סמכות רבנית כרך ב, פתח דברRabbinic Authority II, Preface

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1The present volume is the second in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many – rabbinic authority in our halakhic sources. The subtitle, “The Vision and the Reality,” points to the themes being addressed in this work.
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2In addressing the halakhic “vision” of rabbinic authority,1As we know, Halakha distinguishes between the theoretical law, which emerges from an abstract study of the sources of Halakha, and the law that is applied in a particular factual context, i.e., Halakha le-ma’aseh. See Talmud Bavli, Bava Batra 130b and Talmud Yerushalmi, Beitza 2:1 (R. Yohanan’s statements).
In our presentation of “the vision and the reality of rabbinic authority,” we are dealing with the Halakha that was and continues to be applied to actual factual situations, which is memorialized in sifrei psak, restatements of Halakha, and sifrei teshuvot, responsa. However, whereas the “the reality” portion of our presentation deals with the halakhic-judicial rulings of a beit din, “the vision” section focuses upon the decisions of halakhic authorities.
we will focus our attention upon a number of issues that the Torah-observant community has been grappling with during the last fifteen years. How does Halakha envision the professional responsibility of investment brokers vis-à-vis their investors? Is a manager of a “feeder fund” permitted to place money into the hands of a third party?
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3Given that there are brothers who are contesting in beit din (Jewish court) the right of their sisters to receive a share in the inheritance bequeathed by their father, how does Halakha view the propriety of a civil testamentary disposition? Will the estate be divided up as per the father’s instructions, or will the brothers as the Torah heirs receive the lion’s share of the yerusha, the inheritance?
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4With the advent of more incidents of spousal abuse and child abuse being perpetrated by members of our community, we address how the institution of beit din may serve to harness its authority and render monetary awards to the victims of abuse. Furthermore, we address whether there are any halakhic grounds for imputing institutional liability for acts of child abuse that occur under their watch.
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5The final component of my discussion of the “vision” of rabbinic authority is to deal with the role of a to’ein, a rabbinical advocate in the beit din process.
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6The “reality” of rabbinic authority presented in this volume deals with one type of authority, a beit din, which is an institution whose workings and contributions to “the path of Halakha” is unknown by most segments of our community. One of the primary reasons for communal unfamiliarity with this institution can be traced back to a Mishnaic ruling:
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7Upon finishing their deliberations, they would bring the litigants back to the courtroom, and the senior member of the panel would state: Mr. X, you are acquitted and Mr. X, you are liable.2Mishnah, Sanhedrin 3:7
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8In short, the rendering of a beit din decision is limited to identifying the party who is innocent and the party who is responsible. Beit din procedure does not mandate the furnishing of a reason for a beit din judgment. A review of various passages in the Talmud, as well the rulings throughout the ages until this very day, will show a consensus that, generally speaking, a dayan (an arbiter) may issue a psak din (a decision) bereft of any reasoning.3Bava Metzia 84b; Shavuot 30b; Sanhedrin 6b; Shulhan Arukh (hereafter: SA), Hoshen Mishpat (hereafter: HM ) 19:1. However, prior to a beit din’s rendering of its judgment, should a litigant be concerned that a member of the panel or the entire panel be ignorant of Halakha, and thus concerned that an error may be committed in rendering the psak din, or suspicious that a member of the panel or the entire panel are biased or may have been bribed, in certain instances the panel is obligated to provide a reasoned opinion.4Tur, HM 14; SA and Rema, HM 14:1, 4; Sma, ad locum 25; SA, HM 12:2. The right to request a reasoned opinion is not limited to a situation whereby one is summoned by a standing beit din to appear in front of them to resolve a contentious matter. According to certain authorities,5Teshuvot Sha’ar Yehoshua 1–2. Cf. Teshuvot Hatam Sofer, HM 12. such a request ought to be equally acceded to by an ad hoc panel known as a zabla (acronym for “zeh boreir lo achad” – “one chooses one”).6In the absence of a standing beit din or when dealing with a litigant(s) who does not want to appear in front of a standing beit din, each party chooses one judge (known as a “boreir,” “selected one”) and the two arbiters choose a third, and an ad hoc panel is convened to resolve contentious matters between the parties. See SA, HM 13:1–2.
