Ein M’Rachamim B’Din (or Animosity Means Never Having to Say I’m Sorry)

Author’s note – This post is an update on the Malka Leifer episode. This post will not be appreciated if you are not familiar with my previous posts on this episode (and even then…). The following are the most relevant posts:

Thinking Like a Jew  - The Halachic premise for my position. The “moral compass”.

There is No Ex-Tradition in our Tradition – The keynote post that says it all.

Victim Turned Predator – As it sounds.

Flirting with Danger – Where this is all leading us to.

Dassi’s Lament – What does HKBH think of all this?

This post is in response to this news item (HERE) that was published in the Australia Jewish News on May 3, 2018.

We are all brought up to be polite and well mannered. Our parents, kindergarten teachers, Mister Rogers and Captain Kangaroo all instruct us: “Always say ‘Please’, ‘Thank you’, and ‘I’m sorry’…”

·   It’s nice to say “please” even if you are the boss and you are talking to an underling or a parent talking to a child.

·   It’s nice to say “thank you” even if it is for something that is owed to you.

·   It’s nice to say “I’m sorry” even if it’s really not your fault.

We should always be nice, courteous and respectful. מעורב עם הבריות.

Did I say always? Well, there is an exception for every rule.

When I was a teenager (after Mister Rogers and Captain Kangaroo), I took Driver’s Ed at a local public school. Driving is an adult activity and entails adult responsibility. If one’s car comes in contact with another person’s car, (or, chas v’shalom, with another person) there is likely to be some damage. And, at least one of the parties will be held responsible for the damage. And damage usually costs money.

In this regard, the instructor was teaching us the proper procedure if we are ever involved in such an event. There were DOs and DON’Ts. Most of these are what we might expect.

On the DO list: DO do whatever the law requires and exchange information about your license, registration, and insurance. 

On the DON’T list: DON’T run away. DON’T lose your composure.

But he added something that we did not expect:

DON’T ever come out of your car and say: “I’m so sorry. It was all my fault.”

It’s not your job to determine whose fault it is. And even though you were behind the wheel and you know what you did wrong, you still may not be certain about exactly what happened. And you may not be taking into account that the other driver should have signaled or perhaps was following too close. Or you may be unaware of some of the traffic laws (maybe you had right-of-way). It may not be all your fault.

But once you say it is, it can be used against you and it can wind up costing you more than you should pay. Especially if the other fellow suddenly thinks it’s fashionable to wear a neck brace and he remembered that his right knee has been feeling sore aver since that incident (two weeks ago…)

The message is that the reason to be courteous and well-mannered is to preserve cordial relations with your fellow man. But when your fellow man is not so interested in maintaining friendly relations and is more interested in squeezing you for cash, this is not the time to be courteous and well mannered.

Sometimes an apology is a formality. But other times it is an admission of blame. And, when it is one-sided, it is seen as an admission of total blame. The message is: “Yes, it’s totally my fault. It isn’t your fault at all.” And when “fault” come with a price tag, the price tag will be just as one-sided.

We are told that in times of discord between two parties, very rarely is one side completely at fault and the other side totally faultless. Even if one side is clearly the aggressive or obstinate one, and if not for this aggression or obstinacy, the two sides would get along or the damaging incident would not have occurred, there are still usually some areas where the injured party may have contributed to the altercation.

So say our Sages in the story of Dina (see Rashi Breishis 34:1) and, later, in the Parsha about the Naara Ha’Meurasah (see Rashi Devarim 22:23). It is not a good idea for an attractive young woman to go out alone for a stroll in a bad neighborhood. And if something bad happens, she carries some of the blame. I have written much about this in the past.

As such, I have been taught repeatedly in my coursework for marriage counseling, Gishur (meditation), and even Toen Rabani that the standard in a dysfunctional marriage is that both sides can be ‘blamed’ even if only one side clearly demonstrates to be the “impossible” one.

Thus, when one side in a quarrel - invariably, the unequivocal injured party - demands a full apology from the other side, they are not only demanding acknowledgement that they have been injured. They are demanding total exoneration for themselves. They want the other side to concede that they are totally faultless. Often, this need for exoneration is more valuable to them than the admission of fault from the perpetrator.

Sort of like – it’s not the money, it’s the principle.

We have a similar concept when it comes to saying “Thank you.” If I walk into a store and plunk down a wad of cash for some coveted item, say a food processer or something, the cashier will hand me the item with a big smile and say, “Thank you” as in “Thank you for your business”. I will likewise smile and say “Thank you” as in “Thank you for importing this contraption from China”.

The stewardess at United Airlines will always thank you for choosing their airline, even though you could not have gotten there without them. This is called “rite of business” or a "best practice". Of course, she has a vested interest in her gratitude. She does not want you to use American Airlines next time.

And you will thank her for finally getting around to you and giving you the miniscule snack that everybody else got twenty minutes earlier (as well as for not dragging you off the plane).

Certainly, business is a two-sided transaction and both sides have gained something from the other. They both have what to be grateful for with what they received from the other party and it is only appropriate to say "Thank you". But they don’t really have to. After the transaction nobody really owes anything to the other. Each side gave the other something of comparable value in order to receive the “favors” of his counterpart. What was received was earned.

In my youth, I read the famous short story from Y. L. Peretz, Four Generations – Four Wills. I was deeply moved by it. You can read the whole story HERE (you may not immediately see the entire text - if so, click View All and then on the third frame in the window).

