Lesson # 357 • Jurisdiction of non-ordained judges We shall now discuss the types of cases over which the non-ordained judges were given jurisdiction to act nowadays when we no longer have ordination. In the last lesson, the non-ordained judges were coercing a husband to give his wife a divorce - a function that was previously limited to courts of ordained judges. The Talmud answered the question of jurisdiction of the non-ordained judges by stating that they were granted jurisdiction over cases that occur frequently. This test was met in the divorce case. The Talmud, however, adds another test, that the case must also involve a loss of money. This second requirement was not relevant in the divorce case and therefore was not mentioned there. We thus have a twofold test when judges who are not ordained may judge cases, the case must: (1) involve a loss of money (to one of the litigants); and (2) must be of a type that occurs frequently. After ordination lapsed, the Beit Din continued to sit and judge, using the two-part test of frequent occurrence and monetary loss to determine the jurisdiction of the court. We shall now discuss some of the matters over which the present day Beit Din of non-ordained judges have jurisdiction. The first area of jurisdiction of non-ordained judges concerns commercial matters. Classic examples in this category are cases of loans and admissions. In the latter case at least two witnesses testify that in their presence the debtor admitted the indebtedness. These cases involve commerce and credit and the main reason for liberalizing the Torah requirements that only ordained judges could judge them was so as “not to close the door to borrowers.” There is unanimous agreement among the authorities that the cases of loans and admissions can be judged by non-ordained judges. The only difference of opinion is whether this is due to Rabbinic enactment or whether loans and admissions could have been judged by non-ordained judges even according to Torah law. In addition, Yad Rama on Sanhedrin 32b says that the liberalization under the categories of commercial matters, expands the concept by saying that besides loans and admissions, courts of non- ordained judges have jurisdiction over cases of sales, purchases and inheritances. A second category of cases included under commercial matters, where jurisdiction is extended to non-ordained judges, deals with monetary matters upon certain relationships. Tosafot states that elaborating on commercial matters they have jurisdiction over the monetary aspects of marriage contracts, cases involving inheritances, and cases involving gifts. Ramban explains that if the court of non-ordained judges did not have jurisdiction over marriage contracts and the debts arising therefrom, the wife would become trivial in her husband’s eyes, since he would be able to divorce her and she would have no Beit Din to turn to collect the sums provided for in her marriage contract. This might in some case close the door to marriage. The second area of judicial functioning wherein the Beit Din of non-ordained judges has jurisdiction involves personal and property damage. One example of personal and property damage is the case of damage caused by “Fire” or “Pit” Damages caused by a pit includes not only the situation where a wrongdoer has dug a hole in a public place, but encompasses all kinds of pitfalls which one might place in public areas. There is also the jurisdiction of the non-ordained judges over cases dealing with loss of earnings and medical expenses. When one maims another, there are five elements of damages for which he may be liable. These are for permanent injury, pain and suffering, embarrassment, loss of earnings and medical expenses. There is a difference of opinion between Rambam (1135-1204) and Asheri (1250-1327) whether the non-ordained judges may award a judgment for these items. Rambam holds that the non-ordained judges may award a judgment for loss of earnings and for medical expenses. Asheri holds they may not. There is an array of authorities both ways in this controversy. Since nowadays there is a tendency to expand the jurisdiction of the Beit Din, I would say that the non-ordained judges should have jurisdiction when a person who has been assaulted sues the assaulter for loss of earnings and medical expenses. In contrast to the preceding dispute, there is unanimity of opinion among the authorities in damage cases where the defendant is the indirect cause of the damages. It is agreed that non-ordained judges do have jurisdiction to render judgments in such cases. A person may cause damage in three ways. First, one may be the direct cause of the damage, that is, that a person or his instrumentality may commit an act which results in injury. For example, setting fire to another person’s house. Second, one may be the indirect cause of the damage, that is a person or his instrumentality may commit an act which will ultimately, in the nature of things, cause injury. Such as burning a promissory note. Third, one may be the remote cause of the damage, that is a person or his instrumentality may commit such an act which in itself does not result in damage but which involves an intervening person or that becomes the cause of the damage, such as hiring a false witness. The Talmud relates a case which illustrates the second type of damage, indirect and which confirms the view that non-ordained judges do have jurisdiction over such cases. (T. Baba Kama 98b) A certain teacher in the Talmud, in his youth burned a note of indebtedness belonging to someone else. He was directed to make good the damages sustained by the holder of the note, who could no longer collect from the debtor since the note, the sole evidence of the indebtedness was destroyed by fire. The burner was liable for the indirect damage he had caused. Since the event occurred when ordination was no longer practiced, one can conclude that the non-ordained judges have jurisdiction over cases arising from indirect damages. 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 Vayeitzei Homepage]
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