Semicha and Sanhedrin Controversies of the 16th and 21st Centuries

This article will be devoted to an explanation of the various halachic underpinnings of the Sanhedrin, including:

  • What are the roles and responsibilities of the Sanhedrin?
  • What exactly is semicha, and why is it such a central factor in the creation of the Sanhedrin?
  • What attempts have been made in the last hundreds of years to reconvene a Sanhedrin and reestablish semicha?

WHAT IS THE SANHEDRIN?

The Sanhedrin, also called the Beis Din Hagadol, is the final authority on all matters of halacha. Their interpretation of Torah she’be’al peh is authoritative.

Any halachic issue that is questionable and disputed by lower batei din is referred to the Beis Din Hagadol for a binding decision.

The Sanhedrin also fulfills several vital political and administrative roles. It appoints the Jewish king, as well as the judges who serve on the courts of the shevatim and the cities. Each shevet and each city was required to have a Beis Din of 23 that the Sanhedrin appoints. Thus, the Sanhedrin is not only the supreme halacha authority, but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” – and, at the same time, the court of final appeal. It has the final say in all matters, both temporal and spiritual.

There are several other halachos that require the participation or agreement of the Sanhedrin, including a decision to wage war and expanding the halachic boundaries of the Beis HaMikdash or of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). (We are permitted to eat many holy items, including certain korbanos and maaser sheni, only in halachic Yerushalayim, which has nothing to do with its current municipal boundaries. Expanding the city requires a special procedure that includes participation of the Sanhedrin.)

In addition, several types of adjudication require the participation of the Sanhedrin, including prosecuting a false prophet, and the law of zakein mamrei, an elder who ruled against the Torah she’be’al peh (both taught in parshas Shoftim), the law of a city that went astray (ir hanidachas), the procedure of the and that of eglah arufah (Rambam, Hilchos Sanhedrin 5:1).

The Sanhedrin is also in charge of supervising the Jewish calendar through the appointing of a specially-designated committee. (In the absence of a Sanhedrin or Beis Din Hagadol, Hillel Hanasi established a permanent calendar over 1500 years ago, so that the calendar can continue to exist even though we no longer have a Sanhedrin.)

WHERE AND WHEN DOES THE SANHEDRIN MEET?

The Sanhedrin was open daily in its main headquarters inside the Beis HaMikdash, called the lishkas hagazis. When they are involved in litigation, the entire Sanhedrin, consisting of 71 members,is present. When not in session, there must still always be 23 members of the Sanhedrin in the lishkah.

WHO QUALIFIES TO BE IN THE SANHEDRIN?

There are many technical requirements that all members must meet, but as a basic requirement they must all be superior talmidei chachamim and yirei shamayim (G-d fearing individuals). In addition, all members of the Sanhedrin — and indeed, of all the lower courts — must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law.

DOESN’T EVERY RABBI HAVE SEMICHA?

There are several levels of semicha. The most basic semicha, called yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha, called yodin yodin, authorizes its recipient to rule as a dayan on financial matters. A still higher level, no longer obtainable today, is called yatir bechoros, which authorizes its recipient to rule on whether a first-born animal is blemished and therefore inappropriate to offer as a korban (see Sanhedrin 5a). This semicha permits the firstborn animal to be slaughtered and eaten.

There was also a qualitatively different type of semicha that could be obtained from the time of Moshe Rabbeinu until the time of the Gemara. This semicha authorized the recipient to rule on capital and corporal cases (chayavei misas Beis Din and malkus) and to judge kenasos, penalties set by the Torah. Only a Beis Din consisting exclusively of dayanim ordained with this semicha may judge whether a person receives lashes or the death penalty for his actions.

In earlier days, each city and shevet had its own Beis Din of 23 judges, all of whom were possessors of the highest level of semicha. In addition, all 71 members of the Sanhedrin must have this form of semicha.

HOW MANY DAYANIM GIVE OUT SEMICHA?

A single judge who is himself a musmach may grant semicha to as many qualified people as he chooses, although the grantor must be accompanied by two other people, who need not be musmachim themselves. Dovid HaMelech (himself an expert judge and tremendous talmid chacham) once granted 30,000 semichos in one day (Rambam, Hilchos Sanhedrin, 4:7)!! Semicha that was granted to someone who is not an expert in all areas of halacha is not valid (Meiri, Sanhedrin 14a).

