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Shabbat Parashat Tazria| 5766

Pninat Mishpat

Mishpat Ve halacha Be Israel - Part V - The Document of Arbitration (IV)
We continue our series on the guiding principles of our recently formed beit din.
 Last time we began to show the halachic basis for the second possibility for the approach to arriving at a ruling. It reads:
 “Possibility 2: Beit din will rule in the matter according to its best judgment, [based on informal criteria] based on the evidence before it.”
 We quoted the Rambam who talks about the ability of a dayan “to judge in monetary matters based on things that his mind “leans” to believe are true and the matter is strong in his heart that it is the case, even though there is no clear proof.” The Rambam, as usual, is based on a gemara.
 The gemara in Ketubot (85a) tells us of a woman who was supposed to swear in Rava’s beit din, as a result of which she would have won the case at hand. Rava’s wife (whom the gemara refers to as “the daughter of Rav Chisda”) told him that the woman was accustomed to swearing falsely.As a result, Rava awarded the opportunity to swear to the other side. In another case, Rav Pappa gave similar information to Rava, but Rava did not accept it. Rava explained that his complete trust of his wife was based on ongoing experience, whereas his trust of Rav Pappa was primarily based on reputation. From here we see that it is possible for a judge to rule based on what he believes without formal proof, but only when the level of belief is complete.
 Another case that is told in that gemara is that of a man who died while holding on to another’s jewels. His inheritors were unaware of the source of the jewels, and their apparent owner gave signs to indicate that the jewels were his. Rav Ami accepted the plaintiff’s claims for a combination of reasons. Firstly, he knew that the deceased was not a wealthy person and was thus unlikely to own jewels of such value. Secondly, the apparent owner provided signs. (The gemara says that the signs are valid only if the plaintiff did not spend a lot of time in the deceased’s house, for otherwise we would have to fear that he had seen the jewels and learned their signs.) So here, we have an example where circumstantial evidence based on the dayan’s personal knowledge provides one element of the evidence upon which the ruling is based.
Although the Rambam accepts the concept of a dayan ruling based on what he believes to be true, in practice he limits its use. In Sanhedrin 24:2 he rules that once there became more and more batei din which lacked either the integrity or the wisdom to rule based on informal evidence, most batei din decided to stop accepting such evidence to avoid abuse of the system. Therefore, in our arbitration agreement, we require the explicit consent of both parties before we will take on the responsibility to rely on the system of basing the ruling on the dayan’s clear sense of the matter.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois
 in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l.
May their memory be a blessing!

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