 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).<ref>Shulchan Aruch CM 33:4</ref>
## 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).<ref>Shulchan Aruch CM 33:4</ref>
## 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. <ref>Shulchan Aruch CM 33:4</ref>
# 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. <ref>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.</ref>
## For example, one's half-brother's half-brother isn't a relative for testimony. <ref>Rav Chisda in Sanhedrin 28b, Shulchan Aruch CM 33:7</ref>
## Another example is the father of man and a father of a woman whose children are married (mechutanim) and aren't considered relatives.<ref>Shulchan Aruch CM 33:6</ref>
# 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. <ref>Shulchan Aruch CM 33:8</ref> There is a dispute about one's wife's grandparents is they are considered relatives for testimony. <ref>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.</ref>
# A person may not testify about his wife once they are halachically engaged but he still may testify about her relatives.<ref>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.</ref> 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.<ref>Rama CM 33:9</ref>


==Related Pages==
==Related Pages==
* [[Secular Court]]
* [[Secular Court]]
* [[Dina D'Malchusa Dina]]
* [[Dina D'Malchusa Dina]]
==Sources==
<References/>


==External Links==
==External Links==
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* [http://www.badatzqueens.org/ Badatz Mekor Chaim, Queens (HaRav Eliyahu Ben Chaim)]
* [http://www.badatzqueens.org/ Badatz Mekor Chaim, Queens (HaRav Eliyahu Ben Chaim)]
* [http://www.businesshalacha.com/en/page/arbitration Business Halacha Beis Din]
* [http://www.businesshalacha.com/en/page/arbitration Business Halacha Beis Din]
==Sources==
<References/>

Latest revision as of 18:19, 10 November 2021

Civil monetary disputes are brought to a court of Jewish law called a Bet Din (Heb. בית דין; lit. house of law). The laws and procedures of Jewish court are discussed below.

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]

  1. There is a dispute if we collect cases of bor and esh today.[5]

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[6], nowadays this mitzvah doesn’t apply since we don’t have judges with ordination from the times of Moshe.[7]

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.[8]
    1. No monetary 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.[9]
    2. Uncommon: If one animal gores another animal bet din can’t enforce a payment since it is uncommon.[10] 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.[11]
    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.[12] Some argue that bet din can’t judge any payments for bodily injury but can force the damager to appease the victim.[13]
    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.[14]
  2. Property damages: Bet din can judge on cases of a person who damaged another person’s property and cases of theft.[15] Bet din can even judge on cases which are indirect damages.[16] 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.[17]
  3. Someone who verbally embarresses his friend is put in excommunication until he appeases his friend.[18]
  4. Summary: Bet Din can judge cases of loans, admissions of obligation, gifts, inheritance[19], bodily injury[20], property damages, theft[21], conversions, and divorce[22]

Enforcing Payment 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.[23] As long as the defendant pays close to the amount of the loss bet din will remove the excommunication.[24]
  2. Bet Din doesn’t excommunicate a person to pay for a penalty above the actual loss.[25]
  3. A person can grab the penalty that is owed him.[26]

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.[27] Bet Din can't force someone to go above and beyond the letter of the law and some poskim argue.[28]

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.[29]
  2. Theoretically, bet din has the authority to punish a criminal in any fashion according to the need of the time and place.[30]
  3. Nonetheless, in America, bet din can’t force people to adhere to religious principles.[31]

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.[32]
  2. If none of the judges are knowledgable, the bet din doesn’t function unless they are the communally accepted bet din.[33]
  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.[34] 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.[35]
  4. The more judges on a bet din the better, though, the judges need to be fit to be judges.[36]


Taking Justice into Your Own Hands

Please note that the laws below are NOT to be followed without consulting an expert rabbinic authority.

  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 loss, 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.[37]
  2. If there’s no concern of loss, it is forbidden to hit him.[38]

Withholding Wages Due to Theft

Background

One time Rav Huna had many barrels of wine that soured. He asked his colleagues to help him introspect. They concluded that it was a punishment for his withholding wages from his field workers. Rav Huna explained that he Rav Huna his workers stole his grape vines and so he couldn’t pay them properly. The rabbis rebuked Rav Huna that nonetheless, if you steal from a thief you’ll be drawn after theft, and Rav Huna repented and corrected his ways. Immediately, the price of vinegar increased so that his barrels of vinegar were worth more than wine or that the soured wine turned back into wine. That implies that it is forbidden to withhold wages when suspecting a worker of stealing. (Brachot 5b)

