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January 31, 2015 / 11 Shevat, 5775
 
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Must A Judge Return A Bribe?


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This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.

One of the many halachos written in this week’s parshah is the prohibition for a judge to accept a bribe. The Torah testifies that bribery works and can blind the eyes of the righteous; thus it is forbidden to accept any form of bribery – even for one to judge correctly.

The Rambam writes in Hilchos Sanhedrin 23:1 that if one transgressed and accepted a bribe, he must return the bribe to the one who gave the bribe when it is requested to be returned. The Rambam’s implication is that even though the judge wrongfully took the money, he is not required to return the money until it is requested of him. This differs from most other instances whereby one wrongfully took money from another person. For example, when one steals money from another person the thief is obligated to return the money regardless of whether the victim of the theft requests the money. However, regarding returning a bribe, the Rambam and the Shulchan Aruch in Choshen Mishpat (C.M.) 9:1 imply that one is not required to return the bribe unless it is requested of him.

The S’mah (C.M. 9:3) explains that one is not required to return the money if it is not requested of him because it was given to him willingly. Whenever one was wrongfully given money willingly, one need not return it unless it is requested of him. The S’mah continues by saying that there is one exception to this rule: giving interest on a loan. One may not pay interest on a loan; if he does, the lender must return the money. Even though the borrower willingly gave the interest to his lender, the S’mah says that the lender must return the interest payment even if the borrower does not request it from him.

The Taz disagrees with the S’mah and says that the same rule applies to interest payments as well and that the lender need not return the money unless the borrower requests it from him. However, regarding a bribe, both agree that one need not return the money unless it is requested of him.

The Minchas Chinuch (mitzvah 83) and the Tumim (C.M. 9:2) explain that the reason that one need not return the money that was given as a bribe, unless the one who gave it requests it back, is because since he willingly gave it we consider as if he has forgiven (mochel) the owed money until he requests it back. Once he requests it back we can no longer assume that he is being mochel him the money that is owed him. Therefore, regarding a bribe and (according to several Acharonim) interest payments, one who gave the money willingly is assumed to have forgiven the money until further notice. This forgiveness is not a complete forgiveness, for when one genuinely forgives another person money that he is owed, he cannot later retract his forgiveness. But here it is not a complete forgiveness.

The Rambam (Hilchos Malveh V’loveh 4:13) and the Rush (Baba Metzia 5:2) bring an opinion that states that a borrower cannot forgive his lender from returning the interest payments to him; rather, the lender must return the money even against the will of the borrower. The Rambam and the Rush disagree with this opinion, saying that the borrower may forgive his lender and allow him to keep the interest payment. They explain that this is because once one pays interest the lender is obligated to return the money – as if he had stolen it. When one steals money the one who was robbed may forgive the thief, allowing him to keep the stolen goods, just as one may forgive any debt that is owed him. However, the opinion that the Rambam and the Rush quote, that a borrower may not forgive a lender the interest payment, should also hold that the lender must return the money even if it is not requested of him. This is because the reason that a lender does not need to return the interest until it is requested is because we view this situation to be as if the borrower forgave the lender the money. Yet, according to this opinion, a borrower may not forgive his lender from returning the interest payment. Therefore the lender would be obligated to return the interest even if it is not requested of him, since it could not have been forgiven.

It is unclear whether this opinion would also hold that one may not forgive the judge who received a bribe from returning it. If this opinion extends to bribes as well, a judge would be obligated to return a bribe even if it is not requested of him. The Kitzos (C.M. 9:1) rules that according to this opinion it does apply. Therefore, according to this opinion, a judge is required to return a bribe even if it is not requested of him.

The Ritva, in Baba Metzia 61a, offers this explanation on the opinion that states that one may not forgive his lender the interest payment: We derive that one must return interest payments from the pasuk, “v’chei achicha imach(Vayikra 25:36). The Gemara says that this obligation only extends to the one who received the interest and not to his heirs. If one dies after receiving interest on a loan, his children are not required to repay the borrower. (Generally, heirs must repay any debt that the deceased had from the estate that they inherited.) However, they are not obligated to repay interest payments that the deceased was to return. This is because returning interest payments is a mitzvah that the Torah only wanted the lender to do. Therefore, this debt cannot be forgiven by the borrower since the Torah wants him to carry it out. Based on this we can assume that, regarding returning a bribe whereby we do not find the same specific requirements, all would agree that the bribe may be forgiven and as a result a judge would not be required to return a bribe unless it was demanded of him.

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One Response to “Must A Judge Return A Bribe?”

  1. Mark Peters says:

    I assume that in their minds to give the bribe which they should have never took to a charitable cause.Might I suggest the refugee relief fund for Gaza.

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