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Wednesday, April 29, 2009

Kedoshim, Vayikra 19:15. Lo Sisa P'nei Dal- Do Not Favor the Poor in Litigation

The Torah teaches that out of court, give charity, lend money to bad prospects, leave gleanings for the poor. But in court, we cannot favor the poor. If a nasty old scrooge of a rich man claims that a poor man owes him some trivial sum for having made some innocent error, we judge the case by the book and pasken just as we would if the parties were reversed. Rashi here-- You should NOT say "He is poor, and the rich man is duty bound to support him...I should find in favor of the poor man so he will receive his due with self respect."

Outside of court, we are personally and communally obligated to support the poor and downtrodden. But in the courtroom, within the parameters of legal analysis and court judgment, we may never take into consideration who the parties are. In the courtroom, the letter of the law is all that matters. So the rule is as clear as day, right? Wrong #1.

The Bach in CM 12 (4), at the end, arguing on the Beis Yosef and the Rosh, cites the Mordechai and paskens the following:
"And so all Jewish courts are noheig, to force the rich man to do what is proper and right even if the law is not so."
Please go and see the Bach inside. It's fascinating.

This seems to be directly contrary to what we assume to be pshat in our passuk. Even if you say the Bach is talking about pshara (that would be Wrong #2; he's talking about Din Torah,) what difference does that make? They came to a Beis Din for din of some sort, not to be told to give tzedakah. And if you say that the court paskens by the book, but separately forces the rich man to waive his claim, that would be Wrong #3. Look at the Bach inside and his rayah from the Gemara in Ha'umnin.

Talk to dayanim, and they'll tell you that nobody does like the Bach. Talk to people who have lost in a Din Torah, they'll tell you that the Dayanim do exactly the opposite of the Bach. Wrongs #4 and #5. But I'm really not interested in what Batei Din do or don't do. I just want to understand how the Bach understood the passuk in Parshas Kedoshim.

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