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 Shabbat Parashat Vaetchanan| 5766P’ninat MishpatMishpat V’halacha B’Yisrael- part XXII
The Limitations of Today’s Dayanim / Harav Yedidya Kahane
Over the last weeks, we have discussed the source of the authority of dayanim who are not semuchim (those with full ordination, who no longer exist). We saw the need for and the workings of shlichutayhu ka’avidinan (=shl-ka), meaning that we do the agency of semuchim. However, even with this concept, not all cases can be adjudicated by non-semuchim, as we will now discuss.
The gemara (Bava Kamma 84b) mentions and explains that non-semuchim cannot operate in areas such as damages that a person inflicts on another or payments for embarrassing another. The gemara says that shl-ka was instituted only in common cases that involve a loss of money. Damages of one person by another are not common, and embarrassment does not involve loss of money.
The rationale is as follows. The authority that non-semuchim were given was based on the realization that without the ability for adjudication, society would be in threat of bedlam. However, if there would not be adjudication for uncommon cases, society as a whole would not be severely affected. The same lack of urgency applies when the matter does not involve a loss of money.
The above is true even in regard to standard payment, as opposed to kenasot, punitive payments. Kenasot areidentifiable as payments that do not directly correlate to the amount of money lost by the plaintiff. One example is the double pay that a thief pays. The Torah writes in that regard: “He who elohim finds guilty shall pay double to his counterpart” (Shemot 22:8). “Elohim” in this context does not refer to the Divine but to semuchim. (The root means the strong (see Bereishit 31:39)). In such a case, shl-ka does not apply, as the gemara (Bava Kamma 15b) says: “Now that you say that half payment is a kenas, one cannot extract payment in Bavel” (where there are not semuchim).
The Sha’ar Hamishpat (1:1) wonders what would happen if the two litigants agreed to adjudicate matters over which non-semuchim do not have authority. He concludes that one needs to distinguish between the different areas in which non-semuchim lack authority. In matters of regular monetary payments where shl-ka was not instituted, the ruling of non-semuchim with the litigants’ approval is valid. However, in penalty payments, the litigants’ acceptance does not change the matter, and the ruling has no effect.
This latter idea is understandable based on our introduction. Shl-ka creates public agreement to accept the non-semuchim in cases of social need. Similarly, private agreement between the litigants can similarly extend the court’s authority to additional monetary cases. However, by kenasot the need for semuchim is more fundamental, and it is impossible to create an obligation without semuchim. This is similar to the halacha that one who admits to owing a kenas is exempt. In other words, a kenas must be created by an authorized beit din, not by individual design.
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