Several rishonim and achronim ask why Rav Huna wasn’t justified considering that he was just covering his loss. Indeed, there is a concept in Bava Kama 27b of Avid Inish Dina Lnafshey (Heb. עביד אניש דיניה לנפשיה; lit. a person can make a judgement for himself) a person can serve justice. The only dispute is whether it is applicable only if there is a loss or even if there’s no loss but it is desirable to serve justice immediately instead of having to resort to the cumbersome judicial process. Rav Yehuda held that it is only permitted if there’s irrecoverable loss, while Rav Nachman allows whether or not there is a loss, since a person would prefer to deal with the issue without having to go to Bet Din. The halacha follows Rav Nachman.

To address the story with Rav Huna in Gemara Brachot,

  1. Some say that really Rav Huna was permitted to withhold wages but was punished and rebuked because of his righteous status and should not have been involved with seemingly scandalous behavior even if it was justified. However, most rishonim and achronim reject this theory.[39]
  2. Ravyah (Brachot n. 8)[40] suggests that the flaw with Rav Huna’s action was that it was done clandestinely. If he would have confronted the workers about their theft and told them that he wasn’t going to withhold wages as compensation that would be acceptable. This idea is supported by the statement of Ben Bag Bag (Bava Kama 28a) that a person shouldn’t slyly steal back an item that was stolen from him, rather he should take them publicly and explain his actions to the thief directly. The only practical issue with this approach is that if the thief is a tough or dangerous individual, confronting him to steal back your item is nearly impossible. In that case, many poskim hold that it is not necessary to confront the thief directly and it is permitted to hold onto his money secretly.[41]
  3. Perhaps Rav Huna withheld their entire wage when in fact they only stole a small amount. This is implied by the Bet Yosef (CM 369:8) who writes that if a tax collector is entitled to collect some taxes but corruptly collects more it is forbidden to not pay the amount due. His proof is the story with Rav Huna as well as the rishonim (Rosh Nedarim 4:10 and Ran Nedarim 28a) that it is forbidden to evade paying a tax collector.
  4. According to the Yereyim (ch. 132 as understood by Mordechai Bava Kama 3:30), a debt created as a result of a theft is forbidden to be recovered outside Bet Din. A proof is this story with Rav Huna.
  5. Rav Kolunimus and the Maharam (Mordechai Bava Kama 3:30, cited by Bet Yosef 4:1) answer that it was forbidden for Rav Huna to withhold wages because it is only forbidden to steal back the item that was stolen from you but not to take another item in its place.
  6. One approach is that Rav Huna had suspicions about the workers stealing but it wasn’t verified sufficiently and therefore, it was improper to withhold wages.[42]

Halacha

  1. In conclusion, before we take justice into our own hands, many conditions need to be met. Holding onto someone else’s money that was given to you in a permitted manner, can be kept under three conditions:[43]
    1. You know the exact amount that was stolen from you and you only take that amount and not more. Some say that this condition requires that it be provable in bet din.[44]
    2. The person stole money from you and you’re withholding money from him. However, if he stole an object it is forbidden to steal back from him anything besides the exact item.
    3. A person should confront the thief to explain to him why you’re withholding his money. However, if the thief is a tough individual and wouldn’t listen if brought to Bet Din, this condition isn’t necessary.

Stealing Back

  1. It is forbidden to steal something that was stolen from you unless you have a proof that is acceptable in Bet Din such as two kosher witnesses who saw the theft.[45]
  2. Additionally, Ashkenazim hold that one can only steal back the item that was stolen and not something else as compensation.[46]

Taking a Collateral for a Loan

  1. It is forbidden to grab an item as collateral even in order to recover a loss. A collateral can only be procured through the agency of the Bet Din. Even though there is a minority opinion that allowed it in order to recover a loss, that opinion was summarily rejected by the poskim, whether or not the creditor is a talmid chacham or not.[47]

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.[48]
  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.[49]
  3. If there’s a case that involves marital strife and monetary cases, the case of marital strife takes precedence.[50]
  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.[51]

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.[52]

