(Please include header and footer when redistributing this material.)
_________________________________________________________________
THE DAFYOMI DISCUSSION LIST
brought to you by Kollel Iyun Hadaf of Yerushalayim
Rosh Kollel: Rabbi Mordecai Kornfeld
[EMAIL PROTECTED]
[REPLY TO THIS MESSAGE TO DISCUSS THE DAF WITH THE KOLLEL]
________________________________________________________________
Shevuos 038: The justice of Beis Din
Rafi Goldmeier asked:
Dear Kollel,
Rashi on daf 38b says that in our days we no longer take shavuot because
of its great punishment - instead, in court we force an arur in front of
10 people, as a type of shavuah.
In practice, when 2 religious Jews (even Rabbis, let's say, who are not
suspect of lieing) go to a Bet Din in a dispute of money matters and they
want to take a shavua, would Bet Din allow them? Would Bet Din have them
take an arur?
I have been told that all Bet Din does nowadays is pshara (compromise -
form of arbitration?). In the time of the Aruch Hashulchan (Choshen
Mishpat 87:17-18), it is clear they were still forcing shavuot in money
matters. If this is correct that nowadays Bet Din stopped giving shavuot
because of liers, then there is no real justice in our Batei Din, just
shuda d'daynie. When people go to court, it seems they would want din not
always compromise. This seemingly would cause reluctance in going to Bet
Din to resolve disputes, as the judges are not providing justice!
For example, what would a Bet Din pasken (nowadays) if 2 people came with
a dispute. Reuven claims Shimon owes $100, while Shimon agrees he owes
$50. Would Bet Din make the person give $75? That is not justice? Also, it
might cause people to fabricate claims - Reuven in such a case, knowing
that Bet Din would only award him $75, would instead of claiming $100
rather claim $200 thereby receiving a higher settlement!! How do we see
the justice in bet Din nowadays?
---------------------------------------------
The Kollel replies:
"Pesharah" does not mean a fifty-fifty compromise. "Pesharah" means that
Beis Din is not obliged to rule in accorance with the absolute Din Torah
for it is not always possible to reach the absolute Halachah in Choshen
Mishpat. When the litigants accept the Pesharah, that means that they
accept to transfer ownership of any money as per the court's ruling.
However, generally they accept "Pesharah Karov l'Din," which means that the
Dayanim must base their P'sak on their understanding of what the true
outcome of the Din would be l'Fi Halachah; it is *not* the same as "Shuda."
Even in the time of the Gemara, and surely in the time of the Rishonim, the
Beis Din tried to get the people to refrain from making Shevu'os. The
Ashkenazi Batei Din of today do not allow Shevu'os at all, and there is a
formula for the monetary value (%) which each Shevu'ah is worth.
As for fattening the claim, this was always a problem, even when Shevu'os
were allowed to be made, since people generally refrained from swearing,
and thus an unscrupulous litigant would inflate his claim, knowing that his
opponent would probably not make a Shevu'ah. The Gemara is most
unsympathetic to a litigant who uses this tactic.
In general, the Torah gives the Dayan power to rule Al Pi Da'ato (see
Kesuvos 85a) when he smells a rat. The Dayan who is well versed in Torah
and has the proper Midos has the capacity to feel out the truth.
As for "the justice in Beis Din nowadays," according to the forementioned
there is no question. Moreover, no other system of law can compare to the
degree of justice of Beis Din.
Dov Zupnik
To unsubscribe from this mailing list, send email to
[EMAIL PROTECTED] with this text in the body of the message:
unsubscribe daf-discuss