This special semicha must be issued within Eretz Yisroel. Thus, even if a talmid chacham is highly qualified, he may not receive semicha unless the grantor of the semicha and the recipient are both in Eretz Yisroel (Sanhedrin 14a). For this reason, most of the Amora’im, the great talmidei chachamim of the times of the Gemara, never received this semicha, because they lived in Bavel, not in Eretz Yisroel.

THE STORY OF RAV YEHUDA BEN BAVA

The Gemara (Sanhedrin 13b) tells us the following fascinating story which took place during the extreme persecutions that followed the failure of the Bar Cochva revolt: The Roman Empire once decreed that issuing semicha was a serious crime, punishable by death for both the grantor and the recipient. Furthermore, they ruled that the town in which the semicha was issued would be destroyed, and the areas near it would be razed.

After the execution of Rabbi Akiva, Rabbi Yehudah ben Bava realized that he was one of the last musmachim (recipients of this special semicha) still alive. If he failed to grant semicha to some young scholars, the semicha would terminate with his own death. He therefore endangered himself and granted semicha to five surviving disciples of Rabbi Akiva: Rabbi Meir, Rabbi Shimon bar Yochai, Rabbi Yehudah ben Ila’i, Rabbi Yosi ben Chalafta, and Rabbi Elazar ben Shamua – basically, to an entire generation of Torah leadership. In order not to endanger anyone else, Rabbi Yehuda ben Bava brought them to a place that was midway between two major cities and between two mountains. Thus, for the Romans to fulfill their decree they would need to level two mountains.

Rabbi Yehudah ben Bava succeeded in his mission, although he paid for it with his life. Because of his supreme sacrifice, the semicha continued among the Jewish people for several more generations.

With the increased persecution of the Jews by the Romans, the Jewish population of Eretz Yisroel dwindled, and with time, ordination through this semicha ended. Thus, no one received the semicha that qualifies someone to judge capital, corporal, or kenasos cases, and this aspect of halachic life came to an end.

CAN SEMICHA BE REINSTITUTED?

The Rambam writes: “It appears to me that if all the chachamim in Eretz Yisroel agree to appoint dayanim and grant them semicha, they have the law of musmachim, and they can judge penalty cases and are authorized to grant semicha to others… a person who received semicha from someone who already has semicha does not require authorization from all of them – he may judge penalty cases for everyone, since he received semicha from Beis Din. However, this matter requires a final decision” (Rambam, Hilchos Sanhedrin 4:11).

Thus, the Rambam suggested a method whereby the semicha can be re-created. However, several issues need to be clarified before this project can be implemented:

1. Did the Rambam conclude that this is the halacha, or is it merely a suggestion he is conjecturing? Don’t his final words, “However, this matter requires a final decision,” imply that he was uncertain about his suggestion and that he deferred making a final decision regarding this issue?

2. Assuming, unlike our previous sentence, that the Rambam ruled definitely that semicha can be reinstituted, did he require, literally, all of the Chachamim in Eretz Yisroel to agree, or does a majority suffice? Must the rabbonim be assembled all in one place, or is it sufficient if they are aware of the process and grant their approval?

3. Is the Rambam’s opinion on this subject universally held? And if not, do we rule like him?

THE 16th CENTURY CONTROVERSY– REINTRODUCING SEMICHA

After the Spanish expulsion, many Jews remained in Spain, practicing their Judaism in secret, while publicly appearing to be Christians. Thousands of these Marrano Jews, also often called by the Spanish term conversos or the Hebrew word, anusim, eventually escaped to areas where they could return to the religion of their fathers, yet they were haunted by the transgressions they had committed on Spanish soil. Many were concerned that they would never escape the specter of their more serious aveiros, many of which carried the punishment of kareis. Although they had become true ba’alei teshuvah, they lived in fear of their ultimate day of judgment, when they would have to provide a reckoning for their actions and face the serious consequences.

THE SOLUTION

The Mahari Beirav, Rav of Tzefas in the early sixteenth century, came up with a solution to the problem of these ba’alei teshuvah. He proposed the creation of batei din that could carry out the punishment of malkos, lashes, which releases a person from the punishment of kareis (Mishnah Makos 23a).

There was one serious problem with this proposal. In order to create batei din that can administer these punishments, one must have dayanim who have received a special semicha that can be traced to Moshe Rabbeinu. Since this semicha had terminated over a thousand years before, the Mahari Beirav needed a method of reintroducing the semicha.

