Lesson # 141 (part five) • Lifnim Mishurath HaDin

At the outset, I once again want to thank those of my readers who have written to me and have spoken to me in person, thanking me for trying to make these lessons as simple as possible. The lessons regarding lifnim mishurath hadin may seem more complicated because I have included the names of the authorities and the text citations of the Talmudic references and the codes and responsa literature. Actually if you block out the names, the lessons are written in a simple manner. After this lesson we will be getting back to simple Rabbinic civil law, with very little, if any, citations. (I thank Mr. Mark Lesnick of Beth Shemesh for his helpful remarks.)

The other morning, Emil Dere, one of the men in our kollel raised the following philosophical question? Whether Hashem wants Beth Din to compel a person to act beyond the requirements of the law, to act lifnim mishurath hadin. Too often some individuals want to know what is the least possible action that they may take and still comply with the law. However, in discussions in our kollel and lecturing and teaching, especially younger people, I find that people are searching for higher standards of conduct.

Most often, those who have returned to God's Torah also seek a higher standard of conduct. Many of us seek these higher standards not only in our ritual lives, but we seek the requirement for higher standards in our business lives.

In the last lesson we began the discussion whether a Beth Din can compel the litigants to comply with the standard of lifnim mishurath hadin. There was discussed the divergent views of two of the greatest codifiers, Rabbi Asher, who holds that they cannot compel compliance with lifnim mishurath hadin, and Rabbi Mordecai ben Hillel, who holds that there can be coercion to comply. Most of the classical commentators on the Shulhan Aruch and its forerunner Arba Turim discuss this question.

I mention just a few, because their names may be familiar from yeshivah days. A classical commentator on the Arba Turim, Rabbi Yoel Sirkis, (Bach) has a most quoted discussion and cites many of the prior codes and commentaries. He concludes that based on his reading of the prior sources, that the Beth Din may compel a person to act according to this principle.

In the Shulhan Aruch Hoshen haMishpat, chapter 12, Rabbi Karo does not mention the principle. However, Rabbi Moses Isserles (Ramo) writes: "The Beth Din may not compel a person to act lifnim mishurath hadin, even if they think it would be proper to do so; and there are those who disagree." It is to be noted that Ramo does not indicate his preference.) Rabbi Mordecahi Jaffe (Levush) parallels the language of Ramo. Rabbi Shabtai Cohen (Schach) cites Rabbi Sirkis with approval.

Two interesting cases follow:
1. Rabbi Jacob Reischer (Prague, 1670- 1733) was asked to decide the following case. A woman on her death bed called all her children together and each with a handshake assured her that if there were any disputes among them they would be adjudicated by a person she had named. After her death one of the sons stated that the person she had named was unlearned and not qualified to adjudicate a dispute which had arisen. The question presented to Rabbi Reischer was if the children were bound to follow their promises made to their mother before she died. He discusses many aspects of promises made to a dying person and also discusses the question that assuming arguendo that they were not bound to fulfill their promise could they be compelled to act in furtherance of the principle oflijnim mishurath hadin. Reischer concludes that one cannot be physically compelled to follow the principle nor can one be placed under a ban or excommunicated for failing to adhere to the decree of the Beth Din to follow the principle. Combining several principles of law, he concludes that the son has to abide by the promise he had made to his mother on her death bed.

2. In 1802 a fire broke out in the ghetto of a small town in Germany and many of the homes were destroyed. Contributions came in from many Jewish communities to repair the damage and there were some disputes as to how to divide the repair funds. Moshe Sofer (Germany and Hungary, 1762-1839) (known as Hatam Sofer, a leading European halachic authority) was asked to adjudicate and in a lengthy responsum he takes up each claim. The final claim he discusses involved a widow whose house was contiguous to the synagogue. The firefighters ordered the roof to be torn from her house so that if the fire would spread to her house it would be easier to contain. Since the fire never reached her house the question was raised if the funds to repair fire damage should be given to her. Sofer found many reasons why she should be compensated out of the fund. In passing he concludes that if the fund would not be sufficient to restore her roof then under the principle of doing that which is upright and just in the eyes of the Lord the community may be compelled to pay for completing the roof. He thus seems to follow that school of thought that compulsion may be used to further the principle of lifnim mishurath hadin.

Rabbi Yehiel Epstein (Russia, 1829-1908) wrote a scholarly digest of the Shulhan Aruch. In chapter 12 he writes "Regarding lifnim mishurath hadin, one may not be compelled to do so, although it may appear to the Beth Din that it would be proper to do so; and there are those who differ. It appears to me that one may be coerced to act lifnim mishurath hadin. The dispute is only in those situations where real coercion is used. But if words only are used, all agree that one maybe coerced, for example to say to him that you are obligated to act lifnim mishurath hadin, and similarly words of rebuke and words which awaken thoughts of mercy."

IN CONCLUSION: The foregoing presents a very brief overview of the subject of lifnim mishurath hadin, from its earliest mention in the Talmud to contemporary halachic literature. I have intentionally failed to translate the term lifnim mishurath hadin. I thought that the reader after reviewing the cases which I have presented, whether they appear in the Talmud or in post Talmudic responsa, could form his own conclusions as to what the term means. I do not believe that lifnim mishurath hadin necessarily implies a higher ethical standard. The Torah is ethical and to imply a so called higher ethical standard would mean that there may be something lacking in the ethics of Torah. Rather, I think, the term lifnim mishurath hadin demands that we strive to be more saintly in our actions. There are times when we feel that we are halachically "absolutely right." It is in such times that we have to overlook our "absolute right" and be compassionate to those who we feel are at that juncture "absolutely wrong". Lifnim mishurath hadin to a great extent is the dictum of Hillel when he said "What is hateful to you do not do unto your neighbor".

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