Should the parties fail to agree on a standing beit din to resolve their differences, they are obligated to appear in front of a zabla. See Iggerot Moshe, HM 2:3; File no. 199-61 Beit Din Yerushalayim, in the name of Rabbi Y. Elyashiv and Rabbi N. Karelitz. Whether a divorcing wife must accede to her husband’s request to appear at a particular standing beit din to address end-of-marriage issues is subject to debate. See Pithei Teshuva, HM 14:4; Teshuvot Imrei Yosher 1:38; Iggerot Moshe, HM 1:5. However, the minhag in the NY metropolitan area is that when a couple fails to agree on a standing beit din to resolve their differences, they are obligated to appear in front of a zabla.
Cf. other Poskim (rabbinic authorities) who contend that a defendant isn’t obligated to convene a zabla, however he must be prepared to appear in front of a standing beit din that will determine whether there are merits to the plaintiff’s contention that the complexity of the matter requires the convening of a zabla. Upon review, should the standing beit din concur with the plaintiff’s assessment, the defendant must agree to participate in a zabla. See Teshuvot Avodat ha-Gershuni 47; Teshuvot Ben Porat (Engel) 2:10.
Today, many litigants are questioning a dayan’s credibility, halakhic expertise, and/or business acumen, and therefore, if at all possible, a reasoned opinion should be forthcoming in order to demonstrate that a dayan is not free to decide a case according to his personal whim, but is constrained by sources of halakhic reasoning and canons of interpretation. As Maharah Ohr Zarua and Havot Yair opine, each and every dayan should furnish the grounds for his decision.7Teshuvot Maharah Ohr Zarua 13; Teshuvot Havot Yair 165. In fact, given that there is no halakhic duty to provide a reasoned psak din, R. Yehezkel Landau was highly critical of Torah scholars who nullified another beit din’s psak din without having heard the parties’ presentations and without providing reasons for the grounds for their position. See Ohr ha-Yashar 30.
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9Yet, in contemporary times, due to the fact that halakhic court procedure does not mandate the issuance of a reasoned opinion, it is unsurprising to find that dayanim have generally refrained from giving reasoned judgments. Nevertheless, certain dayanim who serve in the beit din networks of the Israeli Chief Rabbinate and Eretz Hemdah-Gazit located in Eretz Yisrael have submitted reasoned judgments.
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10For over a decade, I served as a dayan on the Beth Din of America, and I continue to appear on various zabla panels, as well as be a single arbitrator for the Hassidic, Modern Orthodox, Sefardic, and Yeshiva communities in the New York-New Jersey metropolitan area. A beit din’s role is to address matters of social interaction, including matters of personal status such as giyur, conversion, and grounds for kefiyat get, Jewish divorce coercion.8A beit din, rather than an individual Jew, is required in order to determine whether there are grounds for coercing the giving of a get. See Tosafot, Sanhedrin 2b, s.v. “le’ba’i”; Sefer ha-Yeraim 164; Teshuvot Maharashdam, Even ha-Ezer (hereafter: EH) 63; Ketzot ha-Hoshen, HM 3; Meshoveiv Netivot 3; Minhat Hinukh 8; Teshuvot Oneg Yom Tov 168; Ohr Sameach, Hilkhot Gerushin 2:20; Hilkhot Mamrim 4:3; Teshuvot Divrei Ta’am (Heft) 128; Teshuvot Kol Eliyahu (Yisrael), EH 22; Teshuvot Tzmach Tzedek (Lubavitch), 262 (9); Teshuvot Avnei Nezer, EH 178:20; Teshuvot Be’er Yitzhak, EH 10:7; Teshuvot Heichal Yitzhak, EH 1; Teshuvot Beit ha-Levi (Soloveitchik), end.
Cf. some Poskim who rule that one Jew is sufficient to determine whether kefiya is proper. See Netivot ha-Mishpat, 3:1; Teshuvot Hatam Sofer, EH 2:64; Teshuvot Ma’aseh Hiya cited by Knesset ha-Gedola, EH 134, Haghot Tur 32; Teshuvot Yehuda (Gordin), EH 51:2; Yad Aharon (Alfandri), EH 134:20–21.
However, even according to the other Poskim who require a panel of three dayanim in order to coerce a get, if the couple agrees that one dayan should decide whether there are grounds for becoming divorced, such an agreement is valid. See File no. 212396-2, Beit Din Petah Tikva, 29 Iyar 5770.
