By Rabbi Meir Orlian

Shalom and Ari were learning at a table right in front of Rabbi Dayan. “I’d like to borrow $200 to buy sefarim on the way home,” Shalom said to Ari. “Do you happen to have money with you?”

“I usually don’t walk around with that amount of cash,” replied Ari, “but I just took out money this morning.”

Ari took $200 out of his wallet. He said to two friends at the adjacent table: “For the record, see that I’m lending Shalom $200.”

Meanwhile, Rabbi Dayan was watching. “Shalom is reliable, but it’s good that you lent before witnesses,” he said. “To prevent misunderstandings, there should always be proof of a loan” (C.M. 70:1).

A month later, a dispute arose between Shalom and Ari over payment of the loan. They tried to resolve the issue between themselves, but were not successful.

Finally, Ari submitted a claim against Shalom in Rabbi Dayan’s beis din. The beis din issued a summons for a din Torah before Rabbi Dayan and his colleagues.

Shalom was surprised to see the summons by Rabbi Dayan. “Before Rabbi Dayan?” exclaimed Shalom. “He was sitting right there; it’s not fair that he should serve as a dayan! How can he be objective?”

“What’s wrong?” asked Ari. “Do you suspect him of being partial?”

“Chas v’chalilah,” replied Shalom, “but I don’t think that someone who was present at the event should be able to serve as a dayan afterward. I also remember learning somewhere that a witness cannot serve as a dayan.”

“Let’s ask Rabbi Dayan himself whether this is a problem,” said Ari. Shalom agreed.

“I summoned Shalom to a din Torah about something that you were witness to,” Ari said to Rabbi Dayan. “Are you allowed to serve as a dayan for such a case?”

“Indeed, the Gemara (Kesubos 21b; B.B. 114a) states that a witness cannot serve as a dayan,” replied Rabbi Dayan. “However, the Rishonim dispute when to apply this principle.”

“What are the various opinions?” asked Shalom.

“Rashbam (B.B. 113b—114a) maintains that anyone who intended to testify is considered a ‘witness’ and can no longer serve as a dayan, even if ultimately he did not testify,” explained Rabbi Dayan. “He suggests that the source for this rule is the verse ‘The two men . . . should stand before [the court] of Hashem’ (Devarim 19:17), which indicates distinct roles of witnesses (‘the two men’) and dayanim (‘the [court of] Hashem’).”

“Conversely, Tosafos and the Rosh maintain that it is only a witness who testified who cannot serve as a dayan,” continued Rabbi Dayan. “This follows from the verse cited by Rashbam; only when the witnesses actually ‘stand before the court’ are they disqualified. Alternatively, the rule is a corollary of the principle that testimony must be open to hazamah–total rejection by opposing witnesses. If a witness who testified were to serve as the dayan, he would not accept opposing witnesses to reject his testimony.”

“There is a third, compromise position of the Ramban and Ran,” added Rabbi Dayan. “One who intended to testify can serve as a dayan if he didn’t testify, but not one who was explicitly appointed to serve as a witness of the event.”

“What is the halacha?” asked Shalom.

“Shulchan Aruch (C.M. 7:5) rules according to Tosafos and the Ramban, and disqualifies only a witness who testified or was explicitly appointed as a witness,” replied Rabbi Dayan. “Thus, although I observed the case, since I was not explicitly appointed a witness and did not testify, I am allowed to serve as a dayan, whether I initially intended to testify or not.”

“I should point out,” concluded Rabbi Dayan, “that to authorize signatures (kiyum shtaros), the Sages allowed even a witness who testified about the signatures to subsequently serve as a dayan, since the requirement for kiyum shtaros is rabbinic” (C.M. 46:24).

From The BHI Hotline:
Wrong Lenses

Q: An optometrist examined my eyes and wrote a prescription. I took the prescription and purchased a pair of glasses. It turns out that the optometrist made a mistake regarding my prescription. Is the optometrist financially responsible for his error?

A: The Gemara (B.K. 99b) discusses a man who consulted a money-changer regarding the quality of a coin to decide whether to accept it or not. The money-changer said that the coin was good quality, so the man accepted the coin. It was subsequently discovered that the coin was not good quality, and thus the man lost money. The Gemara rules that the money-changer is liable for the loss his wrong advice caused, as long as he is an expert and was paid for his professional opinion. (If he was not paid, he is exempt if he wasn’t outright negligent. Some authorities exempt a recognized expert even when paid since the error is categorized as an oness–beyond one’s control.) The reason he is liable is that he is a mazik b’garmi–a category of indirect damage that borders on direct damage (C.M. 306:6).

The Gemara relates that Resh Lakish asked Rav Chiya to examine a coin and informed him that he would rely on his opinion. He explained that the reason he said that he was relying on him was that if Rav Chiya erred, he would be obligated to reimburse Resh Lakish for his loss.

Rif derives from this that the money-changer is not liable unless the customer states that he is relying on his expert opinion, but if the customer does not make that statement, the money-changer is exempt, even if he was mistaken. Rosh (9:16) disagrees, contending that it is not necessary to verbalize reliance on his expertise when it is clear that he will be doing so.

Poskim point to these discussions as precedents for other cases where one suffers financial loss by following an expert’s advice. In other words, when someone consults an expert and suffers a loss by following the expert’s advice, it is considered as though the expert caused the loss and is liable, since he understood that his advice would be followed.

Poskim debate how clear it must be to the expert that his opinion will be followed. It is universal, however, that if the expert is informed or if it is evident that one will rely on his expertise and will not obtain a second opinion, the expert is liable (C.M. 306:6). There are several applications of these principles:

An employee in charge of receiving who miscounts the number of units received, resulting in the business paying for merchandise it did not receive, is liable for his error.

An architect who submits drawings with incorrect measurements, and consequently some of the construction had to be torn down and rebuilt, must pay all the related expenses, since builders rely on his drawings.

Someone directing a driver who cannot see where he’s going who miscalculates, so that the driver backs into a wall and damages his car; the one who gave instructions is liable if it is clear that the driver is relying on him.

It must be emphasized that whenever one’s liability is garmi, one is not liable if the bad advice was issued inadvertently (shogeg) or due to circumstances beyond one’s control (oness). Liability applies only when the expert was negligent (Shach 386:6).

In your case, since the optometrist was negligent by not double-checking that it was the correct prescription, he is liable.

Money Matters:
Paternal Family

Based on the writings of Rav Chaim Kohn, shlita

Q: How is “family” defined in halacha regarding inheritance?

A: Sons (or daughters, in the absence of sons) inherit from both their father and their mother. However, paternal family defines other inheritors. Thus, half-brothers from the father can inherit from each other when the deceased has no descendants, but not half-brothers from the mother. If one brother did chalitzah, the practice is to grant him a larger share, in order to encourage the performance of chalitzah (C.M. 276:4; E.H. 165:4; Aruch HaShulchan, E.H. 165:24).

Furthermore, since we follow paternal lineage, a mother does not inherit her child who has no descendants, but rather the father’s family. In cases where the father’s identity was impossible to establish (sh’tuki) the property becomes hefker (ownerless); if the father’s identity was known but forgotten, the property remains in trust until resolved–yehei munach (Pischei Teshuvah, C.M. 276:2).

An adopted child inherits from his biological parents, not his adoptive ones. v

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to subscribe@businesshalacha.com.

 

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