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Shabbat Parashat Shoftim 5776

Ask the Rabbi: Answering Monetary Questions part I

Rav Daniel Mann

Question: [We present a discussion that emerges from a set of questions.] People often ask us questions about financial disputes they are involved in. We respond that we do not get involved in practical monetary situations that affect another side whose view we have not heard. Most take this in stride. Others take offense. One pointed out that there are monetary discussions on our site. So, I decided to discuss our approach in more detail.]

 

Answer: Our policy is based on the Rama (Choshen Mishpat 17:5, based on the Rashba III:98 and the Rivash 179). The Shulchan Aruch (ibid.) says that one may not listen to the claims of one litigant while the other side is not present. The Rama says that this refers to one who is a dayan in this case. However, he continues that a talmid chacham should never express even a tentative opinion (“if indeed …”) on a case without hearing both sides.

The first reason cited is that the presentation might teach the litigant which claims to make, including false ones. Our contemporary experience teaches us the following. While the sources speak of falsehood, it is not limited to premeditated lying, but includes describing the nuances of a gray situation in a slanted manner. Even honest people can do this under the pressure of litigation, where significant money and stature are on the line.

The Rama also explains that due to what surfaces in the trial, the ruling may appear to contradict the talmid chacham, which could discredit him. We note that the concern is not just for the non-dayan’s credibility. Our beit din’s staff have received post-ruling complaints: “I asked my rabbi about the case, and he said beit din was wrong, so the dayanim are either incompetent or biased.” Of course, two rabbis can have different views without either being incompetent or biased, which is why we bother having three dayanim. The disgruntled litigant does not care that we heard and interrogated both sides and spent dozen of hours analyzing and researching, while he may have asked his rabbi while he was folding up his tefillin. (Since we offer an option of appeal (with an added fee to avoid it being automatic), we do not object to a litigant showing our ruling to a talmid chacham for his advice on whether it is worthwhile to appeal.) The point is that even provisional statements made prior to adjudication can be used by otherwise respectable and respectful people to decide that they are right and that there is something wrong with anyone (litigant, dayan, or whoever) who does not agree with what they understood from what they were told.

Our experience makes us concerned about another issue that the Rama does not discuss (it is likely that he was not addressing that case – see part II). There are times that the sides prefer to avoid the trouble of litigation, which we applaud on fundamental and practical grounds. The well-intentioned “non-litigant” may ask us or another rav the question, as he honestly but subjectively sees it, and may even be willing to inform the other side if we said he was wrong. However, if we answer that “based on your description, you are right,” since he knows that he is not a liar, he is likely to say, “I asked a dayan, and he said I am right.” Now, the other side is at a disadvantage. Is he to question the dayan or call his neighbor, friend or business partner a liar? Will he know and choose to say: “If the dayan did not hear me describe the case in my own words, he could/should not have said, ‘You are right’”?

Two of our “hats” are: an “Ask the Rabbi” service, where we try to be responsive to all, and a beit din, where we make very strong efforts to be ethical, impartial, and cautious. (One fear is that our present anonymous querier will be our future litigant.) The correct policy, in our opinion, is to almost always refuse to answer questions of one side that have a hint of being related to practical dispute resolution. We regret that some people are resentful; that is part of the price of being principled.

Next week we will discuss some exceptions to this rule.
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