Yeshiva s Iyun Hal acha

Hilchos dayanim Progr am

Hilchos dayanim
Shiur 1

All rights reserved to Harav Yitzchok Oshinsky

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In Honor of
S. David and Naomi
Hoffman
In Honor of
Irma Kramer
in loving memory of
Justice Herbert Kramer

Shining examples of honesty.

Hilchos Dayanim Shiur 1

Introduction
Tur until
Siman 1 Seif 1
Gemora Makkos 7a
Gemora Gitten 88B
Bais Yosef

Written by Dayan Yitzchok Oshinsky Shlita

Dayan Beis Din Rabbani Haifa

Table of Contents:

1) Introduction
2) The method of learning
3) The commentators on Shulchan Aruch Choshen
Mishpat
4) The importance for a Dayan to know these halachos
extremely well
5) Not to be involved with matters of gitten or
kiddushin without proficiency in those halachos
6) The introduction of the Tur to hilchos dayanim
7) What does the world stand on, and on what does it
exist?
8) The Dayan holds up the world
9) The forefathers of our nation were also involved
with judgment
10) The punishment of one who does not judge
righteously
11) The benefits of a true judgment
12) The warnings of the Torah to judges
13) Siman 1 seif 1 the words of the Shulchan Aruch
14) With which power do judges rule nowadays?
15) Are judges allowed to judge all matters nowadays?
16) Summary

Hilchos Dayanim - Shiur 1

Introduction
Learning Dayanus is an extremely long, so we will divide it into many parts so that it will
be easier for the participants.
We will divide the curriculum according to topics, and each topic will consist of a certain
amount of shiurim.
Learning dayanus will include Shulchan Aruch Choshen Mishpat (three volumes, based on
the old standard edition) and Shulchan Aruch Even Haezer (one volume, based on the old
standard edition).

The method of learning

The way we will learn in these shiurim is as follows:
We will learn each se'if following the order of the Shulchan Aruch. This includes the source
of the halacha (usually the Gemorah or the Rishonim). We will earn the opinions of the
Rishonim about this halacha, the opinion of the Tur, and of the Bais Yosef. We will also
cite the ruling of the Shulchan Aruch and explain it based on the opinions of the Achronim,
the commentators on Shulchan Aruch (which we will list later on.)
As you already saw on the first page of this shiur, we will have a table of contents where
we will list all the topics that will be discussed in the shiur. This will help the participants,
as they will already know in the beginning of the shiur which topics will be discussed in
that shiur.
As you will also see in this shiur, in the beginning of each se'if that is learned in that shiur,
we will quote the words of the Shulchan Aruch, and only after that will we begin explaining
them.
At the end of each shiur we will have a summary of the halachos, or review questions
instead of a summary.

The commentators on Shulchan Aruch Choshen Mishpat

These are the commentators on Shulchan Aruch that we will learn (completely or partially)
in these shiurim on dayanus (the part of Choshen Mishpat):
Sefer Meiras Einayim known as the Sma, a key commentator on Choshen
Mishpat, written by Harav Yusha Volk.
The Sifsei Cohen known as the Shach, also one of the key commentators on
Choshen Mishpat, written by Harav Shabsai ben Harav Meir HaCohen of Vilna.

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The Ba'er Hetev, (not the same one as in Even HaEzer) written by Harav
Zecharyah Mandel, Av Beis Din of Belz.
The Pischei Teshuva (also found in Even Haezer), a collection of responsa
from various Achronim written by Harav Avrohom Tzvi Hirsh Eisenstat, Av
Beis Din of Itiyan.
The Keztos Hachoshen written by Harav Aryeh Leib.
The Nesivos Hamishpat, written by Harav Yaakov of Lisa.
Simultaneously, we will include in the shiurim the practical applications of the topics being
learned, and together we will attempt to analyze the halacha lmaaseh based on what
we learned in the shiurim and based on the Achronim that will be cited regarding these
discussions.
I will mention that I was greatly helped by the Responsa Project of the Bar Ilan University
when preparing these shiurim and even more so regarding the discussions pertaining
halacha lmaaseh. Much gratitude and thanks to them.