TZEFAS, 5298 (1538)

In  5298 (1538), 25 gedolim of Tzefas, at the time the largest Torah community in Eretz Yisroel, granted semicha to the Mahari Beirav, based on the writings of the Rambam (Peirush Hamishnayos, Sanhedrin 1:3; Hilchos Sanhedrin 4:11). He then ordained four people with the new semicha, including Rav Yosef Karo, who had already written his monumental works Kesef Mishneh and Beis Yosef, and later authored the Shulchan Aruch, and Rav Moshe diTrani, the author of several major halacha works, including Beis Elokim, Kiryas Sefer, and Shu’t Mabit. Mahari Beirav also sent a semicha to the Rav of Yerushalayim, Rav Levi ibn Chaviv, known as the Maharalbach, who he assumed would be delighted to receive such a wonderful gift!

The Maharalbach was not happy with the gift and refused to accept the semicha. He took strong issue with their granting semicha, for the following several reasons:

1. The Rambam’s closing words, “This matter requires a final decision,” shows that he was not fully decided on this halacha, and therefore it cannot be relied upon.

2. The Ramban (Sefer Hamitzvos, Aseh 153) disagrees with the Rambam, contending that semicha can not be reinstituted until Moshiach arrives. Thus, since the Rambam was uncertain about this halacha, and the Ramban was certain that there is no such thing, the halacha follows the Ramban.

3. Even if we assume that the Rambam meant this ruling to be definitive, the Tzefas rabbonim had not fulfilled the procedure correctly, since all the gedolim of Eretz Yisroel must be together in one synod. (This opinion is actually mentioned earlier by the Meiri, Sanhedrin 14a.)

Furthermore, the Maharalbach insisted that all the scholars must be involved in the active debate and that all must agree. He also contended that even if someone holds that a majority of gedolim is sufficient, the minority must be aware of the debate and participate in it. He further contended that creating such a synod after the fact would not help, since, once the Tzefas rabbonim had ordained the Mahari Beirav, they now have a bias in their ruling (noge’a bedin), which invalidates their opinion on the subject.

The Maharalbach proved his opinion, that the Rambam’s suggestion was not accepted as normative halacha, from the fact that there had been numerous opportunities for gedolei Yisroel to create semicha, and yet, they refrained from doing so. The Maharalbach concludes that semicha will not exist again until the arrival of Moshiach.

WHAT ABOUT THE MARRANOS?

As for the ba’alei teshuvah that would be left without release from their kareis, the Maharalbach pointed out that if they performed sincere teshuvah, they would be forgiven for their sins, no matter how severe they were. Although it is possible that they may suffer somewhat in this world for these aveiros, despite their teshuvah, they would receive no punishment for their aveiros in the next world (Makos 13b).

On the other hand, the Maharalbach pointed out that he did not understand how semicha could accomplish what Mahari Beirav wanted, anyway, since Beis Din cannot punish someone for violating the Torah, unless several requirements are met, including:

The sinner must receive a warning, immediately prior to his violating the commandment, telling him that he is sinning, explaining to him that what he is planning to do is wrong, and informing him what punishment he will receive if he sins. The sinner must acknowledge that he heard and understood the warning, and then perform the sin, anyway. Furthermore, Beis Din does not punish a sinner unless two adult male Jews witness the entire procedure and then testify in front of Beis Din. Clearly, none of these Marranos had received warning prior to performing the aveiros, and, therefore, they were not punishable with malkus in Beis Din. Thus, how would these ba’alei teshuvah receive the malkus they desire, even if dayanim musmachim exist?

We will continue this article next week.

How Does a Jew Litigate?

 

clip_image002Mendel Greenberg has been unable to resolve a matter with one of his suppliers. He has attempted to discuss the matter with him, but the last time he tried, the phone was abruptly slammed down. To his chagrin, Mendel realizes that he has no choice but to sue the supplier. Not knowing how to proceed, he makes an appointment with his rav to discuss what to do.

PROHIBITION OF USING NON-HALACHIC COURTS

After Mendel finishes explaining his predicament, his rav explains that it is absolutely forbidden for a Jew to submit litigation against a fellow Jew in a secular court, even if both parties agree (Gemara Gittin 88b; Rashi and Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os, or non-halachic courts. When a person chooses a civil court for one’s litigation instead of the Torah’s system, one implies that one does not believe that the system set up by Hashem is the best one. According to the Midrash, this is a chillul Hashem (Midrash Tanchuma, Mishpatim #3).

