THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean

Lesson # 360 (concluding...) • Jurisdiction of a Beit Din
With this lesson, we shall end the topic of the lack of jurisdiction of the Beit Din, although there are still many matters over which the Beit Din does not have jurisdiction that will be not be presented in these lessons.

In the Torah, there are payments provided for that are in the nature of penalties (some of which have been mentioned in last week’s lesson). These are: (1) cases of the double penalty; (2) cases of the four-fold or five-fold penalty; (3) cases of the penalty for rape or seduction; and (4) cases of the penalty which the husband must pay for slandering the bride (which shall IYH be discussed in a future lesson). Non-ordained judges lack jurisdiction over any of these cases. As explained in the Talmud (T. Baba Kama 15b) generally, all payments for damages which are not the actual remuneration for the damage caused, but rather are higher or lower than the actual value of the damage are considered penalties. These cases involving penalties may be judged only by a Beit Din of ordained judges. There is one notable exception to the foregoing types of cases. In the case of property damage caused by an animal through “pebbles”, the owner’s liability is for one half of the damage. The case of pebbles may arise in one of two ways. It may refer to one’s animal entering upon someone else’s property and, while there kicking a pebble which breaks a vessel; alternatively it may refer to one’s animal walking on a public street and kicking a pebble which flies onto private property where it breaks a vessel. In either situation of damage by “pebbles”, the owner of the animal is liable for one-half of the damage caused, and this one-half payment is treated as an indemnity rather than penalty.

This statement of the law is a “halacha l'Moshe miSinai", an Oral Tradition that was given to Moses at Sinai, without a corresponding reference in the Torah. Accordingly, Rambam (Laws of Sanhedrin 5:9) writes that non-ordained judges may collect this one-half sum since it is not a penalty. While this case obviously involves a loss of money to the person whose property was damaged, it must also be concluded that Rambam holds this type of occurrence to be frequent, otherwise their jurisdiction over this type of case would fail because of infrequency. The major codes such as Tur and Shulhan Aruch also indicate that non-ordained judges do have jurisdiction over cases of the one-half damages for “pebbles” although they do not have jurisdiction over other cases where the judgment is one-half of the damages since in all other cases the one-half damages is a penalty.

In addition to the Torah penalties, there are other payments which, although they appear to be in the nature of indemnification, are treated by the Talmud as penalties. Thus a Mishna states that if one boxes another’s ear he must pay him one sela; if one slaps another he must pay him two hundred zuz. Several other sums are also mentioned for various assaults. Regarding the first case, Rashi explains that it may mean that he actually cuffed his ear or he shouted in his ear. Although there are different opinions among the authorities as to what these sums specified are intended to cover - that is, which of the five items of compensation in cases of assault they cover - all agree that these payments cover some of the items of compensation.

Accordingly one would expect them to be classified as items of indemnification rather than penalties. Yet Rashi and Rashba refer to them as penalties and Tosafot, in explaining a Talmudic decision which classifies them as penalties which cannot be judged by non-ordained judges, concludes that all cases which non-ordained judges may not judge nowadays are all now classified as penalties, so that the conclusory label describes the result. In similar fashion, Rambam, in discussing those cases over which non-ordained judges do not have jurisdiction, states “…and similarly, all the penalties which the Sages penalized, such as when one strikes his neighbor or slaps his neighbor, are judged by non-ordained judges. Rabbi Karo in the Shulhan Aruch is in accord with this classification of such items as penalties and, therefore just as in the case of Torah penalties, non-ordained judges may not adjudicate such cases. By contrast, those penalties of Rabbinic origin not expressly made comparable to Torah penalties are enforceable by non-ordained judges. Thus, whenever the Rabbis pre- scribed monetary penalties as a civil remedy for certain types of antisocial conduct, such Rabbinic penalties may be enforced by non-ordained judges.

Blemish for Rape or Seduction of a Virgin
Another area wherein non-ordained judges lack jurisdiction involves certain types of civil remedies for antisocial conduct. One such case is the action to recover for “blemish” to a virgin who has been raped or seduced (i.e., compensation for making the victim less desirable). Although it is agreed that non-ordained judges lack jurisdiction over this case, there is a controversy among authorities as to the basis for this conclusion. It seems that the most cogent rationale is that presented by Tumim: although cases of rape and seduction may not be usual, monetary damages in these cases is unusual; thus the loss of money criteria is absent. Moreover, the method of assessing blemish involves appraising the woman as if she were a slave, a procedure that requires ordained judges.

Ransom
A second case of civil remedy for antisocial conduct over which non-ordained judges lack jurisdiction is the case of ransom. Ransom is defined as a money judgment paid when one’s animal kills another person. The basis for this law is found in the verse “If a ransom be laid upon him, then he shall give for the redemption of his life whatsoever is laid upon him” (Sh'mot 21:30). There is a difference of opinion how the ransom is to be assessed. One view is that the owner of the animal who killed a person must pay the value of the person who was killed; the other opinion maintains that the owner of the animal must pay his own value. However, since such assessment requires appraisal as if he were a slave and is also an infrequent matter, under either view it requires a Beit Din of ordained judges. The codes are unanimous in concluding that non-ordained judges may not judge cases involving ransom, since they are not matters that occur frequently. From this lesson and the prior lessons we see that the non-ordained judges lack jurisdiction over many matters. How did the halachah cope with this lack of jurisdiction. IYH beginning with the next lesson we shall see how the halacha coped.

The subject matter of this lesson is more fully discussed in volume 1 chapter 1 of Jewish Jurisprudence by Emanuel Quint & Neil Hecht. Copies of both volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il

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