Parashat Mishpatim
Question
A good Erev Shabbos!
It says in the parsha that it is forbidden for a Dayan to take a bribe, as it says
"ושֹׁחַד לֹא תִקָּח כִּי הַשֹּׁחַד יְעַוֵּר פִּקְחִים וִיסַלֵּף דִּבְרֵי צַדִּיקִים" (ח).
Do not take a bribe, for a bribe blinds the eyes of the wise and distorts the words of the righteous.
And the Gemara in Kesubos 105 explains, what is the meaning of the word shochad (bribery)? Shehu chad, “he becomes one.”
Rashi explains, the one who gives and the one who receives become like one -הנותן והמקבל נעשים לב אחד.
What is the halacha if both litigants give the judge the exact same amount of money? Would that be permitted, since he is receiving an identical amount from each side, so we could say there is no concern of bribery? Or do we still say, that this is considered a form of bribery?
Answer
The Gemara in Kesubos 105 brings a story about Karna (he was a judge in Nehardea together with Shmuel). He would take money from both litigants. The Gemara asks: How could he do this? It is forbidden for a judge to take money from litigants, even if his intention is to judge truthfully. Since if he takes money with the intention to tilt the judgment, that is forbidden since he is perverting justice and it already says לא תטה משפט “do not pervert justice.” Therefore, it should have been forbidden for Karna to take money from both sides.
The Gemara concludes that the reason it was permitted for Karna was because it was considered “sechar batala demuchach” compensation for lost wages.
Karna was an expert wine examiner. By smelling a barrel he could determine which wine was about to spoil, so the owner could sell it in time, and which barrels would remain good. People would pay him a zuz for this.
Therefore, when he sat as a judge, he was losing income from his regular work. For that reason, he was allowed to take a payment from the litigants, not as a bribe, but as compensation for the wages he was losing.
We see from the Gemara that taking money even from both litigants is forbidden. We still need to understand the reason, and how this could lead to a distortion of justice.
The Meiri gives a very interesting explanation;
Since both litigants gave money to the judge, suppose the verdict is that one side is completely right and the other is entirely liable. Because the losing party also paid the judge, the judge may feel uncomfortable ruling against him completely. He may instead issue a compromise of 60-40, for example, so that “everyone will benefit”.
This is a quote of the Meiri:
בית הבחירה (מאירי) מסכת כתובות דף קה עמוד ב
עקר טעם מה שאסרה תורה בקבלת השחד הוא מחשד הטיית הדין ואפילו קבלו על דעת שיזכה את הזכאי ויחייב את החייב ומכל מקום טבעו נוטה שלא לראות חובה לנותן לו ולחזר אחר זכותו ......ואף כשמקבלו משני צדדין מכל מקום לבו נוטה לזה ולזה עד שנוטה להכריע ביניהם ושלא לדונם בדין גמור
The main reason the Torah forbade taking a bribe is the suspicion that it will tilt the judgment, even if one accepts it with the intention to declare the innocent innocent and the guilty guilty. Nevertheless, human nature leans toward not seeing liability in the one who gave him money, and he will search for his merit…
And even if he receives from both sides, his heart would lean toward each of them, which would lead him to compromise between them, rather than judge them in a proper and just manner.
In Practice on the subject of paying a Dayan to judge
Hagaon Harav Fried writes;
In private batei din, the dayanim generally do not receive any payment at all.
In the official rabbinical batei din, where dayanim receive a salary, the halachic justification is based on what is explained in Kesubos 105 and in Choshen Mishpat siman 9 se’if 5, that it is considered “sechar battalah” (compensation for the income they forgo).
The Tumim (ibid.) writes, and this is also quoted in the Pischei Teshuvah (ibid.), that full-time dayanim, who are known to have alternative means of earning a livelihood if they were not engaged in judgment, are regarded as definitively refraining from other work, and therefore they may receive payment.
(See also Yoreh De’ah siman 246 se’if 5.)
On behalf of the entire Sheilot team, we wish you a Shabbos shalom u’mevorach.