Unfortunately, even frum people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that every aspect of life is directed by Torah – including how one litigates. The true believer in Hashem understands that the only procedures to be followed are those sanctioned by the Torah.

In addition to the severe prohibition against using arka’os, someone who submits litigation to civil court will probably end up stealing by receiving money to which one is not entitled, according to halacha. The fact that a court ruled in the plaintiff’s favor, or that the defendant chose to settle rather than contest the court case, does not permit taking ill-gained money.

“I am well aware of the problem,” says Mendel to his rav. “I personally know frum people who use the civil courts to resolve their matters.”

“Every generation has its nisyonos, its tests, of its resolve to observe Torah,” his rav sighs. “In our grandparents’ generation, it was Shabbos. During our parents’ generation, there were many difficult issues such as tznius, shatnez and proper standards of kashrus. In our generation, I find that one of the weakest areas of proper mitzvah observance is the usage of civil courts.

“Let me share a very recent incident with you,” the rav continued. “Someone hired a frum lawyer to resolve a legal problem. I discovered that the lawyer had filed a lawsuit in civil court. ‘Which rav has permitted filing a civil lawsuit?’ I asked the plaintiff. It turned out that the plaintiff was totally unaware that there was any halachic issue, and had relied on the halachic know-how of the lawyer! I explained the severity of the prohibition involved, and the matter was transferred to a beis din.

“Look how serious this prohibition is,” said the rav, pulling a sefer off the shelf. “Listen to this Rambam: ‘Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu’” (Hilchos Sanhedrin 26:7).

GOING TO JEWISH JUDGES

“Are Israelis allowed to use their civil courts that employ Jewish judges?” asked Mendel.

The rav pulled another sefer off his bookshelf and began reading the following passage from a sefer of the Chazon Ish:

“‘There is no halachic difference between going to gentile judges and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, empty system. Even if the city residents have accepted this court’s system and authority, their acquiescence has no validity. To force someone to follow this system has the status of stealing from them and of raising one’s hand against the Torah given to us by Moshe Rabbeinu’ (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Tzvi Pesach Frank and Rav Yitzchak Herzog.” (See Shu”t Tzitz Eliezer 12:82.

DINA DI’MALCHUSA DINA

“I have often heard that dina di’malchusa dina (secular civil law) determines halacha in business matters; isn’t it so here?” Mendel inquired.

Realizing that Mendel was not questioning his authority, but simply attempting to clarify this confusing issue, his rav gave him a patient reply.

“What you’ve just quoted is an incorrect understanding of dina di’malchusa dina,” he began. “Dina di’malchusa dina requires obeying rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. But it does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern relationships between Jews, nor does it supplant the Jew’s responsibility to bring his litigation before a proper beis din.”

“I must say,” continued the rav sadly, “that I find it peculiar that often the same person who quotes dina di’malchusa dina when it does not apply, happily ignores it where it does apply. Interpreting business halachos conveniently without checking it out with a rav is another example of an unfortunate weakness prevalent in our generation.

“But please let me clarify one point,” the rav continued. “When I say that dina di’malchusa dina does not apply in litigation, this should not be confused with the similar concept of minhag hamakom.

“Certain areas of halacha, such as the contract laws for buying and hiring, are governed by the concept of minhag hamakom – that normative business practice determines what is halachically accepted. When a person agrees to a contract, both parties assume that they will be following what is normally done, unless it is specified otherwise. For this reason, the halacha regarding sales and employee rights is often governed by accepted practice. And since normal practice is influenced by civil law, these areas of halacha are influenced by civil law. This is not because halacha recognizes civil law, but because of the influence civil law has on business practice.

“However,” the rav concluded, “it should be noted that certain areas of halacha, such as laws of inheritance, are not affected by secular law at all” (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26).

“How should I begin the litigation I came here to discuss?” asked Mendel.

TWO KINDS OF BATEI DIN

“There are two kinds of batei din,” replied his rav. “An established beis din or an ad hoc beis din known as ‘zabla.’ Zabla is the acronym for ‘zeh borer lo echod,’ because each party chooses one of the dayanim (judges) who will judge the case, and then those two dayanim choose a third person to join them and form a beis din.”

