I plan to take someone to a din Torah. I was thinking about whether I should hire a to’ein rabboni or not. One reason I thought of hiring one is that perhaps I will forfeit a possible claim simply because I neglected to ask for it. But perhaps this is not a concern since the dayanim will give me anything I am entitled to even if I fail to claim it, and therefore I can save the cost of a to’ein. How do things work?
The first to introduce the issue is the Ramo (Darkei Moshe 17, 6). He rules that even if the dayanim, based on the story which the plaintiff told in beis din, realize that he is entitled to more than what he asked for, they are not allowed to award him what he could have asked for. Rather they can at most grant him what he claimed.
The Ramo cites two sources for his ruling. One source is a responsum of the Rivash (227). In that case, the claimant in beis din offered the defendant one of three choices. However, the beis din in its ruling offered the defendant only two of those choices. The Rivash said this was a mistake on the part of beis din because even if the defendant was not entitled to this choice according to the strict letter of the law, once he was offered the choice by his adversary he became legally entitled to this choice. Thus, beis din, in failing to offer this choice, erred and beis din must correct its ruling
The second proof of the Darkei Moshe is based on a Gemara (Bava Basra 5A) where the amoro, Ravino built a fence which assisted his neighbor, yet the neighbor refused to participate in the expense. Ravino asked for a small amount which Rava awarded him. The Darkei Moshe proves from the fact that Rava did not award Ravino a larger amount, to which he was entitled according to the law, that beis din is not allowed to award someone more than he asks for.
The Ramo (17, 12) records his ruling in his notes on the Shulchan Aruch as well. The Sema (25) agrees with the Ramo and just adds that the dayan must threaten the defendant that if he doesn’t comply with the ruling of beis din then he will have to pay the full amount that the plaintiff is entitled to. It is clear from the Sema and the Bach that they understood that the Ramo rules that even if the claimant failed to ask for all he was entitled to out of ignorance, beis din is not allowed to award him what he is entitled to.
The Shach (17, 15) disagrees with the understanding of the Bach and Sema and claims that in case it is clear that the claimant’s failure to claim all he was entitled to stems from ignorance then the dayanim award him all he is entitled to. He claims that the Ramo’s ruling applies only to situations where it is possible that the claimant purposely failed to claim the larger amount.
The reason the Shach disagrees with the Bach and Sema is that in general we have a principle that when the basis of one’s actions is a mistake, the resultant action is invalid. For example, if one is mochail because he had wrong information the mechiloh is invalid. Similarly, if one buys something based on mistaken information, the sale is invalid. Therefore, if one neglected to claim something out of ignorance why shouldn’t beis din award him whatever he deserves since the only reason not to give him all he is entitled to is mechiloh and if the cause of mechiloh is a mistake, the mechiloh isn’t meaningful? We should note that the Taz concurs fully with the Shach.
The Me’il Tseddoko (responsum 53) and Tumim also rule that if the reason for the claimant’s failure to request something is lack of knowledge, beis din claims for him. The Tumim just adds that if we are in doubt, then if the claimant is a talmid chacham we assume that his failure to claim was a conscious decision on his part to waive a possible claim. But if he is not a talmid chacham then we assume that the cause was lack of knowledge.
The Ketsos (17, 3) supports the understanding of the Sema. He proves that the Rivash and several others are of the opinion that when one mistakenly forgoes a claim because of ignorance of the law, it is legally valid. Even though we normally rule that when one foregoes a claim due to ignorance it is not valid, but if the mistake was a legal mistake it is valid. According to this view the ruling of the Ramo is a matter of dispute and most poskim disagree with the Ramo’s ruling.
The Nesivos agrees that if the cause of the claimant’s failure to claim was ignorance then we don’t take it into account. He disagrees with the Shach as well, arguing that if we are uncertain and we are dealing with people who are not Torah scholars, we should at least assume that the source of the silent waiver is ignorance and therefore carries no legal weight. He rules that in any case if the claim which the claimant failed to make would have entitled him to monetary compensation from the defendant, beis din will award the claimant with everything he is entitled to. The two sources which the Ramo cites were situations where the claimant’s silence did not engender a waiver of any monetary claim.
The Maharsham (5, 4) was asked concerning the actions of a dayan in a case which involved a loan with interest. The borrower did not claim that he was not allowed to pay anything above the principal because of ribbis. But after the dayan asked whether they had executed a heter issko, the borrower did claim that there was an issue of ribbis. The Maharsham ruled that the dayan acted properly in asking the question, even though he made the defendant aware of the claim, because the Ramo only refers to a purely non-monetary issue. Also, interest involves an issur and it is in the dayan’s personal interest that a fellow-Jew does not violate the laws of ribbis. Therefore, the dayan was really acting on his own behalf in asking if there was a heter issko.
In conclusion, the majority of poskim rule that beis din should grant a plaintiff all that he is entitled to, unless it is plausible to assume that his failure to claim something stems from a conscious decision on the part of the claimant to forego that claim.