Lesson # 358 (continuing with...) • Jurisdiction of a Beit Din However, they do have jurisdiction over the principal amount that was stolen and can collect it, because the case (1) is one of indemnification rather than a penalty, (2) is of a type that occurs frequently, and (3) involves a loss of money to the victim of the theft. The next case involving a civil remedy for antisocial conduct is that of robbery. The Talmud in discussing the types of cases that non-ordained judges do not have jurisdiction to judge, states that robbery is one of them. This seems to establish conclusively that non-ordained judges do not have jurisdiction over civil cases arising out of robbery. However, Rambam (1135-1204) and many other authorities including Or Zarua (1180-1250), Smag (1200-1260), HaMachria (1200-1260), Asheri (1250- 1327), Tur (1270-1340), R. Yosef Karo (1488-1575), and Aruch HaShulchan (1829- 1908) cite Talmudic passages which indicate non-ordained judges did judge these cases. How can this apparent contradiction be reconciled? One possible solution offered by Shach (1622-1623) is that non-ordained judges are denied jurisdiction only insofar as the penalty aspect of robbery is concerned; these judges may, however, collect the value of the article that was robbed. This explanation, while certainly granting the widest possible jurisdiction over robbery cases to courts of non-ordained judges provides a somewhat unsatisfactory explanation of the Talmudic passage. A second approach offered by Tumim (1690-1764) and concurred in by Kezot (1745-1813) suggests that when ordination lapsed there arose concerns that robbers, aware of the fact that there were no longer any courts that had jurisdiction over them would rob with impunity. Therefore after ordination lapsed, courts of non-ordained judges were empowered to judge cases arising out of robbery. Similarly, outside of Israel where ordination was never practiced nonordained judges were given jurisdiction over these cases. A third explanation is that of Tosafot (12th-13th centuries). They explain that non-ordained judges generally have jurisdiction over cases of robbery, except for those cases that entail a physical struggle between robber and victim. According to this explanation of Tosafot therefore, the Talmudic passage which restrict the jurisdiction of the non-ordained judges over cases of robbery serves to limit their jurisdiction to some extent, while permitting them to exercise jurisdiction over all other cases of robbery, those that do not involve a physical struggle. A fourth resolution is advanced by N’mukei Yosef (early 15th century). Non-ordained judges have jurisdiction over cases of robbery where there is no force involved, such as wrongfully using a bailed article or denying a bailment. According to this view, if an individual lawfully obtained the bailed property, such as an article deposited with him for safekeeping only, and then wrongfully used the article, or denied that it had been given to him, the individual is considered a robber. In such cases of robbery, the non-ordained judges have jurisdiction. Robbery, then, is not only a case of obtaining possession of someone else’s property by force or the threat of force, but also embraces the wrongful use of someone else’s property under certain circumstances or the denial of the bailor’s title. There are thus four possible explanations what the Talmud means when it states that non-ordained judges may not judge cases of robbery. The preferable view is that non-ordained judges have jurisdiction over all cases of robbery since many codes posit that non-ordained judges have jurisdiction over robbery cases without qualifying the statement. Another case requiring a civil remedy for antisocial conduct is that of the informer. That the non-ordained judges have jurisdiction over this matter is derived from a case in the Talmud. In Babylonia, where there were no ordained judges, an informer was held liable for showing a victim’s possession to robbers (T. Baba Kama 117a). The informer was held to be the indirect cause of the robbery. The authorities are in accord that the non-ordained judges have jurisdiction over such cases, since the payment collected from the informer is considered an indemnification and not a penalty. In the Shulhan Aruch, the case of the informers is the last one listed by R. Yosef Karo. However, in his emendations, R. Moshe Isserles (the Rama) adds a last case, that of refuted witnesses. The testimony of a witness may be impeached in two ways. The first type occurs when his testimony is contradicted by another witness so that the court is faced with conflicting testimony (hak-chasha). The second type of impeachment arises when his testimony is refuted (hazama). This refutation takes place when a second group of witnesses refutes the testimony of the first witnesses by testifying that the first witnesses were in another place when the incident in question occurred and therefore could not possibly have witnessed the alleged occurrence. The refuted witnesses are designated as Zomemim. By using the latter term in discussing the jurisdiction of non-ordained judges, Rama is referring only to the second type of case, that is a case of refuted witnesses (Zomemim). The criterion for allowing non-ordained judges to exercise jurisdiction over cases of refuted witnesses is whether the party against whom these witnesses testified actually paid money on the judgment that was obtained on the strength of the false testimony. In such a case, the refuted witnesses are the indirect cause of that party’s monetary loss, if the party who collected the money does not make restitution or has left the jurisdiction. However, the non-ordained judges do not have jurisdiction over cases where the refuted witnesses, by their testimony, did not assist in obtaining a judgment requiring one to pay money. But rather helped to exonerate from liability one who should have rightfully paid. The testimony of the refuted witnesses in such a case is held to be only the remote cause of the party against whom they testified not being able to obtain a money judgment. Rama’s holding that non-ordained judges have jurisdiction over cases of refuted witnesses can be traced to a holding of Chananel Gaon (990-1055). Chananel Gaon’s view is also cited by Or Zaru'a (1180-1250), Mordecahi (1250-1298), Hagahot Asheri (14th century), Lebush (1530-1612), and Aruch HaShulhan (1829-1908). 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 Vayishlach Homepage]
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