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Shabbat Parashat Mishpatim 5782

Parashat Hashavua: May a Dayan Help the Poor in Beit Din?

Harav Yosef Carmel

The obligation to relate equally to the two litigants is fundamental in the Jewish system of justice. As the Torah writes in our parasha: “Do not give preferential treatment to the poor in his quarrel” (Shemot 23:3). The Rambam writes: “So too, in monetary cases, we do not have mercy on the poor, as we should not say, ‘He is poor and the other litigant is rich and obligated to provide for him – I will have him win in court and it will turn out that he will be supported in a honorable way.’ About this the Torah warned ‘…’” (Sanhedrin 20:4). On the other hand, the Torah also warns in our parasha: “Do not take advantage of the convert … every widow and orphan you must not afflict …” (Shemot 22:20-23).

We will now try to explain in brief why the halachic system of litigation is preferable to the adversarial system, which is practiced in the government courts in Israel (based on the model of the British system). One of the advantages of our system relates to the “weaker party.”

Our halachic system is based on an investigation of the claims carried out by the dayanim. They are the ones who ask questions of the litigants and, of course, the witnesses and the experts who are brought in to help clarify the truth. While we allow lawyers and rabbinical lawyers, their impact on the ruling is miniscule. It is the dayanim who call in an expert witness to give a professional report on, for example, an engineering issue regarding a building dispute or an accountant regarding a case of a retirement fund. Beit din is the one who pays these experts (through money it collects for this purpose from the sides). This is cheaper than the sides hiring experts to support their side, and, more importantly, it arms beit din with a reliable opinion from an objective source.

In an adversarial system, the lawyers interrogate the two sides, as well as the witnesses. When there is a need for an expert, each one hires one to provide corroboration for his case and pays him to be subjective in his favor. While the judge oversees the case, he is not permitted to investigate himself.

Therefore, in the British system, the quality of the lawyer has a tremendous impact on the case’s result. If one side is rich enough to afford a more expensive, which usually means more capable lawyer, or a more convincing expert, it gives him a tremendous advantage. When beit din runs things, it can ensure equal footing for the two sides, which is a net advantage to the poor person. Thus, one can help the poor without giving them an advantage, just by holding down the disadvantage.

We end off with a midrash that connects Parashat Mishpatim to Parashat Yitro and stresses the importance of a proper judicial system in our lives as servants of Hashem: “Parallel to the Ten Commandments, Hashem gave ten negative commandments regarding jurisprudence… and since Hashem commanded Moshe about jurisprudence, therefore all of the prophets spoke and warned Israel about them” (Pesikta Zutrata, Shemot 20:23).

We pray that our beit din network, Eretz Hemdah-Gazit, will sanctify Hashem’s Name in all that it does and will hold an ever-stronger place in the legal apparatus of the State of Israel and the Jewish Nation.

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Dedication

We daven for a complete and speedy refuah for:

Nir Rephael ben Rachel Bracha
Yisrael ben Rivka

Rivka Reena bat Gruna Natna

Arye Yitzchak ben Geula Miriam

Neta bat Malka

Meira bat Esther

Together with all cholei Yisrael

Hemdat Yamim is dedicated

to the memory of:

Those who fell in wars

for our homeland

 

Rav Shlomo Merzel z”l
Iyar 10, 5771


Rav
Reuven & Chaya Leah Aberman z"l
Tishrei 9
,5776 / Tishrei 20, 5782

 

Mr. Shmuel & Esther Shemesh z"l

Sivan 17 / Av 20

 

Mr. Moshe Wasserzug z"l

Tishrei 20 ,5781

 

R' Eliyahu Carmel z"l

Rav Carmel's father

Iyar 8 ,5776

 

Mr. Zelig & Mrs. Sara Wengrowsky

Tevet 25 5782 / Tamuz 10 ,5774

 

Rav Asher & Susan Wasserteil z"l
Kislev 9 / Elul 5780

RMeir ben

Yechezkel Shraga Brachfeld z"l

&

Mrs. Sara Brachfeld z"l

Tevet 16 ,5780

 

RYaakov ben Abraham & Aisha

and

Chana bat Yaish & Simcha

Sebbag, z"l

 

Rav Yisrael Rozen z"l
Cheshvan 13, 5778

 

Rav Benzion Grossman z"l
Tamuz 23, 5777

 

R' Abraham Klein z"l

Iyar 18 ,5779

&

Mrs. Gita Klein z"l

Av 4

 

Rav Moshe Zvi (Milton) Polin z"l
Tammuz 19, 5778

 

R' Yitzchak Zev Tarshansky z"l

Adar 28, 5781

Nina Moinester z"l

Nechama Osna bat Yitzhak Aharon & Doba

Av 30, 5781

 

Hemdat Yamim
is endowed by
Les
z"l  & Ethel Sutker
of Chicago, Illinois
in loving memory of
Max and Mary Sutker
& Louis and Lillian Klein z”l

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