The importance for a Dayan to know these halachos

extremely well
The truth is that this is not the correct place to speak at length about the importance of the
great amount of knowledge and clarity that a Dayan must have. This is for two reasons:
1. First, it is clear to anyone who learns that it is not possible to rule in these serious matters without learning well all the halachos that are relevant, and therefore
there is no need to explain this.
2. In addition, there is no need to speak at length about why it is important for the
Dayan to learn since we will learn this as we learn the first topic of the halachos
of dayanim.
However, we cannot get away with totally ignoring the topic, so we will just point out a few
of the halachos in the Shulchan Aruch that show us the above.
The Shulchan Aruch rules (Choshen Mishpat siman 10 se'if 1): One who feels he is familiar
with ruling and jumps up and rules without first giving it much thought until it is clear as
the sun is a fool, rasha, and haughty person.
The Shulchan Aruch also writes (in this siman se'if 3): He has caused many corpses- this
is a talmid chochom that is not fitting to rule, but nevertheless rules etc.
The Shulchan Aruch also cites (siman 8 se'if 1) Anyone who establishes a dayan who is
not a honest person, and is not a scholar in the wisdom of Torah, and is not fitting to rule,
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even though he is a precious person and has other good qualities, whoever established
him has transgressed a negative commandment.
We will conclude with the one last halacha that really brings out the obligation of the dayan
to be an expert in all the details of the halacha (Rama ibid.): It is forbidden to establish an
ignoramus as a dayan based on the premise that he will ask a scholar every time

Not to be involved in matters of gittin and kiddushin

without proficiency in those halachos
In order to stress the importance of the dayans knowledge I will cite the words of the
Gemorah in kiddushin that speaks about this. (I will mention this sugya when we learn,
bezras Hashem, Shulchan Aruch Even Haezer, hilchos kiddushin.)
The Gemorah in Kiddushin (6a) states: Rav Yehuda says in the name of Shmuel, anyone
who is not proficient in the matters of gittin and kiddushin should not be involved with them.
The Rishonim disagree regarding the explanation of this statement (see Tosafos ibid. "
):
1. Rashi explains that it means that such a person should not be a Dayan in these
matters as he may mistakenly permit the marriage of an ervah (one who is prohibited to get married.) According to this, when we say He should not be involved with
them, them refers to these halachos.
2. Rav Azriel in Tosafos explains that it means that such a person should not
speak to women about Kiddushin as he may mistakenly perform Kiddushin with
them either through his words or through giving them something and they will not be
aware that they are really mekudeshes. According to this, when we say He should
not be involved with them, them refers to women.
The Shulchan Aruch (Even Haezer Siman 49 Seif 3) establishes the halacha according to
the explanation of Rashi: Anyone who is not an expert in the matters of gittin and kiddushin
should not be involved in the halachic ruling of these matters, for he may easily make a
mistake and permit an ervah and cause many mamzeirim (children born from certain illicit
relationships) to be born in Klal Yisroel.
We see that the Shulchan Aruch rules the aforementioned Gemorah as the halacha
according to the explanation of Rashi.
The Beis Shmuel (Seif Katan 4) quotes the opinion of the Taz who understands from the
words of the Shulchan Aruch that one is only prohibited to rule in these matters, but he may
be misader kiddushin even if he is not so proficient in the Halachos. However, he may not
officiate in a Get, as there are many details which the Rav must know.