Mendel realizes that zabla will probably not benefit him, since it is doubtful that the supplier will willingly submit to arbitration of any type. Therefore, he asks his rav how he proceeds to apply for a beis din to hear his case. The rav refers him to the mazkir, the bailiff or representative, of a nearby beis din. The mazkir issues a summons to the supplier to appear before a beis din.

“What do I do if the supplier comes to beis din and then refuses to obey the decision?” Mendel asked the mazkir.

“Every beis din insists that the litigating parties agree to be bound completely by the decision of the beis din they use,” explained the mazkir. “In addition, beis din proceedings are binding in civil law as arbitration agreements. This means that once the parties sign an agreement submitting their litigation to beis din for arbitration, the civil court will uphold the beis din’s decision. If one party subsequently fails to honor the psak of the beis din, the beis din will authorize the use of secular authorities, if necessary, to enforce its ruling.”

Ultimately, the supplier ignored the summons to appear before the beis din, a serious halachic offence in its own right. Halacha requires a Jew to respond to a summons to appear before a beis din. The fact that it is an unpleasant experience is no excuse for not responding.

In the vast majority of cases, the defendant has the right to request that the case be heard in a different beis din or to request that the matter be decided through zabla. However, he is responsible to convey this intent to the mazkir beis din.

WHAT IF THE DEFENDANT REFUSES TO GO TO BEIS DIN?

What does Mendel do? Unfortunately, Mendel’s situation is neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the required procedure is to file the case with a beis din. The beis din summons the defendant to appear. If the defendant fails to appear or indicates that he will not appear, the beis din authorizes the plaintiff to sue in secular court (Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din.

The usual practice is to issue a summons to the defendant three times before authorizing the plaintiff to sue in secular court (Beis Yosef and Sma to Choshen Mishpat, Chapter 26, citing Rav Sherira Gaon). However, it should be noted that this is the prerogative of the beis din. If the beis din feels that the defendant will not heed an additional summons, they may authorize the plaintiff to sue in civil court after receiving just one rejection. Sometimes, the beis din’s representative might simply phone the defendant to find out if he will honor beis din’s summons.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to receive more in the settlement or ruling than he is entitled to according to halacha. Therefore, he should ask a posek how much of the award he is permitted to keep.

WHAT HAPPENED TO MENDEL GREENBERG?

Unfortunately, the supplier did not respond to the summons of the beis din, so the beis din signed a document authorizing Mendel to take his case to civil court. As noted above, going to civil court under these circumstances is permitted once authorized by beis din. Mendel has not made a chillul Hashem since he has demonstrated his desire to have his case adjudicated according to halacha. Here, it is the supplier who refused to be bound by beis din’s authority and has demonstrated his contempt for beis din, halacha and Hashem’s Torah, thereby creating a chillul Hashem.

Mendel chose an attorney he knew from shul to represent his case. When he met with the attorney, he explained all that he had learned about the prohibition against going to arka’os. The attorney himself was aware of Rashi’s statement that it is a tremendous desecration of Hashem’s presence to use civil courts. However, he had assumed that it only referred to courts of idol worshippers.

Now Mendel felt confident that he could convey some of his newly gained knowledge. “My rav told me that it is forbidden to use any secular court, and that a chillul Hashem is involved every time one goes to a court that does not recognize Torah as its law system.”

The lawyer suddenly realized that he had many shaylos of his own.

MAY A LAWYER FILE A LAWSUIT IN CIVIL COURT ON BEHALF OF A JEWISH CLIENT?

This is unfortunately a very common shaylah. A Jewish lawyer representing a Jewish client sues another Jewish client in civil court. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that this is absolutely prohibited and that it is a major chillul Hashem to do so.

However, this situation provides the lawyer with a great opportunity to perform a kiddush Hashem. He can explain the advantages of going to beis din to his not-yet-observant client. Firstly, it is far less expensive and usually far more efficient, since most frum communities have batei din where a din torah can be arranged within days.

Of course, an observant Jew should not have to be told extraneous reasons why it is beneficial to go to beis din. For one, the only salient point should be that this is what Hashem wants one to do. Certainly, the reward for following halacha is infinitely greater than anything gained by violating halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince the client in a way the client will understand.

MAY ONE TESTIFY IN SECULAR COURT ABOUT A CASE THAT WAS ALREADY DECIDED IN BEIS DIN?

