Beit Din and Dayanim: Difference between revisions
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== 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> | # 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 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> | ||
## 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 paymen 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> | ||
