Parashas Devarim includes the imperative to judge with honesty and justice: “Hear the disputes between your brothers, and judge fairly – between a man and his brother and between a man and a foreigner” (Devarim 1:16). One of the core principles of the Torah legal system is the obligation to bring the truth to light, and to ensure that fair judgment is given.
We find a powerful expression of this principle in the words of Chazal, who teach: “Any judge who passes judgment that is absolute truth, even for one moment – he is considered as though he is a partner with Hashem in the creation of the world” (Shabbos 10a).
In the present article we will discuss the issues of a Dayan who says that he does not know how to rule. What is the procedure in court when a Dayan says this? Is it permitted for a Dayan who does know the answer (in his opinion) to assert ignorance? Are there other other strategies that a Dayan may use in order to ensure that the correct judgment is issued?
We will discuss these questions, among others, below.
Can a Dayan say, “I Don’t Know?”
When there is a dispute among the members of a Beis Din, the halachah decrees that we follow the majority verdict, as Chazal derive from a Torah verse (Shemos 23:2). Yet, what is done when there is no majority verdict? The Shulchan Aruch (18:1) addresses the question:
“If one says guilty and one says not guilty and the third does not know; or even if two say not guilty or guilty and one does not know – another two judges must be added to the panel, making five. They discuss the case among themselves: If three acquit and two convict, he is acquitted; if three convict and two acquit, he is convicted.”
Thus, whenever one of the three judges on a Beis Din says that he does not know the law in a specific case, another two judges are added.
The Sema (3) explains that the reason for this is that only if the third judge disagrees with the other two is his opinion overruled by the majority. Where the third judge gives no opinion, it is as if the ruling is issued by a Beis Din of two rather than a Beis Din of three – and this is therefore an invalid ruling. A judge who claims he does not know is considered as though he is not participating. Indeed, unlike judges who issue verdicts, a judge who does not know need not give the reason for his inability to decide (Shulchan Aruch 18:3).
After two new judges are added, they debate the case once more among themselves, and are counted up: If three (or more) agree on the judgment, a verdict can be issued; if there is no majority of three, two more judges must be added (Shulchan Aruch 18:2).
We learn that a judge may say he doesn’t know the halachah for the case at hand, and if so more judges are added.
Falsely Claiming “I Don’t Know” as a Deliberate Strategy
What is the halachah if a Dayan does know the halachah (he has a definite opinion of it), yet his opinion is in the minority among the judges. If he voices his opinion, Beis Din will issue a ruling that he considers wrong. However, if feigns ignorance another two Dayanim will be added to the panel, and perhaps they will agree with his position.
Is it permitted for the Dayan to lie – to claim he doesn’t know the halachah when in fact he has a clear position – in order to bring the truth (as he sees it) to light? Or is this a forbidden strategy for a Dayan?
Shut Beis Yaakov (no. 15, cited by the Pischei Teshuva 18:4) writes that doing so is forbidden, because this reflects poorly on the remaining judges – others will claim that extra judges were added because they did not know the halachah.
We can add to this that the very halachic obligation of following the majority appears to prohibit the false claim of ignorance: The Torah instructs us to follow the majority opinion of Beis Din, and if a Dayan finds himself in a minority he should accept this as being the halachah.
However, we find in Shut Shevus Yaakov (Vol. 1, no. 138) that it is permitted for a Dayan to falsely claim that he doesn’t know the halachah in order that extra Dayanim should be added and the truth be (hopefully) brought to light.
In the case of Shut Shevus Yaakov, of the three on the panel only one was a Torah scholar, whereas the other two were ignorant. This raises a special concern for the truth. However, the Shevus Yaakov does not make a distinction between this special case and a regular Beis Din, and he apparently maintains that it is always permitted for a Dayan to feign ignorance to bring the truth to light.
The Birchei Yosef (18:4), however, does make the distinction, writing that where the other members of the Beis Din are inept judges, it is permitted to claim “I don’t know” for the sake of the truth, but where they are worthy judges it is forbidden to do so.
Distancing Oneself from Falsehood
Another principle worthy of note is the obligation to distance oneself from falsehood.
The Gemara (Shevuos 31a) notes that it is forbidden to use falsehood in a Beis Din environment, even where the intention is that the truth should come to light. The Gemara discusses a case in which three joint lenders are faced with a borrower who denies the entire loan. If they simply make their claims, they will lose all their money for want of proof. Yet, they might try to play the following trick: One of them might claim the entire debt as his own, and the others will serve as witnesses. This way the claimant will be able to collect the full sum, and then share it with the his co-creditors.
The Gemara writes that this is forbidden, because of the obligation to distance oneself from falsehood – mi-dvar sheker tirchak.
