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> | ||
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# 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 | ==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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== | ==Taking Justice into Your Own Hands== | ||
'''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> | # 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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* [[Secular Court]] | * [[Secular Court]] | ||
* [[Dina D'Malchusa Dina]] | * [[Dina D'Malchusa Dina]] | ||
==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/> | |||