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On the other hand, the Pischei Teshuva (Seif Katan 2) quotes the Taz and also the opinion
of the Shvus Yitzchak who disagrees and rules that ideally such a person may not even be
Misader Kiddushin. The Pischei Teshuva adds: It is not in vain that it has been the custom
throughout the generations to only allow one to be Misader Kiddushin with the consent of
the Rav, for there is great danger that many mistakes will occur. And in the responsa of
the Gaon etc. it states that this is was the enactment of the Rabbonim of Tzfas who were
in the days of Rabbeinu Tam, who established that only one who has been chosen as a
Rav or Motz (a posek) may be Misader Kiddushin.
Indeed, the point of these Shiurim on dayanus is to deal directly with this issue, to give one
the basic tools to understand the details of the halachos necessary so that he shouldnt be
considered one who is not an expert in Tiv Kiddushin. It is also in order to explain the
halachos of Choshen Mishpat which are relevant primarily to the cases between man and
his friend.
We will now begin learning the first topic: Hilchos Dayanim. We will start with the informative
introduction of the Tur on this topic.
Hilchos Dayanim

The introduction of the Tur to Hilchos Dayanim

The Tur starts his introduction, Raban Shimon ben Gamliel said that the world stands on
three things: Judgment, truth, and peace.

What does the world stand on and what does it exist on?
The Tur cites the explanation of Rabbeinu Yonah zl on this statement. He says that it can
not mean that for the sake of these three matters the world was created because in the
beginning of the perek it states On three things the world stands and they are not the
matters that are mentioned here. (There it states Torah, Avodah, and Gemilas Chasadim.)
So he explains: First the Mishna tells us which three things the world was created for:
Torah, Avodah, and Gemilas chasadim. Torah as it states ' , the Torah
says, I was created before all the creations and for my sake they were created. Also for
avodah, that Hashem chose Yisroel from all the nations and chose the Bais Hamikdash
from all places in order that they should serve Him there, and for that purpose the world
was created. Also gemilas chasadim, which is the trait of kindness that causes us to find
favor in front of Hashem. Here it says the world exists which means that after the world
was created it continues to exist based on these things, that through the judges who rule
between man and his friend the world exists, because without judgment whoever is stronger
will prevail. Also through truth, as it states (see Shabbos 104a) that falseness does not have
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a base, but truth is the foundation and base of everything. Also through peace, as it says
(Avos perek 3) that one should daven for the wellbeing of the kingdom for without it, man
would swallow up his friend alive. These are the words of Rabbeinu Yonah.
These words give us an amazing novel explanation, that there are three things that the
world was created for, and there are another three things that in their merit the world
continues to exist. The first on that list is judgment, that because of it there is order and
justice in the world and therefore the world can continue to exist without getting destroyed
through peoples arguments.

The Judge keeps up and causes the world to exist

The Tur continues that this is the meaning of the words of our teachers when they said
anyone who judges a completely true judgment is considered to be a partner with Hashem
in the creation of the world. This is because when Hashem created the world He did so
in order that it should continue to exist, and the evil people who steal, destroy the world
through their actions, like we see that the verdict of the generation of the flood was sealed
only because of stealing, as it states and it states after that
. According to this the judge who breaks the upraised arms of the evil ones and takes
away their plunder and returns it to its owner is causing the world to exist, and fulfills the
Will of the Creator that the world should continue to exist, and therefore it is as if he is a
partner with Hashem in the creation.

Our forefathers were also involved with judgment

The Tur continues and describes how the forefathers of our nation were involved with
judging people and the dearness that Hashem showed them as a result and he writes:
Avrohom Aveinu was only dear to Hashem and called His beloved because he went on
the path of justice and trained his children to go on that path as it says [ ]
. '
Moshe Rabbeinu, the teacher of all Naviim accepted the advice of Yisro about judgment,
that he should establish judges to warn Klal Yisroel and command them about the matter
of justice and Hashem agreed to him.
After Yehoshua made a covenant with Klal Yisroel to serve Hashem he concluded his
word with the matter of justice as it says [ ]
.
The Tur writes a fundamental and important statement that is extremely important to know
when studying the matters of judgment in Choshen Mishpat: Judgment is the basis and a
great principle in avodas Hashem.

