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Shabbat Parashat Shoftim 5782Parashat Hashavua: Kim Li? Litigation and Justice Must Go Hand and HandHarav Yosef CarmelOur parasha opens with three operative commands: place judges throughout the land; judge the people righteously; pursue justice (Devarim 16:18-20). How do we implement these principles in our beit din network, “Eretz Hemdah- Gazit”? One of the most important rules in monetary Halacha is hamotzi mei’chaveiro alav ha’re’aya (see Mishna, Bava Kama 3:11). Whoever is in possession of the money in dispute has a strong advantage over the one who is trying to claim it away from him. Therefore, the plaintiff needs to bring proof, because if a doubt will remain, the defendant will win in very many cases. The Rama (Choshen Mishpat 25:2) expands this to doubts not only on what happened but also to disputes on relevant halachic opinions. The fact that a majority of poskim rule in the plaintiff’s favor does not necessary enable him to extract money from the defendant. The Shach (Tokfo Kohen 123) takes this shockingly far. It is enough for a small number of poskim to rule in a manner that the money’s possessor can keep it. This idea is called “kim li” – allowing the defendant to say, "I am sure the small minority who would have me win are correct." Some of the greatest rabbis protested the implementation of kim li. Rabbi Yonatan Eibshitz (Urim V’Tumim to Tokfo Kohen 123-124) argues that if we follow the Shach: “Heaven forbid, the Torah will not be followed, and we will have a situation where whoever is stronger will prevail ... if so, poskim and authors toiled for nothing, bringing proofs and analyzing in depth, because the one in possession can always claim kim li, and Heaven forbid, our Torah will be hefker.” Rav Yaakov Chagiz (Shut Halachot Ketanot I:182) used even stronger language: “If so, you have undone all of choshen mishpat … I say about such a case: How long will you go about destroying all of Israel’s money and giving a hand to criminal elements? I am afraid that over time all of the work of the gemara will be undone, as people will say: Kim li like this Tanna or this Amora.” We add to the question. Would someone who fears Hashem be so lenient to rely on the opinion of a tiny minority of poskim in the laws of kashrut?! Let us return to our parasha’s p’sukim. The Torah commands us to appoint judges and emphasizes: “Justice, justice shall you pursue.” Many quills have been broken trying to explain the repetitiveness. We suggest that the Torah is stressing that we need to build a system of justice that will promise justice that is realistic for the situation. Batei din who embrace the Shach’s approach will remain empty. Who will sue in beit din when the defendant can win by finding one or two agreeable opinions? Top of page
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We daven for a complete and speedy refuah for: Nir Rephael ben Rachel Bracha Arye Yitzchak ben Geula Miriam Neta bat Malka Meira bat Esther Together with all cholei Yisrael Hemdat Yamim is dedicated to the memory of: for our homeland Rav Shlomo Merzel z”l
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 Mrs. Sara Wengrowsky bat R’ Moshe Zev a”h. Tamuz 10 ,5774 Rav Asher & Susan Wasserteil z"l R' Meir ben Yechezkel Shraga Brachfeld z"l & Mrs. Sara Brachfeld z"l Tevet 16 ,5780 R 'Yaakov ben Abraham & Aisha and Chana bat Yaish & Simcha Sebbag, z"l Rav Yisrael Rozen z"l Rav Benzion Grossman z"l R' Abraham Klein z"l Iyar 18 ,5779 & Mrs. Gita Klein z"l Av 4 Rav Moshe Zvi (Milton) Polin z"l R' Yitzchak Zev Tarshansky z"l Adar 28, 5781 Nina Moinester z"l Nechama Osna bat Yitzhak Aharon & Doba Av 30, 5781 Rabbi Dr. Jerry Hochbaum z"l Adar II 17, 5782 Mrs. Julia Koschitzky z"l Adar II 18, 5782 Mrs. Leah Meyer z"l Nisan 27, 5782 Hemdat Yamim |