Beit Din and Dayanim: Difference between revisions
From Halachipedia
m
→Enforcing paymen for Penalties
| (2 intermediate revisions by the same user not shown) | |||
| Line 1: | Line 1: | ||
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> | ||
| Line 16: | Line 17: | ||
# 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> | ||
| Line 35: | Line 37: | ||
==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> | ||
| Line 83: | Line 86: | ||
* [[Secular Court]] | * [[Secular Court]] | ||
* [[Dina D'Malchusa Dina]] | * [[Dina D'Malchusa Dina]] | ||
==External Links== | ==External Links== | ||
| Line 93: | Line 93: | ||
* [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/> | |||
