Lesson #431 Not to judge by oneself I recently had a few members of our shul come to see me about a difference of opinion that they had regarding whether they had a valid sale of an item (in this situation an old brooch that one of the parties (ìReuvenî) inherited from his grandmother, and the other party, his cousin (ìShimonî) said he had purchased the item from their grandmother. Both parties were represented by attorneys whom I knew well and they had agreed by themselves that I would decide the matter. I told them I would not sit as a judge by myself but that they could apply to the Israel Center to arrange for our Beit Din to judge the matter. One of them asked me why I could not judge by myself and I told him that I would write a lesson(s) about it in Torah Tidbits. I asked if they read Torah Tidbits and one asked incredulously, ìDoesn't every- body?î In discussing the halacha of one judge deciding a dispute, I shall begin by showing under what circumstances may a one-judge court compel the litigants to appear before him and then discuss the more obvious question of when the parties may confer jurisdiction on one judge and agree to be bound by his decision. The Talmud (T. Sanhedrin 4b-5a) quotes a B'raita which states that monetary actions are judge by three judges, but if an individual is a recognized expert he may sit in judgment alone. The first part of the B'raita, stating that three judges may judge monetary actions, is a reformulation of the first Mishna in T. Sanhedrin that monetary cases are judged by three. The second part, however, introduces the novel concept that a single recognized expert has a status similar to that of three judges. With some exceptions that shall IYH be discussed, the judgment of the individual expert judge is as enforceable as that of a court of three judges, and he may compel the litigants to appear in his court. According to Rashi, this view is reconcilable with the view that the Torah permits one judge to judge monetary actions and that we now have three judges is a Rabbinic enactment. Tosafot disagrees and holds that the view that one judge may judge commercial actions by himself follows the view that according to Torah law three ordained judges were required to judge commercial actions but the Rabbis of the Talmud permitted three nonordained judges to judge commercial actions and when they relaxed the requirement of having only ordained judges they also permitted one expert judge to judge commercial actions by himself. The Talmud before analyzing the jurisdiction of a recognized expert states that Rabbi Nachman and Rabbi Chiya were qualified as recognized experts because they were ìlearnedî and ìcapable of reasoning.î Rashi explains that the term ìlearnedî means that the person learned the law from a qualified teacher, and the term ìcapable of reasoningî means that the person is able to deduce conclusions from his knowledge. Thus in order for a person to be an ìexpertî he must have two qualifications: he must be ìlearnedî and be capable of reasoning.î If a person possesses only one of these two characteristics he is not an expert. To be regarded as a ìrecognized expertî an individual, in addition to being ìlearnedî and ìcapable of reasoningî must also be an experienced judge whose decisions have generally been free from error. This definition of a recognized expert is found in the writings of Sherira Gaon and is quoted by Asheri, Tur, and Nemukai Yosef. Nemukai Yosef also cites a Talmudic passage (T. Sanhedrin 60a) where the factor of experience is mentioned in connection with an expert. Another term that must be defined is authorization. Authorization simply means that an individual has obtained permission from the leader of the Jewish people to judge cases. In the Land of Israel the Nasi presided over the Jewish community; in Babylonia they were led by the Exilarch. Moreover, the Talmud states that the authorization given by the Exilarch in Babylonia is effective in Babylonia and in the Land of Israel. For the purpose of discussion there are four levels of authority. The judges with the greatest jurisdictional scope is the recognized expert. Judges having lesser jurisdictional powers, listed here in descending order of authority are the expert judge, the learned person and the layman. In responding to a question raised in the Talmud whether a recognized expert must have authorization the Talmud cites a case where Mar Zutra the son of Rabbi Nachman who individually judged a case and erred in his decision. When the case came before Rabbi Yosef he ruled that if the litigants had agreed in advance to accept Mar Zutra's decision regardless of whether it would be accurate or erroneous, then Mar Zutra need not make restitution. If, however, the litigants had not agreed in advance to accept his decision regardless of its accuracy then Mar Zutra must make restitution to the party aggrieved by his erroneous decision. From this cited case it is apparent that one who is a recognized expert may judge monetary cases even without authorization, since Mar Zutra did not have authorization. His decision was obviously binding on the parties since the only question was whether or not he had to make restitution for his erroneous decision. The Talmudic text clearly shows that a recognized expert does not require authorization What about the other three levels: the expert, the learned judge, and the layman? Rambam in his commentary of the Mishna describes a recognized expert. He then states that any person who is known in the community as possessing these qualities may judge by himself even if he does not have authorization from the Exilarch (the then political head of the Jewish community in Babylonia). If he is not an expert, his judgment is not valid even if he judges accurately. Moreover, his judgment is invalid even if he obtained permission from the Exilarch. If the expert did not obtain authorization then he has no authority to compel litigants to appear before him, and anyone who was so judged need not accept the judgment. With this background we shall IYH continue the discussion of one judge judging a case by himself. The subject matter of this lesson is more fully discussed in A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Korach Homepage]
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