Briefly, the story is a sequence of wills from four generations of Jews wherein, in each succeeding generation, the testator is both less religious and more wealthy than his predecessor. The last person’s will is actually a suicide note. He lamented that his money was his misfortune. His immense fortune bought him everything he ever needed except for one thing – a genuine favor. Nobody ever gave him any goods or services out of friendship. Only for cash. He ends his note as follows:

Is there anyone I want to thank?

No. I paid everybody for everything.

Yes -- even for this last drink.  (He is referring to the glass of arsenic which he is about to drink – YH.)

From the first time I read it I was shaken by the last lines of this story (this was obviously the author’s intent). It sends a profound message.

The original story was written in Yiddish and I do not know who translated it to English and how precise he or she was. I wonder if, in the original Yiddish, the third to last line was, “Is there anyone I want to thank?” like “s’fahran eimitzer vher ich vill danken?” or perhaps, what it really should have read, “Is there anyone I need to thank?” (s’fahran eimitzer vher ich darf danken?). 

Clearly, my version is what he was really asking: Is there anybody that I am obligated to thank? There is no reason to assume that he was a nasty or uncouth person who wouldn’t say "Thank You" to the fellow who sold him his arsenic after he rung it up. Or to the many women who liked to kiss him. I am certain he was a polite and proper gentleman.

So his message is that a true debt of gratitude only comes about from an act of unsolicited kindness. But, the minute the “kindness” is paid for, it is no longer a chessed but a bill of goods or a service. It has been paid for. There is no debt. Of course, it won’t hurt to be courteous, but there is no obligation.

Just like apologies, when one wants to maintain a lasting relationship with somebody else, it helps to say "Thank you". But when this is not part of the agenda, it is expendable.

Where am I going with this?

I am very sorry for this long introduction. Can we get down to business, please?
Thank you!

The Malka Leifer episode may have been moved to the back burner, but it is still on the stove. Nothing of note has happened over the past few months except a few minor court hearings that turned out to be preliminaries for future [minor] court hearings. The Sapper sisters and the CSA advocates – Manny Waks, Shana Aaronson, and Meyer Seewald are kvetching that their plans for Mesira and Lo Tasgir are not materializing fast enough.

At least they were mekayem Gonev Nefashos l’mehadrin. 

Apparently, Mrs. Leifer has been incarcerated in prison since March 20. It seems the powers-that-be subjected her case in this great Jewish State of ISRAEL, our eternal Jewish homeland, the Medinah of Reishis Tzemichas Ge'ulasenu to the Christian Arab judge George Karra who decided that she is not entitled to bail or house arrest. I have no idea why not nor can I conceive of any possible reason. She is definitely not a flight risk nor a risk of physical violence, and house arrest (with monitoring devices and everything) precludes her being a danger to anyone from the public. 

What disturbs me the most is that she is doing “time” in a very run-down prison without having been convicted of any crime whatsoever. Bear in mind, she is not being held by the Israelis for committing any heinous sexual offenses. She is being held merely for evading extradition hearings, something she should not be subjected to under any circumstances. 

So far it’s been over 60 days. There is no question in my mind that this constitutes gonev ish[a] u’mechara. Nice to see the Sapper sisters and the over 2300 people (mostly Jews) who support their campaign and "Like" Dassi's Facebook page, and who have an active part in this unjustified imprisonment, to be so thrilled about this.

Yet, there was one very interesting development almost four three weeks ago (I work slowly these days) and that is the topic of this post.

On May 3, 2018 a posting appeared in Dassi Erlich’s Bring Leifer Back Facebook page. In this post, Dassi linked to an article that was published in the Australian Jewish News titled: 

Erlich walks away from Adass board

The article opens thusly:

ALLEGED victim of child sexual abuse Dassi Erlich said this week she will no longer speak to the Adass Israel School board because she feels they aren’t serious about apologising to victims.

We learn from this that despite Dassi’s claims just a few weeks later (see HERE) that, "I definitely don't see myself as a victim. And I don't even see myself as a survivor. That would mean I'm trying to survive something and I believe I'm a lot further along than that. If anything, the word 'thriver' comes to mind." Dassi is still a victim (okay – an alleged victim). Sadly, she hasn’t come much "further along than that". As a victim, Dassi Erlich is in the process of demanding an apology from the Adass School Board.

It’s not like the school board is not willing to accommodate her demands at all:

At her first meeting with the board last July, Erlich – who claims she was abused by former Adass principal Malka Leifer – asked for a public statement of support, an apology and a statement that would encourage victims to speak to the police and seek support.

Yet, doing so is not as simple as it looks:

“They said they could do that, they just have to check with their insurers first.”

Still, they didn’t throw in the towel:

However, in November, a draft apology was rejected by Erlich as she felt it didn’t address the key issues, and then this March she was asked by the board to write the apology she wanted herself, which she felt was ridiculous. “I walked out of that meeting so angry,” she said.

Apparently, Dassi hasn’t gotten what she wanted and so she “walked out… so angry.”

So this victim survivor  thriver is still an angry person after ten years. And the question in my mind is: Is she entitled to be angry?

Most everyone under the sun - even the Adass board – seems to think so. Everyone except me. I don’t think so. And why not?

I have two answers. The first answer relates to the advice from my Driver’s Ed instructor: I am not convinced that this is really their fault.

To explain this, we need to first establish that the Adass school [board] is not Mrs. Leifer and Mrs. Leifer is not the Adass. They are two distinct entities. And in Judaism we have a rule that states:

לא יומתו אבות על בנים ובנים לא יומתו על אבות איש בחטאו יומתו  

The alleged damage was done by the accused Mrs. Leifer and not by the school [board].