Based on this Gemara, the Rashba (Vol. 3, no. 81) writes that it is forbidden to make a false claim in Beis Din, even when this is the only way to bring the true judgment to light. A person’s behavior in the courthouse must be impeccable, and no falsehood is tolerated.
It seems correct to apply this principle to the judges: A judge may not claim false ignorance of the halachah, even where his intention is to bring the truth to light, for this infringes upon the obligation to distance oneself from falsehood.
Yet, we find a number of halachos that seem to contradict the above principle. One prominent halachah is noted by the Shach (Choshen Mishpat 75:57), who addresses a case of an inheritor from whom $100 is claimed. The inheritor admits he owes $50, yet denies owing the other $50. The Shach advises the inheritor not to deny the remaining $50, but rather to claim that he knows he owes $50 and does not know about the remaining $50. By this means, he will be exempt from taking an oath, but otherwise he would be obligated to take an oath.
Although at the beginning of the Siman (Choshen Mishpat 75) the Shach mentions the problem of falsehood in Beis Din, he writes that this problem will not apply here. He proves the point from the fact that the same advice is given by the Raavad. If there were a problem of speaking falsehood, the Raavad would not give such advice.
The Shach does not explain why the issue of falsehood does not apply to this case. It is possible, however, that in the cases mentioned by the Gemara of the three creditors, the falsehood causes a technical perversion of justice: Instead ruling that the money must be paid to the three creditors, Beis Din falsely rules that the money is owed to a single lender. In the case of the Shach, however, the true halachah will be ruled by Beis Din, and the only difference is the inheritor’s obligation to make an oath.[1]
Based on this distinction (and other possible distinctions; see a discussion in Rabbi Dovid Grossman, “Extracting Money with False Claims,” Umka De-Dina, Vol. 3, pp. 428-434) it is hard to apply the reasoning of distancing oneself from falsehood to the case of a judge claiming ignorance of the halachah.
Ignorance after Revealing One’s Opinion
An interesting case arises where a Dayan has already revealed his opinion to his colleagues, yet wishes to claim ignorance to add extra judges.
The issue was raised in the Appeals Court of the Israel Rabbinical Court (case no. 2-12-6745), in which an appeal was made against the judgment of a local rabbinical court in a question about the validity of a conversion.
The rabbinical court had ruled that a conversion should be retroactively invalidated, but the majority of the appeals court held that the conversion cannot be invalidated. However, one of the three Dayanim on the appeals court, Rabbi Sherman, claimed that the conversion was invalid.
Seeing that he was in the minority, Rabbi Sherman asked the president of the rabbinical courts, Rabbi Shlomo Amar, to add extra judges to the panel – a request that was refused. At that stage Rabbi Sherman decided to claim ignorance of the halachah, writing in his request: “Therefore, although my opinion is well-known to my peers and has been explained at length… I claim, ‘I don’t know’ in order that extra Dayanim should be added to the panel. Perhaps by this means the true halachah will be brought to light.”
Based on the rationale for why judges are added when a Dayan claims not to know the halachah, it appears that in this case there are no grounds to accept the request. When a Dayan has no opinion, he therefore does not join the panel of three in issuing the judgment. When his opinion is known and the claim of ignorance is only a ploy, the procedure of adding judges should not apply.
Rabbi Amar refused the request: “Once he has revealed his opinion in the matter, [a judge] has already joined in the judgment, and he is a minority against a majority. His claim to ignorance … cannot change the ruling, for it is as though he presents his own opinion, yet shouts that we should not follow the majority ruling.”
Rabbi Amar backed up his decision by citing the Chavas Yair (no. 147), who rules that a Dayan can only claim ignorance of the halachah if he states that he has retracted a previously stated position; even then, the Chavas Yair writes that it is highly improper to do so. If, however, a Dayan does not retract his original position, it is clear that no claim of ignorance can be made.
It is interesting to note that in the case of retroactive invalidation of conversions, another claim that could be made is that there is no actual need for a Beis Din to decide that the conversion was invalid, so that the discussion was not relevant to the case at hand. Also interesting is that although the request was refused and Rabbi Sherman found himself as a minority, in a similar case that arose a year later (case 1-64-5489) the positions were reversed, and the court unanimously adopted Rabbi Sherman’s position as the halachah.
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[1] See also Ritva (Kesubos 21a), who relates to a case in which a plaintiff makes use of a forged promissory note to prove his case. The Ritva rules that it is permitted for the defendant to claim that the debt has been paid back, though the truth is that the debt never existed. Since claiming the truth would result in a false judgment based on the forged promissory note, it is permissible to claim a falsehood to establish a true ruling. A similar ruling is found in the Penei Yehoshua (Kesubos 28a) concerning forging a document.