Edim

see Kosher Witnesses

Related Pages

External Links

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. ↑ Shach 1:2 quotes the Maharshal who says that bor and esh nowadays aren't common and can't be collected without semicha. Chidushei Harim CM 1:10 argues. He cites the Shvut Yakov 136 who disagrees and discusses his proofs. Pitchei Teshuva 1:2 understands that Rabbi Akiva Eiger argues with the proof of the Shvut Yakov but agrees with his conclusion. Divrei Shalom 7:1 rules that we judge bor today.
  6. ↑ Gemara Macot 7a, Rambam (Sanhedrin 1:1-2)
  7. ↑ Sama 1:1
  8. ↑ Gemara b”k 84b, Tur and S”A CM 1:1
  9. ↑ Tur CM 1:1, Sama CM 1:5
  10. ↑ Rambam Sanhedrin 5:9, S”A CM 1:1
  11. ↑ S”A CM 1:3 writes that bet din can collect for shen and regel since these are common.
  12. ↑ 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.
  13. ↑ Rama CM 1:2
  14. ↑ Rambam Sanhedrin 5:9, S”A CM 1:1
  15. ↑ 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.
  16. ↑ S”A CM 1:4
  17. ↑ Rama 1:3
  18. ↑ S”A CM 1:6
  19. ↑ S”A CM 1:1
  20. ↑ S”A CM 1:2
  21. ↑ S”A CM 1:3
  22. ↑ Sama 1:3 explains that we judge conversions and divorce even though even aren’t monetary because of their particular importance to Jewish society.
  23. ↑ S”A CM 1:5
  24. ↑ Sama 1:17
  25. ↑ Sama 1:18, Shach 1:14
  26. ↑ S”A CM 1:5
  27. ↑ Shulchan Aruch CM 12:2
  28. ↑ Rama CM 12:2
  29. ↑ Sama 2:10
  30. ↑ 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.
  31. ↑ 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.
  32. ↑ 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.
  33. ↑ Shach 3:3
  34. ↑ S”A and Rama 3:2
  35. ↑ 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.
  36. ↑ S”A CM 3:4
  37. ↑ Rav Nachman in Bava Kama 27b, Shulchan Aruch Choshen Mishpat 4:1 with Rama
  38. ↑ Netivot Mishpat 4:1, Lechem Mishna (Avadim 3:5)
  39. ↑ Yabia Omer CM 6:1:3 cites this approach from Shoel Umishiv 1:371 but rejects it.
  40. ↑ Maharash YD 9 s.v. vli in his first answer agrees.
  41. ↑ The Riaz (Brachot 1:2:6) seems to agree as he says that usually it is forbidden to take justice into your own hands and if a worker stole you can't withhold wages. However, if the worker is tough and it would be impossible to get his money back (through Bet Din) he could act with stealth. He implies that in such a case it would be permitted to withhold wages.
  42. ↑ Maharash YD 9 s.v. vli in his second answer, Meromei Sadeh Brachot 5b, Kesef Kedoshim CM 4
  43. ↑ Rav Poalim CM 3:5
  44. ↑ Piskei Din Yerushalayim (Dinei Mamonot Ubirurei Yahadut v. 6 Psak Din starting p. 159) comments that even the Rav Poalim would agree that you can't withhold wages if it couldn't be ascertained with two witnesses the theft. The case they judged involved a principle and board, where the board withheld wages from the principal because he was overpaying a certain teacher. The principal explained that the teacher was paid double because he was a specialist and he was appointed to hire teachers. The board claims that they never agreed with that appointment and the extra salary should come out of the principal's wages. The Bet Din ruled that the board must pay the principal his full wages and withholding is forbidden since their claims couldn't be substantiated with two witnesses.
  45. ↑ Rosh Bava Kama 3:3, Shulchan Aruch CM 4:1
  46. ↑ Mordechai Bava Kama 30, Rama 4:1
  47. ↑ The Maharash YD 9 s.v. vivra suggests that for a talmid chacham it is permitted to grab a collateral based on the Gemara Moed Katan 17a which grants permission to a talmid chacham to serve justice for himself. In the Maharash’s understanding the Gemara is giving the talmid chacham further rights than everyone else is already granted by Bava Kama 27b. However, his suggestion is at odds with the Nemukei Yosef Bava Kama 9a s.v. bmilta who says that a talmid chacham is bound by the same rules as everyone else. The only reason the gemara needs to permit even minimal justified actions because a talmid chacham always needs to strive to be pleasant and on good terms with other people. Yabia Omer CM 6:1:5 completely rejects the Maharash's idea. Pitchei Teshuva CM 4:1 quotes many who forbid this as well.
  48. ↑ 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.
  49. ↑ 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.
  50. ↑ Kesef Kedoshim CM 15:1 based on Bamidbar 32:24
  51. ↑ 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.
  52. ↑ 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.
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