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== | ==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> | ||
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===Withholding Wages Due to Theft=== | ===Withholding Wages Due to Theft=== | ||
====Background==== | ====Background==== | ||
<p>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">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>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> | <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, | 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> | #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> | ||
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#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. | #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> | #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==== | ====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> | #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> | ||
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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/> | |||