As noted by Rabbi Z. N. Goldberg, all matters of marriage and divorce that relate to issur v’heter, ritual matters such as the validity of a marriage or parenting arrangements, a sole dayan suffices to address the issue. See Lev ha-Mishpat, vol. 1, 149–150.
So, for example, under certain prescribed conditions, a marriage may be voided (“bitul kiddushin”) such as a post-marital discovery that the two witnesses who were present at the wedding ceremony were invalid, and therefore, the marriage never occurred. Such a determination may be rendered either by a panel of three dayanim or by a single rabbi.
Obviously, if the divorce matter entails addressing certain monetary claims and/or mandates witness interrogation, it requires the convening of a panel of three dayanim. See SA, HM 3:1; Perush Ovadiya of Bartenura, Avot 4:8; Teshuvot Yehuda, ibid.; Hatam Sofer, ibid.; Lev ha-Mishpat, ibid.
Whether the requirement of having a beit din of three dayanim for the actual seder ha-get (execution of the writ of Jewish divorce) is min ha-din, according to black-letter Halakha, or due to minhag, practice due to the stringency of dealing with the hezkat issur (presumptive prohibition) of eishit ish (a married woman), is subject to debate. See Teshuvot Hatam Sofer, EH 2:66 and Teshuvot Noda be-Yehuda, Mahadura Tinyana, EH 114.
In numerous instances, I have rendered reasoned opinions in commercial matters and domestic relations. Labor relations such as employment termination and severance awards, business matters such as partnership dissolution, the validity of minhag hasohrim (commercial practice), civil law, contractual agreements and preliminary agreements, the interpretation of contracts, the principle of indemnity in insurance law, ribbit-related issues such as recovery of economic loss of funds, consequential damages, lease, construction and loan agreements, self-dealing in non-profit organizations, and copyright infringement, have been the subjects under scrutiny in many of these cases. In addressing family matters, I have dealt with the grounds for issuing a divorce judgment, dividing up marital assets upon divorce, spousal support, child support and placement, filial obligations to one’s parents, and yerusha issues such as guidelines for drafting a halakhic will and the validity of a civil will and a trust agreement. The cases and materials found in the cases that have been chosen for this volume cover the range of subjects characteristic of all modern legal systems, namely dinei mamonot (civil matters), public and administrative law, family law, and philosophy of law. Given that Halakha is a religious legal system, the impact of issur ve-heter (ritual law) upon the monetary issues under investigation is equally dealt with in our judgments.
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11As members of our covenant-faith community, we are obligated to resolve our differences in a beit din rather than engage in transgression by resorting to litigation in civil court.9Midrash Tanhuma, Mishpatim, piska 6; Gittin 88b; SA, HM 26:1–3 Hence, the parties who appear in a beit din sign a shtar borerut (arbitration agreement), which empowers the panel of dayanim to resolve a matter in contention according to the norms of Halakha.10See Rema, HM 12:7; Sma, ad locum 18. Assuming the beit din process and its decision comply with the rules of secular arbitration law, the judgment will be enforceable in a competent civil jurisdiction in the United States.11See Uniform Arbitration Act, sec. 1. A dayan’s decision must be enforceable. See Mo’ed Katan 14b; Sanhedrin 7b; Ohr ha-Hayyim, Devarim 16:18 in the name of Pesikta; Teshuvot Avnei Nezer, HM 1; Hazon Ish, HM 3:2. Moreover, as a dayan, it is one’s responsibility not only to render a judgment in accordance with Halakha, but equally to ensure that the decision will be enforceable. See Hiddushei ha-Ritva, Mo’ed Katan 14b; Teshuvot ha-Rashba 1:18; Perush ha-Gra, Mishlei 31:9; Teshuvot Hatam Sofer, HM 177; File no. 921426/6, Netanya Regional Beit Din, June 25, 2015. In other words, if a party refuses to comply with the beit din’s psak din or attempts to vacate the ruling in civil court, it is the panel’s duty to issue a decision that he is in contempt of beit din, as well as invoke any mechanisms such as an “ikul,” an attachment of property of the losing party, which will facilitate the enforcement of the psak din. See Tur, HM 73:17; SA, HM 73:10; Sma, SA, HM 73:30; Shakh, SA, HM 73:34; Bi’ur ha-Gra, SA, HM 73:32.
