Sunday, March 07, 2010

Choosing Judges; Sitting with Judges and Table Manners

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The Tur writes that any judge who knows that a different judge is a thief or otherwise evil should not sit in judgment with him. And this is how the pure-minded people of Yerushalim conducted themselves. They would not sit in judgment unless they knew who was sitting in judgment with them.

The Perishah asks that the Tur’s language is not precise, for it would seem from his words that the pure-minded people of Yerushalayim would not sit in judgment except with people whom they knew to be thieves or evil!? And behold, in truth, they would not sit with people about whom they were even uncertain about their character! The Rambam’s language, however, is more precise.

The Perishah explains the Tur as follows: There is a strict prohibition against sitting in judgment with someone who is known to be a thief or otherwise evil. This is not merely pious conduct, but rather, it is something which is forbidden to do. There is a level higher than that, and that is not to sit in judgment with people that you are unsure about. This is how the pure-minded people of Yerushalayim would conduct themselves. Even if they did not know for certain that the other person was evil, they still, as an act of righteousness, would not sit with them.

The Bach reaches a slightly different conclusion. He states that an ordinary person should not sit with others in judgment only if he knows that they are evil; however, if he does not know, there is no concern whatsoever. However, prominent people, such as the pure-minded people of Yerushalayim, they should not sit in judgment with others unless they are certain as to their character.

The Aruch Hashulchan writes l’halachah that since we can presume that all Jewish people have a fine character, there is no reason to assume that someone is a thief, and therefore, there is no prohibition against sitting in judgment with someone that you do not know. It is regarded as “hiddur” to be wary of such people.

The Shvus Yaakov holds that if one of the judges does not know the other two, he should not sit in judgment with them; however, if two of the judges know each other, but they do not know the character of the third, there is no prohibition against sitting in judgment with him, for the majority of the Beis Din is proper. This is the case that the pure-minded people of Yerushalayim were strict about; they were extra careful even if it was only one of the judges that they were uncertain about.

Each Litigant Chooses a Judge

By: Meoros HaDaf HaYomi

Our Mishna addresses one of the basic rules pertaining to a beis din: One litigant chooses a dayan, the other chooses another and both dayanim choose a third. The rule applies to financial or property cases and describes the method of composing the required beis din of three dayanim. Nonetheless, the rule is characterized by a serious lack of clarity. The Panim Meiros already protested several hundred years ago: “I have seen a scandal in our generation regarding this rule: Each litigant first explains his claims to the dayan he chooses and, moreover, promises him a certain amount if he acquits him…and justice becomes distorted and the light of the Torah is extinguished and the name of Heaven is profaned” (Responsa Panim Meiros, II, 159).

Those learning the beginning of Sanhedrin may wonder: We are told, after all, that three dayanim may judge a defendant against his will (Tosefos 5a, s.v. Dan), so how can the above rule be applied? Anyone may summon another to a beis din and the defendant, willingly or not, must accept the judgment of that beis din. This question caused the misunderstanding that a beis din of which two dayanim are chosen by the litigants lacks the authority of an ordinary beis din. Furthermore, each litigant tries to choose a dayan he has known well and before the hearing he sets forth his claims to convince him to agree with him even though the dayanim are forbidden to hear only one side.

The Rishonim (Chidushei HaRan, Hagahos Ashri) explain that a beis din may judge a defendant against his will only if he refuses to appear for a din Torah. If, however, he agrees to appear, each litigant chooses a dayan and the two dayanim then choose a third. Still, asserts the Rosh (#2), we should not think that the dayanim chosen by the litigants are meant to act in their favor. Rather, the possibility to choose dayanim is intended to perfect a true verdict as each dayan presents every possible claim to justify his litigant that would otherwise escape the attention of the beis din. Hearing all the claims, the beis din can then issue a true verdict. The Rosh adds that if a litigant insists on appointing an unsuitable dayan, the beis din ignores his request and forces him to be judged by themselves or by a beis din they appoint. In other words, the rule of litigants choosing dayanim is not meant to effect any kind of arbitration. A beis din chosen by litigants has full authority and its dayanim must be as qualified as any others.

Despite all the above, the Remo asserts (C.M. 3:1) that wherever there is a regular, established beis din, a defendant must not refuse to be judged by them or demand to choose his own dayan. The Acharonim explain that the Remo refers to towns whose residents have accepted the authority of certain dayanim as a permanent beis din with no conditions. This acceptance of authority excludes any permission to refuse to be judged by them (Tosfos Yom Tov on our Mishna; Aroch HaShulchan, ibid, 2). In our era HaGaon Rav Moshe Feinstein zt”l referred to the city of New York (Responsa, C.M. 2:3) and ruled that the residents had not appointed permanent dayanim, “especially being that there are many rabbinical associations which have never convened to jointly appoint even one dayan; if a litigant wants to choose his own dayan, we must therefore obey his wish.”


Table Manners

The Gemora mentions that the pure-minded people of Yerushalayim did not enter to eat a meal unless they knew who would be eating with them. Rashi explains that it was considered degrading for a Torah scholar to eat with an unlearned person.

The Be'er Heitiv (Orach Chaim 170 s.k.) cites Mateh Moshe who holds that this halachah applies even by a seudas mitzvah. The Biur Halachah cannot find a source for his ruling, and notes that we don't refrain from doing so. Furthermore, he maintains that even the Mateh Moshe would agree in an instance where there is a benefit for the participants when a talmid chacham enhances a seudah with his presence, then, he may do so. Also it is possible that the Mateh Moshe would concur that a talmid chacham may participate in a regular seudas mitzvah, if a) there are other talmidei chachamim there as well, or b) if he is sitting by himself (he deduces this from the above mentioned Rashi who states that it is g’nai for a talmid chacham to sit next to an am ha'aretz at a meal).

The reason for this halachah is because a talmid chacham eats in a more refined manner than the am ha'aretz. This is not simply a matter of finesse, rather, there are explicit halachos that are mentioned in the poskim (aside from the halachos that the Shulchan Aruch in siman 170 speaks about), on how to conduct oneself during a meal.

A small sampling:

1. Talking while eating is discouraged (Mechaber ibid 170:1).
2. The proper amount to eat at a time is less than a k'beitzah (ibid 170:7).
3. When drinking, the entire cupful should not be consumed in one gulp, rather it is proper to finish it in two swallows (ibid 170:8).
4. It is improper to take a bite out of the food and then leave it on the table (ibid 170:11).
5. One should not eat or drink while standing (Be'er Heitiv ibid citing Rokeiach).
6. It is proper for the host to show the guests where the restroom is (M'kor Chaim).
7. One should not lick his fingers during eating (Rokeiach).
8. It is impolite to wolf down the food, rather, eating should be done slowly (Ben Ish Chai).