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.
