At the end of last week's class we briefly touched on the claim of "Kim
Li" (lit. "It's clear to me") - that a litigant in a Din Torah has a right
to declare that he agrees with the opinion of a Rabbi that is favorable to
his position (even though there are other Halachic Authorities that argue
with this Rabbi), and we can not force him to pay.
In what situation is a litigant permitted to do this?
Is it necessary for the litigant to state this claim on his own, or
will Bais Din make this claim for him?
In any adjudication involving finances that comes before a Bais Din,
in which there is a disagreement among the Rishonim or Achronim as to how
to decide the case, a Bais Din is not permitted to extract money from one
of the litigants and award it to the other. That person is able to claim
- "Kim Li!", which means- "I am sure that the Rabbis who are of opinion
that I do not have to pay this money are correct!"
This claim may be made even if the litigant is not knowledgeable enough
in Choshen Mishpat to offer an opinion in this matter.
The claim of "Kim Li" will only work for the person who has possession
of the money or object in dispute (Muchzak), whether he is the plaintiff
or defendant. Therefore, if a plaintiff had seized money or items under
dispute from the defendant and is now coming before the Bais Din for
their opinion as to whether or not he is in the right, the Kim Li will
work in his favor.
Generally speaking, a Bais Din will make the claim of Kim Li on behalf
of a litigant who may not be familiar with his Halachic rights. However,
in a situation where the item in dispute has been seized as described in
B, there is a difference of opinion among the Poskim as to whether or not
the seizure helps to establish him as the Muchzak if he does not make the
claim of Kim Li on his own. In this situation the Dayan must decide on
his own what appears to be fair to him.
We must first preface this discussion by mentioning that there are many
details involved in this Halacha, and we are only going to discuss it
here in a general manner.
First of all, we must realize that there is a basic difference in how we
deal with doubts (Sfeikos) in the Halachos in Orach Chaim and Yoreh Deah,
which deal primarily in Halachos Bein Odam L'Makom (Between Man and
Hashem) and the financial Halacha as discussed in Choshen Mishpat, which
is primarily Bein Odam L'Chaveiro (Between Man and his Fellow Men).
In the Halachos of Orach Chaim and Yore Deah (also known as Issur
V'Hetter - Permitted and Prohibited), the Torah has given us rules on how
to determine what the Halacha is when we are in a situation that the
Halacha is doubtful. For example, Rove - we may go after the majority,
Chazakah - the status quo, etc. Although we may not know conclusively
that this is accurate, these are tools that the Torah itself has given us
and we are permitted to act accordingly. To illustrate this, we are not
allowed to drink milk from an animal that is a Trefa - that has a hole in
it's lung or some other illness, as discussed in Hilchos Trefos in Yoreh
Deah. However, we may milk a cow and drink it's milk under the assumption
that it is not a Trefah, since the majority of cows are not Trefa. That
does not mean that the cow is not a Trefah, if I would perform a CAT scan
on it I may find that it is a Trefa - yet I am permitted to drink the
milk as long as I don't know conclusively that it is Trefa.
However, in financial Halacha (known as Dinei Mommonus) the Torah says
that a Bais Din has no right to force someone to pay when there is a
situation of doubt. Only when it is absolutely clear to the Bais Din that
the defendant is Halachically obligated to pay may they require him to do
so. The rule that the Torah has given us to determine that someone has
liability is either the testimony of two Halachically Kosher witnesses,
or the admission of the litigant that the facts as stated are true.
Therefore, if there would be a Machlokes between the Rosh and the Rambam
(for example) regarding a certain issue, since today our Batei Din do not
have the stature to decide conclusively that one opinion is more correct
than the other, it is not absolutely clear that the litigant must pay.
Therefore, the Bais Din can not extract money from one person to be given
to the other involuntarily, and they must leave the money in the
possession of whomever has it.
[It is important to note that this applies to a Bais Din that is issuing
a Psak (verdict) based on the Din of the Torah. However, most Batei Din,
especially those outside of Israel, operate as arbitration panels. In
this case they have a right to issue a verdict based on whatever power
the litigants have vested in them, whether it be compromise or their own
sense of fairness, even if the truth is not as clear to them as if they
would have the "testimony of two witnesses"].
The litigant that is in the possession of the disputed item can not be
considered a thief at all, even though there is a doubt as to whether or
not the disputed item belongs to him. Rav Shimon Shkop Zatza'l explains
that theft only applies to something that clearly belongs to someone else,
or something regarding which that Bais Din has issued a verdict (according
to the Halachos in Shulchan Oruch) that it belongs to another person. In
our case, since there is disagreement among the Poskim as to who the item
belongs to, a verdict may not be passed that the disputed item definitely
belongs to one of the parties, and therefore the person retaining
possession of the item can not be considered a thief even in doubt, and has
no obligation at all to return the item, even in Dinei Shomayim (The
For more discussion regarding the Halachos of Kim Li, see the Nesivos
Mishpat in Biurim 4:3, the Nesivos Mishpat at the end of Siman 25 (Kitzur
Dinei Tfisah Klal 20-24), and the Birchei Yosef on Choshen Mishpat
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his
permission and approval.
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
We hope you find this class informative and stimulating! If you do not see a subscription form to the left
of the screen, access the Advanced Learning Network to
subscribe to Business-Halacha.
For information on subscriptions, archives, and other Project Genesis
classes, send mail to email@example.com for an automated reply. For
subscription assistance, send mail to firstname.lastname@example.org.
Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!