The Court Must Judge Monetary Claims

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by R. Gidon Rothstein

Parshat Mishpatim: Courts’ Obligation to Judge Monetary Claims

Sometimes a mitzvah calls on the Jewish people to act in a certain way, and in some of those cases, the courts are the ones who represent the nation. For these kinds of mitzvot, there are details understood to be Biblical as well, but it is the overall obligation that constitutes the mitzvah. Such is the case in 22;8, where the Torah describes one person claiming another has his/her item, and the verse tells us ad ha-elohim yavo devar sheneihem, their claims need to be brought to court.

In Obligation 246, Rambam phrases it as a commandment to judge claimants and defendants. Sefer Ha-Hinuch includes in the purview of the commandment the adjudication of claims about loans, items entrusted into others’ care, claims of theft, and so on.

The verse refers to a claimant saying ki hu zeh, for this is it, for the Mechilta the Torah’s way of setting the rule of modeh be-miktzat, the burden of an oath placed on a defendant who denies only part of a plaintiff’s claim. Rambam notes the Mechilta, Sefer Ha-Hinuch adds this is the only time the Torah obligated a defendant to swear to back up his/her claim. Had the defendant denied the event occurred or claimed the account had been settled (s/he had repaid the loan, returned the entrusted item, e.g.), his/her being kofer ba-kol, completely rebuffing the claim, removes any Biblical oath.

Shomrim, where one person takes care of an item for another, also must take oaths by Torah law. Baba Kama 106b limits the ki hu zeh requirement of partial admission to loans; where the person watching, renting, or borrowing an item claims it was lost in ways s/he is not liable to repay (such as be-ones, an event beyond his/her control), the Torah also requires an oath.

(We are taking the phrase two ways, it seems. I think since the verse is about shomrim, tradition took the ki hu zeh to refer to the item entrusted that is now gone. For such cases, there is always a delineated ki hu zeh, because the shomer agrees s/he was entrusted with something, even if s/he now denies any responsibility for its loss. The Mechilta applied the verse to all claims, as long as there is a ki hu zeh, an agreed item, for which we need the defendant’s partial concession.)

Sefer Ha-Hinuch lists a few other rules, such as the minimum value of what the defendant conceded and of what the plaintiff was still claiming (a perutah concession, the least amount of money the Gemara thought meaningful, and two ma’ah, sixty-four perutot, of claim). Less than that would only involve a Biblical oath if the plaintiff had one witness or the claim was about a whole item rather than money. Whole items have inherent value, so their monetary status matters less.

Just Some of the Details

Sefer He-Hinuch does not intend to lay out all the rules of mitzvot, ever, but here while he is telling us where we can find these rules in the Gemara, he gives “some” examples. In doing so—and I’ll share only part of his list in a minute—he reminds us of the necessary intricacies of any legal system’s approach to civil law. The mitzvah we are discussing is the overall obligation to set up a system that deals with these claims, with many of the details not specifically legislated by the Torah.

Were we to know of a Jewish community where Jews did not feel they had courts where they could turn for justice in such cases, it would pose the peril that community was neglecting this obligation.

Ok, some of his examples: what kinds of concession count as an hoda’ah that leads to a Biblical oath (such as whether items that can be quantified in some way, measured, weighed, or counted, have their own rules, whether the concession must be about the same type of item as the original claim), how courts evaluate a litigant’s confessions, the rules for various types of shomrim (guards as opposed to renters, for example), when Hazal instituted oaths, when a litigant has the right to swear and take an item (as opposed to the defendant’s oath ending a claim), when a person is considered untrustworthy (and what sins render him/her untrustworthy) and cannot take oaths a court will respect, when a litigant can reverse the oath (tell the other litigant s/he does not wish to swear, but the other can win the case if s/he makes the oath), when repentance restores trustworthiness.

There are also rules for claims, such as migo, courts’ practice to believe a particular claim because had the litigant wanted to lie, s/he had a better option; or the difference between bari, a definite claim or denial, and shema, an uncertain one.

Landed property generally is not amenable to oaths, meaning courts must decide when produce has matured enough to be considered not part of the land. Like land, deeds are not subject to oaths, so loans with deeds have their own rules of correct execution, for example, and/or what details are critical to a valid deed).

Loans can also raise questions of whether we believe a claim to have paid it off elsewhere than where it was borrowed, whether we allow it to be paid off when the creditor is not present, the rules of loans with collateral, including when the collateral is lost, types of collateral, or liens on property.