Yes, of course, it was the school that hired her and brought her to Melbourne and, as such, they are clearly responsible (responsible means answerable – not liable) for the integrity of its employees and the welfare of the students. But what this means is that that they must take reasonable precautions and not be negligent. As long as they were not negligent and complicit to the alleged crimes, and they did not aid or abet the alleged perpetrator nor did they ignore complaints, they did not do any damage and there are no grounds for liability.

The negligence would need to be in one of two areas:

Negligence A

The school negligently hired a bad apple. This means that the accused Mrs. Leifer had a history of past unruly behavior that could have and should have been uncovered.

Indeed, I have seen some unsubstantiated blind rumors expressed by members of the peanut gallery suggesting a criminal background. But I have searched long and hard to find a single reputable news item that suggests such a thing and have thus far come up empty. Likewise, this does not seem to be the premise of the judgment against them courtesy of Justice Jack Rush.

Hence, I can only conclude that there is no valid claim of negligence in this area.

Negligence B

The school was made aware of the misdeeds at the time they were taking place and did nothing to terminate them.

We have even much stronger proof to put this to rest. 

Firstly, as all the news stories relate, the first allegations only came to light after Dassi had some therapy sessions in Eretz Yisrael sometime in 2008. The indications are that within two weeks of the initial phone call to Australia, Mrs. Leifer was involuntarily boxed up and shipped back to Eretz Yisrael courtesy of Adass.

Secondly, here as well, the judgment of Justice Jack Rush was incredibly, not predicated on their turning a blind eye and allowing Mrs. Leifer to continue her activities but, to the contrary, their sin was that they shipped her out faster than anybody could grab hold of her. The Kangaroo court “judge” actually incriminated them for promptly seeing to it that she does not do harm for another day. Mind boggling!

But thirdly, I would like you to click on this link and go to 31:45 on this podcast and hear the very voice of Dassi Erlich exclaim: “Like the school had no idea…there were so many signs in retrospect…No one ever dealt with something like this before…”

So here we have the angry Dassi Erlich admitting on public radio that the school board, yes, the same one that she sued, had "no idea" what was happening, and due to no previous experience, were not cognizant of the warning signs. (By the way, this statement exonerates the Adass school from Negligence A, as well.) 

Another interesting remark from her interview (21:50) is that, “There was no one that I could actually talk to…she [Malka Leifer] was seen as the head of the community…”

What Dassi is implying is that Mrs. Leifer was the top of the totem pole so there was nobody above her to complain to.  So, amazingly, there was no higher authority to complain to but, all of a sudden, there is a higher authority to sue about eight years later!

Now, of course, Dassi was at the tender age of 16 when this business allegedly began and we can understand that she was probably not too keen on administrative hierarchy at the time. But, was she an orphan? Where were her parents?

The answer to this is, as Dassi exclaims (22:30), she came from "an abusive home" so she was not on confidence terms with her parents. I can understand this. However, every person must have a parental figure and, as such, she also claims that she has six siblings and they are “all very close.”

Dassi has an older sister named Nicole Sapper Meyer. Nicole also claims to be a victim of Mrs. Leifer. But she is two years older! This means her abuse began at around 18 years of age. Now, apparently this abuse continued over the course of 4 years. This means for Dassi to the age of 19 and for Nicole to the age of 21!! (Unless it was shorter for Nicole). Aside from the fact that we have crossed over into the age of consent – and nobody was forced, how long does it take to find somebody to complain to?

But, this is not all. There is an even older sister named Michelle Sapper Orbach. Where was she? And there is another older sister in the story who was living in Manchester and has since (לא עלינו) been taken to Olam HaEmess. Where was she at the time?

Four years of alleged abuse in a family of adult sisters and nobody tells each other?? And nobody tells the board???

Now, as I wrote in my original post, there were certainly some very logical reasons why the girls kept it to themselves and it can be perfectly understandable. But none of these reasons are the fault of the Adass board.

So here is Dassi Erlich telling us publicly on Dovid Lichtenstein’s show (“The most listened to Torah radio program in the world!” – DL) that the board "had no idea". The board had no idea - but Dassi and her sisters did! And eight years later they go and sue the board for what they knew and the school board didn’t. And now she is angry because they do not give her a satisfactory apology?

The Adass school needs to apologize to the victims that didn’t breathe a word to them about what was going on in real time??? These girls kept the information from the school board and they are angry at the school?

Incidentally, this article says that when the youngest sister, Elly, wanted to get involved with Mrs. Leifer, "Dassi and Nicole tried to subtly warn their little sister to avoid the principal." So, by now they know everything (and the school knows nothing) and all they do is "subtly warn their little sister"?? They didn't tell her straight out and stop her? 

And Elly is angry at the school????

If I was the school, I would be fuming angry and demand an apology from them!

Let’s go on to the second answer on why they are not entitled to be angry. This one relates to the story by Y. L. Peretz.

The news items tell us that the Sapper sisters, one after the next, took the Adass school to the secular Kangaroo court. Dassi herself won an AU$ 1.27m settlement against the school. The other two sisters settled for undisclosed amounts. I was informed behind the scenes from an unreliable source that whatever was paid out came from the school’s insurance.

Now I already wrote in my original post how disgusted I was with this court case and the above rant explains why. It’s because morally and Halachically there was no justification for such a suit. I am not going to complain about it being held in “Erkaos” per se’ because I maintain that there are times that a legitimate grievance can be taken to “erkaos”; especially if an insurance company is involved (besides, these women are not very observant, in any case). But if there is no legitimacy to the grievance and it is brought to erkaos to be judged strictly by non-halachic standards (i.e., in order to give it legitimacy), this is untenable.