Yes, it is permitted to do. Furthermore, it is permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is a discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The conclusion is that it is not considered a lack of kovod haTorah as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

MAY A LAWYER DEFEND A CLIENT IN CIVIL COURT, OR DOES THIS REQUIRE AUTHORIZATION FROM BEIS DIN?

If a Jew is sued in secular court, it is a mitzvah to defend one to the best of one’s ability, since the plaintiff violated halacha by suing in civil court. There is no need to get authorization from beis din.

IS IT PERMITTED TO SUE A NON-JEW IN CIVIL COURT?

A non-Jew is not required to submit his litigation to beis din. For this reason, a Jew may sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against a non-Jew.

MAY LITIGATION BE SUBMITTED TO A NON-JEWISH ARBITRATION BOARD?

There is a dispute among poskim whether one is permitted to submit a case to a non-Jewish arbitration board without authorization from beis din. It seems that Shach (Choshen Mishpat 22:15) and Aruch HaShulchan (22:8) permit this, if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law. The Nesivos HaMishpat prohibits using a non-Jewish arbitrator, even in such a circumstance.

Although suing in arka’os is strictly prohibited unless authorized by beis din, Shach and Aruch HaShulchan contend that there is a halachic difference between arbitration that bases its decisions on common sense and a sense of fairness rather than a system of law. In their opinion, arka’os is prohibited because one is substituting a different legal system and procedure for the Torah’s system. However, common sense arbitration is not viewed by anyone as a legal system, but simply as a practical, fair way of resolving conflicts. The Nesivos HaMishpat disagrees, contending that using any system not set up by the Torah constitutes the violation of using arka’os.

In practice, to circumvent this machlokes haposkim, one should summon the defendant to beis din. If he refuses to accept beis din’s authority, the beis din’s permission allows one to submit the matter to an arbitration board as well as a civil court.

WHAT SHOULD A PLAINTIFF DO IF HE LIVES FAR FROM A BEIS DIN?

The mazkir beis din can telephone the defendant explaining that the case must be adjudicated by a beis din. If the defendant accepts this, then the beis din will attempt to facilitate the creation of an ad hoc beis din, similar to a zabla, formed from the most qualified individuals available locally. Under these circumstances, a shaylah should be asked whether one should submit the case to an arbitration board. If the defendant refuses to accept beis din’s authority, beis din will authorize that the case be brought to civil court.

Every profession requires its special halachic expertise. The mortgage broker must be familiar with the laws of ribbis, the psychologist with the laws of loshon hora and the businessman with the laws of ona’ah.. And all of them must remember the rules of avoiding arka’os and taking their litigation to batei din.

The pasuk states, “VaYehi David oseh mishpat utzedakah lichol amo,” “And David performed justice and kindness for all his people” (Shmuel II 8:15). The Gemara (Sanhedrin 6b) comments that this pasuk says something unusual. Justice and kindness are opposites.. If David performed justice, then seemingly he was not performing kindness.

The Gemara answers that a just decree resolving a din Torah performs both justice and kindness; justice for the plaintiff who receives his award, and kindness for the defendant by protecting him against the violation of holding onto stolen property. Thus, by ruling against the defendant, beis din is performing an act of compassion by protecting him from transgression. Careful attention to the rules regarding batei din will stand a person in good stead by guaranteeing that his life is always surrounded by kindness.

The Fateful U-Turn

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This article was originally published in the American edition of the Yated Neeman

 

ACT I – The Fateful U-Turn

Location: THE HIGHWAY

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there is no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he agreed to borrow it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din.

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven countered.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that even as a socheir I am not responsible for the damages sustained as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as I will explain.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t HaRan #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir because the damage was caused by negligence!”

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower that we will now explain.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually is. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir because he had never assumed any responsibility. This seems like an unnecessary step in his defense – let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all the damages even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances). However, a socheir’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A borrower is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility or that he was unaware of the liability would not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible for having borrowed the car based on the following reasoning:

1. He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2. As a socheir he can claim that he never accepted responsibility for the value of the car because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident in order to collect the damages from Reuven?

First we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth Century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalties?

The horse rider refused to pay, contending that he was exempt from damages since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider himself is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalties that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, Seventeen Hundred Years Ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party who acted irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon to get his Shabbos jobs done. This running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shnayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally he must pay even if the other party was negligent.

How do we paskin?

The Shulchan Aruch (378:7) rules like Rashi whereas the Rama (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that therefore he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages that happened to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continues his driving career with no further incidents or accidents.

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