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3 Elul 5765 - September 7, 2005 | Mordecai Plaut, director Published Weekly










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Opinion & Comment
Chosen Mishpat Issues in the Modern World — What a Modern Beis Din Must Cope With

by R' B. Yisraeli

We paid a visit to HaRav Yehuda Silman, of Bnei Brak, a prominent posek, and, wedging ourselves in between his many visitors and other affairs, engaged him in a talk about the laws of Choshen Mishpat which are becoming increasingly important but complex. We were able to ask some penetrating questions and to get frank answers.

Q. Must a dayan dealing with monetary matters also be as wise as Solomon? Or is it enough for him to be thoroughly versed in the halochoh alone?

The answer is that definitely, it is not sufficient just to know the halochoh, in the same way that questions in Yoreh Dei'ah and Orach Chaim cannot be answered by someone with faulty vision, or who is lacking in other fields of Torah. In my opinion, one who deals with monetary matters must also be wise in human nature and in sizing up people.

[HaRav Silman pauses briefly and tries to summarize the situation today:]

In every complex matter, the litigants come to the beis din accompanied by a to'ein rabboni, a halachic representative so to speak, along with lawyers, accountants and any other professionals whose expertise they might require. The latter sometimes do not even appear in the court, but are consulted beforehand. The litigants prepare their cases to the best of their abilities, sometimes they even try to deceive or stymie the case or the judge. It is more common that they just put a strong emphasis upon their stronger arguments. But sometimes the material is very complex.

The upshot of it all is that it is our duty to deal with the material, expose contradictions in their arguments, and show the litigants where their logic is faulty. The situation calls for dealing with the people who prepared the case over many hours preceding the hearing before the dayonim. A dayan has to know that he, too, must sometimes avail himself of professionals.

Q. Is this more true today than in previous generations?

A. This has its consequences in different areas. For example, in the rishonim and the poskim regarding, "Ovid dina lenafshei bideleka pseido," where a person may do something, take action, on his own if he does not cause a monetary loss. There is a shailoh, if a person has access to a courtyard where a woman resides and he encroaches on her privacy. The Nesivos writes that since his access does not cause a monetary loss, he is not punishable by malcos. The Nesivos says that she has the simple option to go to beis din and have them summon the man for a din Torah to force the issue.

What did that mean in the Nesivos' day? Simply this. The next morning after the man caused her the trouble, she goes to the local rov. He summons two other dayonim who are naturally available in the next room; the three quickly listen to her story; maybe they summon the man; and that afternoon, or at the latest the next day, they order that he must go out of the courtyard.

But in our world, a person who goes to a beis din must wait — sometimes even a very long time — until his case is heard for a first hearing. And after the first hearing, he must wait again. Before any action is taken much time may pass. Is this also a situation in which it can be said that she has no loss?

Q. And what, nowadays, happens that the dayonim must cope with?

I will explain this indirectly: It is told that the poverty of the author of the Ketzos HaChoshen was so great that he had to scavenge in the streets for scrap paper since he couldn't afford to buy any.

I will ask a question. Some of my cases nowadays, can involve some five thousand printed pages. Some take up a thousand, some "merely" hundreds of pages. The Ketzos was a dayan. Why couldn't he just have taken some of the papers from his beis din to write on the other side?

The answer is really very simple. Things have changed today. There are cases where I must read through hundreds of pages of accounts, numbers, records and documents etc. All these require reams of paper and also a lot of time. Rabbis of previous generations — like the Ketzos — were not beset by these kinds of cases. [That is why the Ketzos had no paper.]

In summary, each generation has a different set of difficulties to contend with. The Choshen Mishpot of nowadays calls for dealing with these kinds of issues.

[HaRav Silman points to several thick folders, all of which are part of one single case.] In big business deals, fifteen or more witnesses can be summoned at a hearing and so on.

If we study the responsa of rabbis of even recent generations — the Ketzos HaChoshen, Nesivos, Chasam Sofer — we clearly see that 80 percent of the discussions in the beis din involved only the pure halachic question. Today, the world is much more complex and sophisticated regarding monetary matters such as wages, interest etc. and it is not like that any more.

Q. Might we dare ask if, due to these circumstances, the novol birshus haTorah in Choshen Mishpot law has become more prevalent? Have workers, employers, contractors, buyers and so on planted mines within contracts, that are halachic — but to their benefit, of course? Can it be that both litigants and even the judges see the injustice, but since according to din Torah everything is clearly one way, their hands are tied? They used to say this is a way that the Chazal can be understood that, "Jerusalem was destroyed because they did everything based on the letter of the law," meaning, on the letter but not according to the spirit.

HaRav Silman says: Allow me to phrase your question as follows: The civil courts have something that is nonexistent in Torah courts: A contract, for example, can be invalidated on the grounds that it is not equitable, or that it is completely one-sided and clearly does not take any account of the interests of one of the sides. The civil court can void such a contract even if both sides have signed it.

These kinds of cases come before us, too. Jews wallow in the mud which they have, so to speak, leaped into, knowingly or accidentally, and they come crying to us for help. But at that point, both halachically and practically, there is nothing we can do if a person invested money in a venture that went bankrupt or suffered losses and damages.

The same applies to a contract signed between employer and employee. Even if it is clear that had one of the sides realized the implications of what he signed, he would not have signed, but once something is signed, it is not a simple matter to invalidate.

In a famous responsa, the Rashba writes that a person cannot claim that he did not understand what he was signing, even if he really did not even know the language in which the contract was written. Even in such a case, we say: If you did not find out exactly what it says, it means that you agreed. Even to this principle, there are certain limitations and qualifications, but this is the basic principle that is given in this responsa of the Rashba and that responsa is quoted by the Mechaber in one place, and in another place the Ramo also rules that way. It is very important not to sign any documents in haste, without properly determining what they say.