But let’s forget all of that and look at something else.

The girls sued. They won. Presumably they were paid. Damage done, damage paid for. End of story.

Or, it should be.

Because, just like once one pays for a service, there is no obligation to say “Thank you” – that obligation was sold to the payer, likewise once one compensates for a damage claim, there is no longer an obligation to say “I’m sorry”. This was also sold to the payer. It’s nice to do it anyhow, but it can no longer be demanded as an obligation. The obligations have been paid.

It is usually appropriate to apologize out of just plain common courtesy. But this is only if the apology does not come with a price tag. And, here we come back to the advice of my Driver’s Ed instructor. One-sided apologetics is an admission of liability. And one need not admit liability voluntarily and pay the price for it.

Why on earth do you think the board told her, “they just have to check with their insurers first”?

This apology is not a courtesy. This is business. And nobody has the right to be angry if another party determines that it is not in their best interests to do business.

One more thing. I have a sneaking suspicion about why this apology is so important to the Sapper sisters. As I wrote above, a one-sided apology serves a dual purpose. (1) The offending party is admitting that the incident was “all their fault”. (2) It goes on to indicate that the injured party is totally blameless.

I speculated in an earlier post (Flirting with Danger) that this campaign carries some serious risks. One is that if Mrs. Leifer is actually extradited to Australia and put on trial and is acquitted, the insurance company may have grounds to countersue the Sapper sisters or possibly vacate the ruling of Justice Rush and demand that they return the retribution money. A formal apology would go a long way to hamper such an occurrence.

To sum up, assuming all the allegations are true, then the Sapper sisters are the victims of Mrs. Malka Leifer and no one else. They are not the victims of Mr. Koppel or Mr.  Abelesz or any of the members of the Adass board. These people did nothing to them and gave them all the cooperation they could afford to safely do. The board does not owe the Sapper sisters anything. They paid them. They did not molest them.

But they are the victims of the accusers. Despite that Dassi publicly admitted that the board is essentially blameless, they were sued and now they are being publicly shamed in the Australian Jewish News (and Facebook).

It doesn’t matter to me what happened to these women ten years ago. They were almost adults then and they are fully adults now. There is no excuse for their current manipulative behavior. I cannot sympathize with them.

When victims demand things they are not entitled to min hadin - not Halachically and not morally - there is no room for rachmanus.

The cash register is ringing. They are doing business. This is a Choshen Mishpat matter, not Pirkei Avos. 

אין מרחמים בדין!

Parshas Naso – Guarding our Children and Hot Car Deaths

Shavuos is past and it is already Parshas Naso.

So let us start with a very short vort on the Parsha.

This Parsha teaches us the Birkas Cohanim which most of us also use as part of our personal Birkas HaBanim on Shabbos and before Yom Kippur. In a recent conversation, somebody told me as follows.

The three segments of the Birkas Cohanim can be corresponded to three stages of a young person’s life.

יברכיך – May Hashem bless you and guard over you.

This is when a person is in his childhood years. He needs to grow and thrive. He will be running, climbing, exploring and doing all kinds of risky stunts. For this he needs a special beracha of shemira – protection.

יאר – May Hashem enlighten His face to you and train you.

This is when a person is in his school and Yeshiva years. We pray for Hashem to shine upon him the light of Torah and education for his adult life.

ישא – May Hashem acknowledge you with favor and place upon you peace.

After his schooling and education, he must marry and deal with the outside world. He must learn to get along with his wife and the rest of his society in order to succeed. For this he needs a special beracha of Shalom – peace.

Let us focus on the first segment of the Birkas Cohanim – the need for shemira for small children.

To us, Shavuos and Parshas Naso marks the second half of “summer zman”, when the learning season winds down and the thrills of summer escapades are on the horizon. And things start getting hot. Sometimes very hot. In fact, here in Yerushalayim we were blessed last week with a day or two of almost 100⁰ highs. And when it’s close to 100⁰ in the open air, it can become a real oven inside a car.

We are all aware of hot car deaths. They are among the most heart-wrenching tragedies imaginable. Especially since they are 100% avoidable. It can happen to anyone. The most caring, conscientious, and experienced of parents (or older siblings). All it takes is a very fleeting understandable bout of absent-mindedness and one’s life is lost (a recent news item actually mentioned two twins, R”L), at least two others are ruined and a marriage, even if it survives, is irreparably damaged.

There seems to be an organization that keeps track of these incidents. You can find it HERE. They claim that since they started tracking in 1998 they have documented 749 cases in the US. Comes out to almost 40 per year. This is in the US. Here in E"Y it is even hotter and there's less shade. We are not strangers to these tragedies.

These are the known cases and these are the ones that ended badly. I am certain the number of cases which had a happier ending, but were just as perilous, is in a multiple of – who knows? – 5 or 10 times. I can even attest to perhaps two minor (B”H) incidents involving my own children under my care.

The reason I am writing this is that I very recently saw in a news write-up a very effective method of minimizing these devastatingly tragic incidents and I cannot hold back from sharing it. If it prevents even one incident, it is mekayam an olam malei.

The method is this:

When you strap your child into the car seat in the back, take something you cannot be without such as your wallet, your pocketbook, your cellphone (if you can spare it), or even one of your shoes, and wedge it underneath or behind the child’s car seat.

This way, in case you forget to drop the kid at the babysitter or nursery and go on to your personal destination, when you get there, you will want to retrieve your missing accessory and VOILA! –there’s the baby - quiet as a mouse!

A shoe is a bit awkward but is relatively fool-proof. Wallets and cell phones may still be overlooked (I have left them in my car plenty) but still you will discover it’s absence [hopefully] soon enough.

