Photo Credit: Jewish Press

Mr. Baum and Mr. Deutsch had a monetary dispute and approached a rabbi in their shul, Rabbi Cohen, to adjudicate it.

They arranged a date for the din Torah, but Mr. Baum was sick and had to cancel. A few weeks later, Mr. Baum called Rabbi Cohen. “I will be flying overseas tomorrow, and will be away for a few months. Is there any way we can meet tonight?” he asked.

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“I have to go to a relative’s wedding tonight,” replied Rabbi Cohen, “but if it’s really important, I can leave work an hour or two early.”

“If that’s possible,” replied Mr. Baum, “we would appreciate it.”

Rabbi Cohen heard the case that afternoon and afterward asked the parties for compensation for the two hours of work he had missed as a result of adjudicating their case.

Mr. Baum and Mr. Deutsch were taken aback by the request, so the three parties decided to approach Rabbi Dayan.

After hearing what had happened, Rabbi Dayan said, “The Mishnah [Bechoros 29a] teaches that, in principle, a dayan should not charge anything for rendering a verdict. He should, however, be partially compensated for any work he may have missed as a result.”

“A similar halacha applies to one who retrieves a lost item,” added Rabbi Dayan. “He may not charge for retrieving it since doing so is required as part of hashavas aveidah, but he may ask for partial compensation for any work he didn’t get to do as a result. He can also stipulate beforehand that he will retrieve the lost item only if he receives full compensation for any work he could otherwise do during that time. The Shulchan Aruch states that a dayan can make this same stipulation.” [Choshen Mishpat 265:1; 9:5]

“What if the dayan didn’t make any stipulation beforehand?” asked Mr. Deutsch.

“The Sma writes that, even so, he is entitled to partial compensation,” Rabbi Dayan answered. “However, the Taz rules that the dayan is not entitled to any compensation.”

“Why not?” asked Mr. Deutsch. “Why should he get nothing if a person who returns a lost item at least gets something?”

“The Taz [9:5] writes that the litigants can claim that they would have gone to a dayan who was not working and would not have charged them had they known beforehand,” replied Rabbi Dayan. “The owner of a lost object cannot make the same claim since the object may be permanently lost if the person who sees it now doesn’t pick it up and return it to him.

“Whom do we follow l’halacha?” asked Mr. Baum.

“The Nesivos [9:4] and Aruch Hashulchan [9:7] follow the Taz,” replied Rabbi Dayan. “However, Shevus Ya’akov [1:142] rules like the Sma in accordance with the simple reading of the Gemara in Bechoros, since the litigants knowingly came before this dayan. Furthermore, nowadays it is known that dayanim take a fee, so he is considered to have made a stipulation beforehand even if he didn’t actually do so.” [Pischei Teshuva 9:11]

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Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.