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He continues and says: And after him every judge would judge his generation and cause
them to repent from their bad ways and to serve Hashem and to go on the path that Avrohom
Aveinu went on, to do righteousness and judgment. Because of this they were saved from
their enemies until Shmuel rose as a Navi faithful to Hashem, and he judged Klal Yisroel his
entire life and went every year and traveled to Bais El, Mitzpeh, and Gilgal, and he judged
Klal Yisroel in all these places. Chazal tell us that the path he took this year he did not
take the next year, in order to bring back the hearts of the entire nation to serve Hashem
and to follow in the path of Avrohom Aveinu ah. And he anointed Dovid to be king on Klal
Yisroel and he also went in the ways of Hashem more than those who were before him
as it says and Chazal tell us that in the merit of
the judgment and righteousness that Dovid performed, Yoav kept alive the rest of the city.
And his son rose after him, the friend of Hashem who loved to follow in the laws of his father
Dovid, and he requested from Hashem an understanding and listening heart to judge his
nation, to understand the difference between good and evil, and his request found favor in
the Eyes of Hashem and He gave him a wise and understanding heart, that there was never
anything like it until then and after him no one ever rose like him, and all of Yisroel feared
him since they saw the wisdom of Hashem in his heart to perform judgment.
Also Yehoshafat who followed in his fathers footsteps and uplifted his heart to go in the
ways of Hashem, and strengthened the matter of judgment and established judges in every
city and told the judges look very well into what you are doing as you are not judging for
man, you are judging for Hashem, and He is with you in your judgment.
Also Yoshiyahu, who the pasuk testified about and says that no king was like him before
him that returned to Hashem with his full heart, Chazal say that any ruling that he ruled
before he was eighteen years old, he returned to its owner.
Also the king Moshiach, may he be revealed speedily in our days, the pasuk praises
regarding judgment as it says '[ ] .

The punishment of one who does not judge righteously

After the Tur presents the positive side of judgment, he goes the other way and presents
the other side of the coin - what is the punishment of one who does not judge righteously.
He writes: Just as the reward is great, so too is the punishment of one who annuls it and
distorts it, as we learned the sword comes to the world because of prolonging judgment
and distorting judgment, and so says Dovid in Tehillim (119)
- this implies that by withholding judgment a person will be placed in the hands of
oppressors.

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Yerushalayim was destroyed and Klal yisroel went into exile only because they annulled
justice, as it says [ ] and it says
and after that it states .

The benefits of true judgment

This is what the Tur writes about the benefit of judgment and the reward for adhering to it:
Through judgment we will be redeemed as it says (ibid.) and
it says there and after that it states
.
It brings the redemption closer as it says [ ]
.
Hashem desires it more than all sacrifices as it says in MIshlei (21)
' - it does not say that it is merely greater than a chatas offering or an oleh, rather
it says it is greater than all sacrifices.

The warnings of the Torah to the judges

The Tur concludes by pointing out several places where the Torah warns the judges: It
warns us through Moshe Rabbeinu ah ,[ ]
. It also warns us with positive commandments - [ ]
[ ] ,.
The Torah commands us to appoint judges in all places as it says [ ]
. Shoftim are the judges that are established to judge, and shotrim are
those who use the club and whip that are found in front of the judge to suppress upon the
judges request.
We will now begin Bezras Hashem the explanation of the seifim of siman 1 of hilchos
Dayanim.

Siman 1 - The appointment of judges in Eretz Yisroel and

Chutz Laaretz (6 seifim)
Siman 1 Seif 1
The Shulchan Aruch writes:
In our days, the judges rule cases of admissions, loans, kesuvos of women,
inheritances, presents, damages to friends money, which are matters that

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constantly occur and involve a monetary loss. But matters that are not
common, even if they involve a monetary loss, such as an animal damaging
its friend, or matters that do not involve a monetary loss even if they are
common, such as the double payment of a robber, and all fines that the
chachomim fined, such as one who blows into his friend (i.e. one who blows
loudly into his friends ear and scares him) or slapping his friend (i.e. hitting with
his hand on his cheek) and anyone who pays more than he damaged, or one
who pays half the damage, we do not judge it only that have had
smicha in Eretz Yisroel are allowed to do so, besides for the half payment
for damage through pebbles since it is a monetary payment and not a fine.

