Hilchos Choshen Mishpat

Volume I : Number 27

"Kim Li!"

Question:

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.

1. In what situation is a litigant permitted to do this?

2. Is it necessary for the litigant to state this claim on his own, or will Bais Din make this claim for him?

Answer:

1. 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.

2. 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.

3. 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.

Sources:

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 Heavenly Court).

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 (Siman 25).

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.

Feedback is appreciated! It can be sent to atendler@torah.org.

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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!