Lesson # 359 (continuing with...) • Jurisdiction of a Beit Din There is a passage in the Talmud (T. Gitin 88b) from which we derive the following principles with regard to this matter: First, according to Torah law only ordained judges can compel a man to divorce his wife when the law requires such a result; second, non-ordained judges have at present been given jurisdiction over this matter. One reason that some of the commentators advance for this jurisdictional extension to non-ordained judges is the compelling need to protect a Jewish woman who might not, without this divorce, ever be able to be free to remarry. But regardless of the reason given, the authorities agree that where circumstances are such that the law requires it, non-ordained judges have the jurisdiction to compel a man to give his wife a divorce. The second marital matter over which the jurisdiction of non-ordained judges extends deals with marriage settlement contracts (ketubot). It has been stated if the non-ordained judges did not have jurisdiction over marriage contracts and the debts arising therefrom, a wife would be at her husband’s mercy. That is, he would be able to divorce her with impunity since she would have no Beit Din to turn to in order to collect the sum provided for in the marriage contract. This might in some cases lead to “closing the door to marriage”. In addition, it has been pointed out that cases involving collecting the money provided for in the marriage contracts are a frequent occurrence and certainly entail a loss of money to the wife if she cannot collect the marriage contract moneys. Consequently non-ordained judges were give jurisdiction over marriage contract settlements. In addition to their extensive judicial authority, the non-ordained judges also perform an important nonjudicial function - that of accepting converts. The Talmud states that the ritual of accepting converts requires that it be performed before three persons. The reason given is that the Torah speaks of conversion as a judgment (Bamidbar 15:16; Vayikra 24:22) and as Rashi explains, whenever the Torah refers to a judgment it means that at least three persons (i.e. a Beit Din) are required to effectuate the judgment. Rambam, in discussing the acceptance of converts, only states that three persons are required. But he does not mention whether the three need be ordained or not. Had the acceptance of converts only been a thing of the past, the entire question whether or not non-ordained judges have jurisdiction over the matter would be a moot question. But it is a fact that from time to time converts are accepted, albeit hesitatingly and only after considerable inquiry, before being accepted into Judaism. On what authority do the religious courts, which of course consist of non-ordained judges act in accepting converts? Tosafot, in several places, clearly states that the acceptance of converts was originally intended to be limited to ordained judges. How could then non-ordained judges accept converts? Until now, the test for determining the jurisdiction of non-ordained judges have been (1) frequency of the occurrence of the case; and (2) involvement of monetary loss. The latter test is not applicable to cases of conversion, but apparently the test of frequency must be met. The authorities disagree whether or not conversion cases are frequent in nature. But according to those authorities who hold that the matter is not frequent, how may non-ordained judges act in such cases? Tosafot, returning to the source of the law and to the basic reason for the law, offers two solutions. First, in referring to the case of the convert, the Torah (Bamidbar 15:15) uses the words “a statute forever throughout your generations”. From this we may infer that present day courts of non-ordained judges are authorized to preside over cases of conversion. A second reason offered by Tosafot is that just as the non-ordained judges do the bidding of the ordained judges of old in commercial matters, so as “not to close the door to borrowers”, so too do the non-ordained judges do the bidding of the ordained judges of old, “so as not to close the door to those who wish to enter into the Divine covenant”. Thus the second answer to the dilemma is that the non- ordained judges may exercise the function of accepting converts, despite the infrequent nature of such cases, since the overriding importance of not shutting the door to converts obviates the necessity for this type of case to be one that occurs frequently. It remains important to summarize and emphasize those matters over which the non-ordained judges have not acquired jurisdiction. The first among those is in the area of personal and property damage. When one maims another person there are five types of compensation for which he may be liable. The first is for injury, that is, damages for permanent injury resulting from the occurrence. The second is compensation for pain and suffering. The third is for loss of earnings, that is, estimating the earning capacity that has been diminished by the permanent injury. The fourth is for medical expenses. The fifth type of compensation is for embarrassment caused by the very happening of the occurrence. Of course all five types of compensation will not necessarily be present in every case. The question arises whether non-ordained judges may adjudicate cases involving physical injuries and award judgments for those categories. In other words, when ordained judges were give jurisdiction over certain types of damage cases, were these particular cases included in the Talmudic source (Baba Kama 84a) which forms the basis for the laws answering this question. It is derived from a case in which an ox bit a child’s hand. The Talmud, after a lengthy discussion enunciates the two pronged test as stated above: (1) loss of money; and (2) frequency of occurrence. All of the authorities accordingly hold that in case of injury by one person to another, non- ordained judges do not have jurisdiction to award a judgment for three of the five categories of compensation, that is, for permanent injury, pain, and embarrassment. By contrast, the other two categories, loss of earnings and medical expenses, involve a loss of money and occur frequently. Accordingly, non-ordained judges are granted jurisdiction to award compensation in these two situations. Non-ordained judges also do not have jurisdiction over cases to sue the owner of animal that caused injury, no matter how the injury was caused. In halacha, an animal may cause injury “with its horn”, “with its tooth”, or “with its foot”. The non-ordained judges do not have jurisdiction in any of these cases. IYH next lesson will begin by listing a few other cases over which the non-ordained judges do not have jurisdiction. 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 [The Parshat Vayeishev Homepage]
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