The Source
In this shiur we will just cite the source of the first halacha in the siman and we will cite
some of the halachos and background that is found in the Tur regarding this siman. In the
next shiur we will Bezras Hashem completely explain this se'if and we will progress to
the next seifim.
The source of this se'if is in Makkos (7a) where it states that Sanhedrin practices in Eretz
Yisroel and in chutz laaretz. The Gemorah concludes that chutz laaretz is not the same
as Eretz Yisroel regarding this matter, since in Eretz Yisroel we are obligated to establish
batei din in every and every city. (It seems that a is the larger area, and a city is
part of that , and that there are alot of cities in each .) However in chutz laaretz we
are only obligated to set them up in each and not in each city.

With which power do judges rule nowadays?

We will also add, based on the Gemorah in Gittin (88b), that every Sanhedrin (and also
all the batei din of that period) had the strength to judge only at the time that there was
smicha. (Smicha was when the chachomim would give power to those succeeding them
to rule, passed down from person to person, and only someone who was given smicha by
the previous chachomim was allowed to judge.) Nowadays, that we do not have smicha
anymore, all the judges are not valid min Hatorah, as it says " "in front of the
" "that is mentioned in the parsha and that refers to judges who have smicha. In
front of them and not in front of a layman, and nowadays we are considered to be laymen.
Therefore, nowadays the judges do not rule min Hatorah but rather they are acting as
messengers for the earlier ones. Meaning, we perform judgment with the strength that we
are messengers of the earlier chachomim who were smuchim and judged according to
the Torah.

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Are judges nowadays allowed to judge all matters?

The Gemorah in Bava Kama (84b) concludes that we do not say regarding all matters that
we are able to act as messengers of the earlier chachomim. Rather, the matters that we
judge nowadays as a result of the earlier generations can be divided into two areas:
1. Common matters
2. Matters which involve a monetary loss, such as admissions and loans. (The
Tur explains that it means that he makes a claim with witnesses who testify that
the defendant admitted in front of them that he borrowed money or that he actually
borrowed in front of them.)
In order to judge we need both conditions. That they should be matters that are common
and that the plaintiff will suffer a monetary loss if we will not judge them.
However, matters that are not common, even if they involve a monetary loss, such as a
man who hit his friend (this is a monetary loss but it is not common), we will not judge
them. Also matters that do not involve a monetary loss, such as embarrassment (a person
embarrassed his friend but did not cause him a monetary loss, he just wants that the one
who embarrassed him should pay him a fine) we will not judge nowadays, even though it
is something that is common.

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Summary

This was not a standard shiur. In this shiur we started with a short
introduction to learning dayanus, mainly the matters of Choshen Mishpat.
We also showed the method of learning which we will use bezras
Hashem, and we also listed the commentators that we will learn.
We also cited several sources that show how important it is for a Dayan
to know these halachos very well, especially the halachos of gittin and
kiddushin, that we say about those halachos that one who is not proficient
in them should not be involved with them. (We also explained based on
the commentators the meaning of this statement.)
After that we quoted the introduction of the Tur to the halachos of
dayanim, where he superbly explains the importance of dayanim. He also
cites examples from the days of the Avos continuing through following
generations.
In the end we started to explain seif 1 and we will cite some of the
halachos that came out:
1. Sanhedrin practices in Eretz Yisroel and in chutz laaretz.
2. In Eretz Yisroel we are obligated to establish batei din in
every place, but in chutz laaretz we are only obligated to set
them up in each large region.
3. Nowadays we perform judgment with the strength that we
are messengers of the earlier chachomim who were smuchim
and judged according to the Torah.
4. In order to judge nowadays we need two conditions: That
they should be matters that are common and that the plaintiff will
suffer a monetary loss if we will not judge them

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