May we all have a great and safe summer and never ever hear of these needless tragedies.

May the children be blessed with shemira, Torah, and Shalom!

Good Shabbos

  

Additional posts on Parshas Naso – my magnum opus on Evolution:

       Evolution - Fact or Mishu-Gosse?

Prenups 4 – The Great and Powerful Emperor Kim Li the Second [Opinion]

Author’s note – This post is a continuation of a series of posts that began last November about the BDA Prenuptial Agreements (PNA). To see the earlier posts, click HERE. 

As in some of the previous posts, there is some technical Halachic discussion in this post. If you would like to skip the Halachic analysis, read until it begins (first red message) and then skip to where it ends (second red message) and read the conclusion.

In my previous posts about the BDA prenups, I made mention of a mysterious “Emperor” - as in: The Emperor’s Waiver has no Close. Yes, of course, it was all metaphoric but, if something works, I’ll stick with it.

So who is this metaphorical Emperor? What is his name?

His name is Emperor Kim Li Kamosi. Kim Li Kamosi is the eldest son of the Emperor Kim Li Leik the First. And so, he is often referred to as Emperor Kim Li Leik the Second [Opinion] – or just “Kim Li” for short.

What are his strengths? What kind of powers does the great Kim Li have?

Well, according to the Beth Din of America (BDA) the powers of Kim Li are limitless. And so, they have pledged their full allegiance to this mighty Emperor. Here is what they wrote in the closing paragraph of the standard PNA (Paragraph VII):

As a matter of Jewish law, the parties agree that to effectuate this Agreement they accept now (through the Jewish law mechanism of kim li) whatever minority views determined by the Beth Din of America are needed to effectuate the obligations, procedures and jurisdictional mandates contained in this Agreement.

There he is – Kim Li! And, according to the BDA, he is needed to “effectuate the obligations, procedures and jurisdictional mandates contained in this Agreement”.

We understand that Emperor Kim Li is very bold and he bravely stands up against other mighty warriors. In the spirit of the Maccabees, he is like the few against the many. The BDA considers him to be invincible. I don’t agree.

In my original Prenups post, I expressed just one of the reasons why I found this clause to be somewhat disturbing. I wrote:

The Halachic issues involved have turned it (the PNA) into a very convoluted document and, accordingly, a very controversial one. This is evidenced by the strange Kim Li clause at the end of the document. Without too much detail, this clause states that the parties agree to accept whatever halachic opinions are required to make this work, even if they are not the prevailing majority opinions. This, by itself indicates that the BDA acknowledges that the validity of the prenup depends on some off-Broadway opinions.

I repeat that this is only one of the reasons why this clause is disturbing. There are others. The fact is that we don’t really know a whole lot about Kim Li. Kim Li is a very mysterious emperor. Even the greatest of Halachic experts are not certain as to what he can do – to what extent can he wield his power.

The language in the BDA PNA seems to indicate that Kim Li is a Jewish law mechanism that allows us to accept minority views.

Though it may appear to the untrained eye that this is what Kim Li does, this is a gross misconception. As such, I see their statement as a callous distortion and misapplication of the concept of Kim Li.

Start of Halachic discussion - to skip this part, scroll to the next red message.

Kim Li – our Emperor - is greatly misunderstood. In order to know a person, we always need to know his background – where he is coming from. So let’s check it out.

Emperor Kim Li was born in the Rema in Choshen Mishpat 25:2. And he was raised by the Knesset HaGadol, the Shach (Takfu Cohen), and the Tumim (Rabbi Yonason Eibishitz – Kitzur Takfu Cohen). They reveal his true identity and function.

The topic in Choshen Mishpat 25 is: What if a dayan makes a mistake?

In order to determine what to do if the dayan makes a mistake, the Shulchan Aruch needs to tell us: What, exactly, is a mistake? In other words, how must a dayan rule ideally, so that if he rules otherwise, we can say he made a mistake?

Writes the Shulchan Aruch (Mechaber) in 25:2:

If one erred in a subjective issue, for example, a case that is a dispute among Tanaim or Amoraim and [the Talmud] has not ruled explicitly like either opinion, and the dayan ruled like one opinion and was unaware that the case has been universally accepted throughout the [Jewish] world like the other opinion, if he is an expert dayan, the case should be overturned. If it cannot be overturned, he (the dayan) is exempt from reimbursing the injured party.

We have just now been introduced to what is called a sefeika d’dina. A case where we are unsure of the correct Halacha due to conflicting valid opinions of the proper Halacha. At this stage, we can infer two levels of sefeika d’dina:

The first level of sefeika d’dina is the one that the Mechaber openly describes: even though there is a dispute between major authorities, the Halacha has been “universally accepted” according to one view. 

From here we can deduce the second level of sefeika d’dina: there is a dispute between major authorities and the Halacha has not been “universally accepted” according to one view. In other words, the true Halacha is still “up for grabs”.

The Rema deals with the second level. In this case, he says a skilled dayan is one who can evaluate the underlying intent of the Halachos to make distinctions that determine the true Halacha. If he is capable of this, he may rule as he sees fit. But, if he is not that capable, “He may not exact payment from the muchzak (defendant – i.e., the one who is currently holding the disputed money) on a safeik, for wherever there is a sefeika d’dina [in monetary law], we cannot exact money from the muchzak.”

This says to us that whenever there is equal validity to both viewpoints and the case could be ruled either way, the muchzak has the privilege of claiming that the viewpoint that benefits his case is the prevailing one. This is in accordance to the principle of המוציא מחברו עליו הראיה - in a monetary case, the burden of proof is upon the plaintiff (motzee).