And more. Listing further details study won’t add anything, but just this list shows the fulfillment of this mitzvah lies n0t in the details themselves, but in being sure we have judges competent in these matters, such that when Jews conflict, they have an outlet to find out halachah’s view.

The mitzvah applies in all places and times throughout Jewish history. A court that neglects to impose halachic justice has failed at this obligation, but Sefer Ha-Hinuch pauses to emphasize the seriousness of the lacuna, because a functioning legal system is vital to society’s workings. Avot 1;18 tells us, the world stands on truth, justice, and peace, and this court is withholding one of the three.

[That’s how he puts it; I think lack of justice might hurt the pursuit of truth and peace as well.]

Noahide Courts

In addition, non-Jews must observe their version of this mitzvah, dinin, one of the seven Noahide commandments, a sign of how necessary courts are to any human society.  Minhat Hinuch tells us he will largely refrain from discussing substantive issues of the mitzvah, because to do so he would need to recapitulate much of the Gemara, and he is set on brevity [the comment reflects a paradox about the work, its being long and dense, full of intricate halachic discussions, yet its author, R. Yosef Babad, over and over points out where he is not writing about this because it needs its own work, is writing only briefly on that, etc. A work that goes on at length yet makes clear its author’s disciplined dedication to limiting himself].

He does pause over Sefer Ha-Hinuch’s saying this applies to all humanity, because Rambam and Ramban disagreed about the definition of dinin. Rambam seems to think it means to have courts to judge only the other Noahide laws, the only civil law of which is gezelah, brazen theft. Ramban thought it required setting up a complete civil law system. (I think Minhat Hinuch is most surprised at Sefer Ha-Hinuch writing this unequivocally, since he usually follows Rambam, and only then points out where Ramban disagrees).

Noahide law also differs from halachah in some places, Minhat Hinuch reminds us. There is no explicit prohibition against non-Jews lying under oath, and the role of oaths in their system is unclear. He assumes Noahide law does not recognize the lower limit of a perutah, thinks halachah views them as caring about all amounts of money. He hopes to address the many issues of non-Jews in a special monograph (to which he referred five times in the mitzvot in Mishpatim, once in Parshat Devarim, and once in Va-Ethanan; I do not know of its current existence).

Once on the topic, he says all these rules also apply differently to heresh, shoteh, ve-katan, deaf-mutes (who are not considered competent adults in halachah, a topic of its own), those not in their right minds, and minors. Each have their own rules for monetary issues, which courts must address.

Aruch Ha-Shulhan: Practice Focused

Like last week, Shulhan Aruch and Aruch Ha-Shulhan did not focus on the broad outlines of the mitzvah or its definition, they jumped into specific cases. Aruch Ha-Shulhan opens Hoshen Mishpat 88 with the verse the Gemara gave as the source of the requirement for at least two kessef before a claim counts, Shemot 22;6’s linking money to items. Just like the minimum of plural items is two, the money must be two. Similarly, just as items have inherent significance (the reason they do not need a minimum value to qualify as a claim), the money must be important (the reason we do not say two perutot but two ma’ah, a more significant coin).

He says these both are rabbinic inferences, because the verse throws in money or utensils where it was unneeded. Maybe so, but we started this series with Rambam’s view that rabbinic inferences from Scripture are prone to reexamination by a later Sanhedrin even without any claim to be greater in wisdom and number. Here, Aruch HaShulhan is telling us the inference teaching the minimal amount of a financial claim might be revisited by a future Sanhedrin.

Aruch Ha-Shulhan says the idea of modeh be-miktzat is also derasha, an inference. At the end of the paragraph, though, he says all of this is a tradition, an oral reading going back to Sinai. He does not say clearly what is included in “all of this,” so we are left to consider how much of the readings of those verses were given along with the text, and therefore immutable, and how much not.

perutah is a half a hair of pure silver, making two kessef thirty-two hairs of silver. He says the translation to their coins was uncertain (another place where the Sanhedrin has what to say), but reports the widespread custom of judges of his time, in Russian coins.

I doubt more detail or examples would enlighten; they might obscure. I hope we are reminded of the mitzvah necessity of setting up a functioning system of financial law, some specifics Biblically mandated, some a matter of rabbinic inference, some of rabbinic assumptions. Whatever the sources, the Torah is requiring Jews be guided by Torah law and its outgrowths in settling financial disputes.

Because that’s the way to keep society going, as Avot told us.

About Gidon Rothstein

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