In some beit din arbitration agreements, one finds that the parties agree to waive a civil law that prohibits an arbitrator to have a familial tie to one of the parties. Without addressing the legal validity of such an arrangement, how does Halakha view such an agreement? Generally speaking, in the context of financial matters, the operative rule is “an individual may contrary to what is written in the Torah”. See Kiddushin 19b. Therefore, if the beit din errs regarding a monetary matter, the litigant’s waiver of his right to appeal is valid. Every individual has a right to waive his right to money that he may have been entitled to receive from another person. As such, seemingly such an arrangement ought to be recognized.
However, regarding matters of ritual law (issura), parties are proscribed from negotiating such an arrangement. Given that a violation of secular law is an infraction of dina de-malkhuta dina (the law of the kingship is the law), we are dealing with a matter of issura, and therefore parties cannot agree to engage in an issur, and surely a beit din cannot render a decision that is tainted by issur and proceed to convene a hearing in which a litigant has a family relationship to an arbitrator. See Beit ha-Behira, Nedarim 28a; Bava Kama 113a; Teshuvot Rashbash 212; Beit Shmuel, SA, EH 28:3; Teshuvot Maharshach 2:27, 219; Avnei Miluim 28:2; Teshuvot Hatam Sofer, Yoreh De’ah (hereafter: YD) 314, EH 139; Teshuvot Teshurat Shai, 50.
Obviously, even if civil law would not disqualify the arbitrator from serving on the case, clearly a dayan is disqualified due to his familial ties to one of the litigants. See SA, HM 7:12. Nonetheless, if the dayan, the arbitrator, discloses the disqualification to the parties prior to the proceeding and both parties mutually agree to proceed with the din torah, then there are no grounds for appealing the decision due to the relationship. Regarding the validity of a litigant accepting the opposing party’s undue influence relating to the proceeding, see Teshuvot Maharitz 218; Teshuvot ve-Hanhagot 3:332. Recognizing a party accepting a familial tie between the dayan and the opposing party, see Shakh, SA, HM 7:15.
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12In this volume, there are ten presentations that have been inspired by reasoned opinions handed down as a member of a beit din panel. The format of our presentation is to begin by offering a rendition of the facts of the case followed by the claims of the tove’a (plaintiff) and the reply and counterclaims of the nitva (defendant).12Recently, in various places in the US there have been a few battei din in the format of ad hoc panels that have handed down decisions in monetary matters without hearing the defendant’s reply. Such a decision is null and void. See Teshuvot Lehem Rav 87; Teshuvot Ba’ei Hayyei, HM 1:18.
In fact, if one inquires from a rabbi how to deal with a contentious issue dealing with two fellow Jews, it is incumbent upon the rabbi to either hear both sides of the issue from both parties or to render a decision with the caveat “if the facts are as you presented them to me, the decision is …” See Pithei Teshuva, SA, HM 17:5 in the name of Meil Tzedaka. In other words, a rabbi ought to function like a beit din with respect to “hearing the other side” prior to giving a reply to a question posed to him.
In particular, such a procedural requirement is important when a beit din must determine whether there are grounds to obligate a get. See Kovetz Teshuvot 1:181.
Subsequently, there is a discussion of the halakhic issues emerging from the parties’ respective claims and counterclaims, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties, names have been changed and some facts have been changed and/or deleted.
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13As we mentioned, accompanying these presentations is an examination of the halakhic identity of an investment broker, the propriety of a civil will, contemporary issues relating to domestic violence, and the role of a rabbinical advocate in the beit din process. Chapters one, three, and four have originally appeared in the pages of Tradition and chapter two has originally appeared in Hakirah. All of these essays appear here in an expanded form.
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14Hopefully our presentation will educate our community on the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding the institution of beit din in particular. For those who avail themselves of the services of a beit din, it may be a life-defining moment. As such, it behooves our community to understand the institution, to become attuned to the dynamics of its decision making process, and to perform due diligence in deciding in which beit din to pursue one’s matters.
A. Yehuda (Ronnie) Warburg
27 Tishrei 5765
October 23, 2014

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