Q. Does this mean that a person might take unfair advantage of this, according to his own degree of G-d- fear?

In the kind of agreements such as you are referring to, the background generally is that a Jew wishes to work at almost any wage, and therefore he is quick to sign, practically with his eyes closed. And later? Later, he simply regrets what he signed on and thinks, "Why did I agree to that?"

We must teach people that when they go to sign contracts presented by employers or contractors, who have lawyers and other professionals to help them, if they think they don't understand something, they should first consult a professional before signing. And may Hashem help us to save them.

Q. Is it possible in Choshen Mishpot — as it is in Yoreh Dei'ah and Orach Chaim — to present in writing complex halachic principles, since the practical details change with every different case?

I think that it is possible to write down such principles, even though, to be sure, each case must be dealt with individually. It may still not be that if a person has a question he can just open that sefer to page such-and- so and find out what the halochoh is. But essentially, if the halachic parameters are clearly defined when laying things out, one can certainly write such works.

Q. What are the difficulties involved in judging according to the true din Torah, in our times?

The Shach wrote that "In our times, there is no one who can judge [din Torah] altogether accurately" — and that was in his day! How much more so in our generation!

Indeed, in the botei din, they sign a document of borerus (an arbitration agreement — an agreement that the din Torah should be considered at least an arbitration) for two reasons: 1] because of the difficulty in truly judging by din Torah and 2] so that the ruling can later be enforced by the civil courts, if necessary. Nonetheless, the goal is to judge according to the pure din Torah. People make a big mistake about this. The truth is that of twenty typical cases, perhaps a compromise (peshoroh) may be made in part of one of them. [That is, mostly judgments are rendered and not compromises.]

Q. In matters of neighborly relationships in general, and especially in affairs pertaining to Choshen Mishpot, do we see the degeneration of the generations (yeridas hadoros)?

Yeridas hadoros is apparent in every area.

But there is an interesting phenomenon which is worthy of note. In the responsa of the poskim throughout the generations, the number of chiddushim on matters of Choshen Mishpot are few relative to the other sections of the Shulchan Oruch. In more recent generations, they became even sparser. See the responsa from the Chasam Sofer and others.

In my opinion, from the time the Vaad Arbaa Arotzos was shut down, the ability of our courts to enforce their rulings dropped drastically. Consequently, this branch was considerably weakened. And so we witness that up to very recent times, that because of this — at least in part — the works produced by the great acharonim on the Shulchan Oruch did not focus much on Choshen Mishpot, except for Rabbenu the Maharsham and Rabbenu the Chazon Ish.

However, precisely in this area, the situation of the past two decades has seen a change for the better, with the establishment of many botei din in Eretz Yisroel, and the awareness of people to bring their cases to be judged according to the din Torah, like the beis din first founded in Bnei Brak under the leadership of HaRav Nissim Karelitz and HaRav Shmuel Halevi Wosner. And besiyata deShmaya many other botei din were founded there subsequently.

Today, you find many kollelim studying Choshen Mishpot. Jerusalem boasts dozens of such botei din and in Bnei Brak, there are almost ten.

As we mentioned there is great his'orerus among the Torah public to learn and teach, keep and do.

It should be noted that the majority of our public obeys the rulings of the Torah courts. And even the minority that refuses to accept their rulings are usually forced to do so through the enforcement of the halachic rulings by the civil courts, which is made possible by the initial signing of the borerus agreements.

Darchei Choshen: Part III

The neighbors' children play in the lobby downstairs and disturb you from concentrating on a complex sugya. Can you prevent them from playing? A neighbor is always placing bread out for the pigeons, which causes the building to become filthy. Can you prevent him from doing so? An administrator forgot to arrange National Insurance for his employee. What should be done?


Even one who is not taken to court, encounters in his daily life all kinds of questions regarding fiscal matters, whether he wishes to know if he is acting according to the halochoh, or if he wishes to know if he could prevent his neighbor from harming or annoying him. Sometimes, even a person who is very meticulous in other halachic areas, is not aware that he is transgressing certain Torah prohibitions regarding financial matters. If a person is summoned, or summons someone, to a beis din, he should know to which one to go, who has the right to choose, and when one should go to a civil court after all, what clout does a ksav seiruv carry and who is liable to pay the court fees in a din Torah.

When one finally comes to a hearing: which witnesses can he bring? Can a baal teshuva testify about things he saw before he became religious? Is the testimony of a private investigator valid in a Torah court?

Questions of this nature and many more are made accessible to the public these days in the marvelous work, Darchei Choshen, the third in a series, by HaRav Yehuda Silman Av Beis Din by HaRav Nissim Karelitz, published in 5764. Questions which the author was asked by the public appear in this work and the most practical and common of those hundreds are presented here so that the public can know what to do and what pitfalls to avoid.

The second half of this work includes general rules, but here too, many practical responsa are brought with relevancy to everyday life. A yeshiva administrator has mixed up various funds in his trust, some of them charity money: What should he do? A person had an aliya and forgot how much he pledged. What should he do?

Aside from the responsa to the questions regarding monetary matters presented by the author, the latter has also enriched us with some other important aspect: Every scholar realizes that the rules of tefisoh and of kim li are scattered throughout many places in Choshen Mishpot. And even though the Nesivos arranged the rules relevant to this subject, he abbreviated them. R' Silman has organized these general rules in a clear manner so that every scholar has access to them and can see their full practical implications.

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