This is because the disputed money is currently sitting in the defendant’s pocket and this establishes the status quo. In order to override the status quo and force the defendant to turn over the gelt, the plaintiff must prove conclusively that this is called for. A stalemate in opinions is not conclusive proof and is determined by preserving the status quo.

As such, the Rema in Choshen Mishpat 25:2 is telling us that when there is a dispute in Halachic opinions, unless there is a “universally accepted viewpoint” that favors the plaintiff, the dayan must either on his own, or at the behest of the defendant, say that Kim Li - “I maintain …” - like the opinion that supports my side and preserves the status quo.

And thus, the great Emperor Kim Li Kamosi comes to life!

The only issue we need to resolve is: What is considered a “universally accepted viewpoint” that nullifies the power of Kim Li?

Comes the Shach(SK 17) and tells us:

Many are the Halachic distinctions that determine in which situations the muchzak can say “Kim Li” as well as: if one grabs the disputed item, do we allow him to keep it? The Rishonim and Achronim have not defined it clearly, and they have left room for me to explicate definitions on this issue. And so for this, I have already composed an entire sefer which I call Takfu Kohen in which all of these laws are clarified with clear proofs.

Takfu Kohen is a short sefer (only 158 pages in my edition) in which the Shach devotes all the 158 pages – 130 chapters – to resolve a single Halachic question:

Shimon owes Reuven money from a recent loan. Nobody is disputing this debt. However, Shimon claims that Reuven owes him that much money from a previous business venture that is subject to dispute. Reuven acknowledges the venture but denies this offsetting debt. The Halachic status on Shimon’s counter claim is clearly dependent on differing Halachic opinions among major poskim – Plugta d’rabvasa. Do we say that Shimon must pay the debt he acknowledges since it is undisputed and the disputed money should be litigated separately or is Shimon entitled to retain the money that is currently in his pocket (which will offset his debt) due to the validity of his counterclaim?

In other words, Shimon’s counterclaim is valid according to some major Poskim but not valid according to others. Can he say Kim Li like the poskim who favor him since he has the money or do we say that since he acknowledges that the money that he has is from an undisputed loan which, on its own, he must return, he is not considered a muchzak to the money that he is holding?

The Shach rules that “Pshita!” (no brainer) that Shimon can keep his money and “there is no need to elaborate on this.” Then the Shach adds: "However, since there is much talk about the rules of sefeika d’dina among the Rishonim and Achronim, I feel compelled to write at length…”

With this, he launches the next 157.5 pages on how to figure out exactly who is the muchzak. The entire case rests on the status of muchzak because, as we saw earlier, the muchzak has the upper hand. This is because the muchzak always wins in a true case of sefeika d’dina because המוציא מחברו עליו הראיה – the burden of proof is upon the motzee (plaintiff) - as we saw in the Rema.

And what constitutes a sefeika d’dina?

The Shach writes the magic words – Plugta d’rabvasa – a dispute among great scholars!

Thus, in order to be able to say Kim Li in a Din Torah, there must be a sefeika d’dina which stems from a plugta d’rabvasa.

But now we must recall the words of the Mechaber – when the ruling of the dispute is “universally accepted”, the Halacha is firm. Evidently, not every dispute among great Torah giants (plugta d’rabvasa) is a sefeika d’dina.

So, what is and what isn’t?

The easy thing to say is the Mechaber was referring to Talmudic disputes where we have clear rules. He himself refers to the Tanaim and Amoraim. For these disputes we have time-honored guidelines.

Halacha is like a stam Mishna. In a dispute between Rabi Akiva and a single peer, the Halacha is like R. Akiva. If it is against the Chachamim, the Halacha is like the Chachamim.  Beit Shammai is “not a Mishna” in the face of Beit Hillel. Halacha is not like R. Eliezer. In a dispute between R. Yehuda and R. Meir, we rule like R. Yehuda. Etc.

Rav and Shmuel, we rule in monetary laws like Shmuel and other laws like Rav. R. Yochanan and Reish Lakish, we rule like R. Yochanan. We always rule like Rav Nachman in monetary laws. And, one of the best known – Abaye and Rava, we rule like Rava except in six places. One of the six is the rule that “yiyush shelo midaas is not yiyush”.  If one lost an unidentifiable object but is not yet aware that he lost it, he has not yet forfeited his ownership and one who finds it cannot keep it.

This is the Halacha. Suppose Dave is holding an object that he found yesterday and Sol drags him to Beis Din with proof that the object was formerly his and he just now discovered it was lost (and Dave admits that he found it). If it is determined to be a case of yiyush shelo midaas, the BD will take the object out of Dave’s hands and give it to Sol even though Dave is the muchzak at this moment. Dave cannot say Kim Li that the Halacha of yiyush shelo midaas is like Rava and keep possession of it.

Why not?

Because the Halacha has been universally accepted as in favor of Abaye and not Rava.

All this ends at the end of the Talmudic era. From that point on it is chaos. Do we have rules about disputes between the Rambam and Rabeinu Tam and the Rif and the Rosh and Rabenu Yona and the Ran and the Rashba and the Rivash?

In the times of the Mechaber, there may have been communities that ruled purely by the Rambam (Teiman and N. Africa), or by Rabeinu Tam and the Baalei Tosafos (France and Germany) or by the Rosh.  But the truth is that every dispute among these greats is a plugta d’rabvasa.

