THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean

Lesson # 352 (part two) • Jurisdiction of a Beit Din
We continue on with the jurisdiction of the Beit Din of three judges. In this lesson we shall discuss the remedies for anti-social conduct.

The twofold, Fourfoldand Fivefold Payments
This jurisdictional category of the Beit Din does not focus on the nature of the damage of the causative agent, but instead focuses on the manner of its occurrence and the severity of the remedy which may be imposed. These involve cases dealing with civil remedies for antisocial conduct.

If a person steals an object by theft and the stolen object is found in his possession, the Torah states that the Beit Din must award double damages. (Sh'mot 22:3) This means that the thief must pay back twice the value of the stolen object even though he still has it in his possession. The case of the stealthy thief is placed in stark contrast to one involving robbery. The brazen person who robs people openly with no attempt to hide his identity, if found liable need pay only the principal amount. The distinction between theft and robbery is based one the idea that the thief, while not being fearful of violating the Divine injunction against stealing, is fearful of people and thus takes property stealthily. The robber on the other hand, because he does not place the Divine injunction on a lower level than the fear of people (being fearful of neither) is not subject to the additional punishment. When the thief pays double the value of the stolen object, the amount of the object is in the nature of indemnification and the additional amount is considered a penalty.

Another case of civil remedy for antisocial conduct mentioned in the Mishna is the case of someone stealing a sheep or an ox and either selling it or slaughtering it. If the thief sold or slaughtered a sheep, he must pay four times the worth of the animal; however, if he sold or slaughtered the ox, he must pay five timesthe animal’s value. Here too, the value of the sheep or the ox is indemnification and the additional payment is penalty.

Robbery and Mayhem
The second category of cases involving a civil remedy for antisocial conduct deals with robbery and mayhem, in which the plaintiff seeks restitution. Rashi explains that robbery includes cases where a bailee denies the bailment as well as cases where one robs from another by force. Chidushei Anshei Shem comments that although the latter is more obviously a case of robbery than the former, and logically should have been stated first, Rashi gives precedence to the case of the bailee who denies the bailment because from that case the principle is derived that three judges are required in monetary cases. Rashi, however, specifically excludes from his definition of robbery those situations where the borrower denies a loan, because moneys are borrowed to be spent. The difference between these cases is that when the article is given to the bailee, only the right to temporary possession has been transferred, while title to the goods is acknowledged to be owned by the bailor. Therefore at the very moment that the bailee denies the bailment, he robs the article from the bailor because at that moment he is openly taking away the ownership, the title, from the bailor. But in the case of a loan, the specific money is never intended to be kept by the borrower, for the lender knows that the money is going to be spent. Therefore title to the money has been transferred to the borrower, and all that the lender retains is a debt, a claim to be repaid. Therefore when the borrower denies the debt, it is not as if he is at that moment robbing the title to the borrowed money. Additionally there may a different jurisdictional conclusion between two different types of robbery. The case of robbery in which a physical struggle ensues between the robber and the victim differs jurisdictionally from the case where the robbery is completed by the mere threat of force. In the former case non-ordained judges do not have jurisdiction to hear the case, while they may have jurisdiction in the latter case. Likewise in cases of mayhem, the Beit Din has jurisdiction over the civil remedies arising from such antisocial behavior. In cases of this type, the law provides that the plaintiff may recover for five categories of loss: injury, pain, healing, idleness, and embarrassment. Alfasi states that the Beit Din judges cases of robbery and mayhem as well as cases involving the double, fourfold and fivefold penalties.

Rape and Seduction
Besides the cases of robbery and mayhem, where the civil remedy is limited to the value of the actual damage inflicted, and the two cases of theft, where multiple damages are decreed, there are two other cases mentioned in the Mishna which fall into the category of a civil remedy for antisocial conduct. These cases are rape and seduction. The Mishna states: “Cases of rape and seduction are tried by three.” In these cases the perpetrator of the act must pay to the victim a monetary penalty. This penalty is in addition to the regular payment for the five categories of actual damages, injury, pain, healing, idleness, and embarrassment, which must be paid in cases of mayhem. Even in cases where no physical injuries are suffered, so that the perpetrator of the act does not have to pay for some of these five categories, the rapist must still pay for pain and embarrassment, while the seducer must pay only for embarrassment. Rambam, based on a Talmudic text, explains how the Beit Din assesses embarrassment. “It is contingent on the position of the man who caused the embarrassment and of the girl who was embarrassed. There is much greater embarrassment to an esteemed girl from an eminent family than there is to a girl from a poor or modest family. There is a difference betweenone who is humiliated by an important, prominent man and one who is embarrassed by a plain man. The Beit Din considers the amount that the girl’s father would have paid to prevent such a thing from happening at the hand of this man, and this is the amount that is paid. In addition, both the rapist and the seducer must pay for blemish, the compensation for making the victim less desirable. Blemish is assessed by taking into account the physical beauty and consider her as if she were a slave girl being sold in the marketplace. They must assess the difference in price that which a master would pay to purchase a virgin slave girl to giveas a consort to his male slave and that which he would pay for a non-virgin slave girl to give to his male slave whom he desires to please.

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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