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Shabbat Parashat Terumah 5782

Parashat Hashavua: More on Helping the Weak in Beit Din?

Harav Yosef Carmel

Last week we dealt with reconciling the fundamental obligation to relate equally to the two litigants with the idea of helping the poor/weak, explaining that by taking control of the adjudication out of the hands of the sides and specifically their lawyers, “levelling the playing field” is both fair and crucial help for the weak. This week we will learn about the related concept of “p’tach picha l’ileim,” literally, opening up one’s mouth for the mute (Mishlei 31:8).  

This pasuk concludes, “… to the judgment of the ‘sons of passing/switching.’” The next pasuk continues: “Open your mouth, judge with justice, and the judgment of the poor and destitute.” The implication is that the judge should say things that will help specifically the poor. How can one do that while still being faithful to “Do not give preferential treatment to the poor”?

Who are the mute for whom the judge should open his mouth? Rashi connects it to the parallel second half of the pasuk, which he explains as the sons of those who have passed on, i.e., orphans, who lost their father, who could have helped them in such matters. The midrash on these words says that the orphans generally are not as equipped with the skills of making claims and also, in dealing with properties and businesses inherited from their father, they are often unfamiliar with that which went on in a way that would enable them to know the claims to make (Bamidbar Rabba 10:4). Rashi does not explain how making claims on behalf of the orphans would be permitted based on the laws of a judge’s impartiality or how this is related to the next pasuk, which deals with the poor.

The Talmud Yerushalmi (Sanhedrin 3:8) tells that Rav Huna used to speak up for one for whom he knew of a correct claim that would help him in beit din when the litigant himself did not know the claim. According to Rav Huna, the “mute” does not need to be a specific type of person, but anyone who happens not to know a true fact or claim that could help them. But is it permitted to help out anyone – rich, poor, or otherwise?

The Rambam (Sanhedrin 21:11) makes a careful compromise between the concerns. The case in which a dayan is allowed to suggest claims is when he recognizes a cogent claim for a party who seems to know it but has difficulty articulating it because of his emotions or because of a weak intellect. He instructs to get the litigant started in expressing the claim and, importantly, to be very careful about when to do this, so that “he should not be like a lawyer.” This is in line with the Rambam’s approach of weaving together words of Chazal from different places and finding the “golden mean.” The dayanim need to find the balance between the obligation to be totally objective and impartial between litigants despite differences and yet not let one take advantage of the other’s weaknesses.

We pray that our beit din network will always succeed in finding the right balance. This will help us be deserving of Hashem’s making a sanctuary within which He can live among and within us (see Shemot 25:8).

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Nir Rephael ben Rachel Bracha
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