The Mechaber wrote the Beis Yosef and, later, the Shulchan Aruch to definitively rule which Rishonim prevail in any issue.  Along came the Rema and he made other choices. And, in fact, a dispute between the Shulchan Aruch and Rema in Choshen Mishpat is a sefeika d’dina by both Ashkenazim and Sefaradim and either one can say Kim Li to the side that benefits him.

Immediately following the era of the Shulchan Aruch and Rema arose three luminaries that attempted to make some semblance of order. The Knesset Hagedola (Rav Chaim Benvenishti of Turkey), the Shach (Takfu Cohen) and Rav Yonason Eibishitz in the Tumim (Kitzur Takfu Kohen).

The main question is: Is every dispute a sefeika d’dina? What about if there is a clear majority in Poskim to one side?

In response, everybody seems to agree that when a solitary posek stands against the rest of the world, we cannot say Kim Li like that lone posek. The Shach says there must at least be two of equal stature who independently maintain the same [less-popular] ruling.

The Tumim adds (indicated by the Shach) that even if there are more than one posek supporting the less-popular view, if it is an overwhelming clear majority (Rov Hanikar) to the popular opinion, one cannot say Kim Li like this kind of minority.

Comes the Knesset Hagadol and clarifies, that this applies only if it is a Halacha where all the poskim give a ruling. But if it is something that only three or four poskim contend with at all, then one posek against two or even three others may not be considered a lone posek. Who knows what the others would say if asked?

The Knesset Hagadol adds that some alliances such as “Rambam and his teachers” or the Rosh with the Tur (and even Maharam Rottenberg) only count as one opinion.

But things still get confusing. The Knesset Hagadol  says that in a case where it is questionable whether or not one can say Kim Li, one cannot say Kim Li.

Why can't the muchzak say Kim Li like the opinion that one may say Kim Li?

Moreover, the Tumim writes that any ruling in Shulchan Aruch that is written by the Mechaber and not objected to by the Rema (i.e., unanimous) even though it may be predicated on a strong dispute in the Rishonim (plugta d’rabvasa), is not subject to Kim Li.

I also saw brought down (Chavos Yair brought in PT 25:2) that there seems to be a rule in Choshen Mishpat that in case of a dispute between the SM”A and Shach  - both confirmed “rabvasa” – the Halacha is like the Shach because he is the Basra (he was later – just like Rava). Some opinions say that this means that one cannot say Kim Li like the SM”A against the Shach.

Hold on! The SM”A is no less erudite than the Shach (both were Kohanim). In fact, he was older – died seven years before the Shach was born. Should we say just because the Shach was able to dispute him and he (the SM"A) cannot respond because he was one generation earlier (and deceased), that we do not have a bona fide plugta d’rabvasa and a muchzak who claims Kim Li like the SM”A’s viewpoint must lose his case?

How does this all play out?

Consider this case which, astonishingly, is a pivotal issue in the BDA prenups:

Choshen Mishpat 60:2 writes the Mechaber:

If one obligates himself to an obligation that is not a fixed (finite) amount, for example, one who obligates himself to support his fellow man (or his ex-wife - YH) for five years [or an undefined amount of years –Rema], even if a kinyan was made, the Rambam maintains that he is not obligated. And all those [Rishonim] who came after him disputed this ruling and say he is indeed obligated – and this is what we accept.

So a case of an obligation for an undisclosed amount of money is a Halachic dispute where the Rambam is the lone dissenter against all the other Rishonim. As such, the Mechaber goes, out of character, and explicitly rules against the Rambam. Note - the Rema does not object to this. (This certainly helps the BDA PNA.)

So, the question arises, once the Shulchan Aruch brings both opinions, even though he clearly sides against the Rambam, could the one who declared the obligation later say Kim Li the Halacha like the Rambam and free his obligation?

The Shach on the spot brings the opinions of two great poskim who preceded him – Maharashdam and Maharshach - who say there is no reason not to say Kim Li like the Rambam. Evidently they do not support many of the rules that we stated in the name of the Shach and Tumim. The Shach immediately says he argues and holds that there is no room to say Kim Li here for all the reasons we previously mentioned.

So what happens today? Even though the great Shach and Tumim rule unequivocally that there is no room for Kim Li here, the Shach himself brings two poskim of great stature that he respects and says that they do support Kim Li. So if the litigant wants to claim Kim Li like the Maharashdam and Maharshach against the Shach, why could he not?

It seems that even Rav Elyashiv, ZT”L was unsure about this (Kovetz Shiurim 1:167).

So, what to do?

I asked a few dayanim in Har Nof including the Av Beis Din of the Har Nof BD and they told me that the Batei Dinim today generally follow the rules of the Shach, Knesset Hagadol and Tumim and in this case would probably not allow Kim Li. That said, they certainly follow what the Knesset Hagadol says that, at the end of the day, it is all up to the discretion of the dayanim.

The upshot of all this has two main points:

·         We normally do not accept Kim Li for a lone wolf opinion and even for a shared opinion if it is opposed by an overwhelming majority that says otherwise. This is even if the minority opinions are truly rabvasa (as is the Rambam) and how much more so if they don’t measure up in stature to the prevailing Poskim.

·         When there is a universally accepted position on a Halachic matter, we very rarely will allow somebody to say Kim Li even if there are prominent dissenters.

It is time to return to the BDA Prenups but, before we do, let us recall that all this started in the Rema in Choshen Mishpat 25:2 that brought us Kim Li (or sefeika d’dina) to start with. Let’s have a look at what the Rema writes immediately following these words (note- this is one of the most fundamental passages from Rema in all of Shulchan Aruch):

[All the above about sefeika d’dina is in monetary cases] but if it is a ruling of hetter and issur (Yoreh Deah – things such as Kashrut, Aveilus, Family Purity, Ribis, or Hilchos Shabbos, etc.), and it is a Mosaic issue (issur d’oraysa), we must be stringent [on a sefeika d’dina] and if it is a Rabbinic issue (issur d’Rabanan), then we go after the lenient opinion. And this is only when the two authorities are equal but we do not rely on a lesser authority in the face of a greater one. And likewise if it is a lone opinion in the face of the majority, we go after the majority opinion in all cases and this is even if the majority consensus is not based on the same reasoning by all authorities…

The Rema is the one who tells us that, for a monetary sefeika d’dina, we can rely on the minority opinion to preserve the status quo. And now we see to what great lengths the same Rema goes to stress that this is only for monetary cases! In all other areas of Halacha, there is no concept of Kim Li whatsoever!

End of Halachic analysis and start of conclusion of post.

So we have now revealed who the great Emperor Kim Li Kamosi really is. He is not as powerful as we may have thought.

·         Kim Li is only used to support the position of the muchzak to preserve the staus quo and to keep his money. It is never used to support the position of the motzee (plaintiff) to allow him to exact money from the nitva.

·         Kim Li is not used on a dispute of the Rishonim once the Achronim have agreed on a particular viewpoint.

·         Kim Li is not used in a location that exclusively follows a specific Rishon for all Halachic matters.

·         Kim Li is not used to support a lone opinion or even two or three poskim against an overwhelming majority.

·         Kim Li is exclusively a function of Choshen Mishpat and is not used for any non-monetary Halachic matters.

Now – FINALLY! – let’s refer back to the clause in the BDA PNA and see how disturbing it really is.

I already complained that it implies that this whole PNA needs to rely on some “minority viewpoints” to be effective.  Essentially, they are conceding that this will not work according to all authorities. There may be a plugta d’rabvasa in effect!

But there is more.

The BDA is erroneously claiming that Kim Li is a “Halachic mechanism” that can allow us to follow a minority opinion.

No! This is not what Kim Li does. Kim Li is a Halachic mechanism to settle a sefeika d’dina by allowing the muchzak to call in those poskim that support his position. In most cases it is dealing with an equilateral plugta d’rabvasa, not necessarily a minority position. In some cases, even if his supporters are not the majority, if they are great scholars – rabvasa – we must respect their viewpoint because, even though in this case they are the minority, it is still a valid sefeika d’dina.

Moreover, the BDA is employing Kim Li as a “mechanism” to justify being motzee money from a muchzak!

Kim Li l’hotzee?? Have we ever heard of such a thing?

Well, there may be such a thing, but not because of Kim Li.

Emperor Kim Li Kamosi is not the only bully (Halachic mechanism) in the schoolyard. There is a much more powerful Emperor in the region.  His name is Emperor Tnai Mamon.

Okay, his full name is Emperor Kol Tnai She’b’mamon Kayam – any mutually agreed condition in monetary matters is upheld. This means that in any place in Choshen Mishpat that deals with a transaction or a loan or shemira, a deal or contract between two people, the parties can agree to whatever Halachic standards they want. The laws of Choshen Mishpat are here to teach us how should a Beis Din rule in case the litigants did not set mutual terms. But if they agree on the terms up front, the terms of the agreement stand.

So if a shomer chinam agrees to take responsibility for theft, he is responsible. He cannot tell Beis Din that he agreed to it but Choshen Mishpat exonerates him. If a lender lends an item on condition that there is no exemption of baalav imo (a good idea, by the way) and the borrower acknowledges this agreement, he cannot later claim baalav imo in BD.

This Emperor is much more powerful than Kim Li. As such, the Knesset Hagadol writes in his rules on Kim Li (Rule 30):

We only allow Kim Li in a situation where the litigants did not previously agree to follow the rulings of a given posek. (Or, as mentioned earlier, in a location where there is no custom to follow a specific posek.) However, when there is a custom [or agreement] to abide by a given posek, the muchzak cannot say Kim Li… [this may be] even if this posek is a solitary posek against the majority!

This is really Emperor Tnai Mamon at work.

But there is one thing that both Emperors – Kim Li and Tnai Mamon have in common. They only work in Choshen Mishpat – monetary laws. For anything that is governed by the laws of Yoreh Deah, Even HaEzer or Orach Chaim, they are both totally powerless.

So the passage of the PNA is doubly disturbing – if they are referring exclusively to money matters (mamonus), why employ the weak Emperor Kim Li? Why not the all-powerful Kol Tnai She’b’mamon Kayam? And if they are not dealing exclusively with mamonus in this clause, for anything that is a plugta d’rabvasa in Hilchos Issur (Ishus, Geirushin, whatever),  there is no Kim Li and no Tnai Mamon. If it’s a sfeika d’oraysa, we must be machmir – period! No excuse for minority opinions.

I, B”H, have been happily married for over 30 years (bli ayin hara). I did not sign a PNA, so I have no stake in this controversy. I truly want what is best for Klal Yisroel. But I wrote in a previous post (HERE) why prenups like this are not a boon for us. Besides, when I am wearing my Toen Rabani hat, it's my job to be a fein-schmecker on Shulchan Aruch and to keep the dayanim on their toes.

The truth is that I have a tremendous amount of respect for Rabbi Mordechai Willig, Shlita. I am a good friend of his brother from Kew Gardens. I think he is a tremendous Talmid Chacham (and his brother). I really would expect better from him.

As for the rest of the BDA, I am not sure if they have really learned Choshen Mishpat. Either way, I think they need to get themselves another Emperor.