It says in Choshen Mishpat Siman 9 that it is forbidden for a Dayan (judge) to take a shochad (bribe). What about if a particular Dayan is dealing with a case between Reuven and Shimon, both of whom want to give the Dayan $500 each. Is this still called a "shochad" if he is receiving the same amount of money from each side of the case?
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3Are they doing this jointly (we want to pay the dayan for his efforts), or is each doing it on the sly and the amounts just happen to be the same? If the latter, why wouldn't the first one be a bribe at the time (he doesn't yet know about the second)?– Monica CellioCommented Jan 23, 2013 at 14:06
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down vote? ....– YehoshuaCommented Jan 23, 2013 at 22:31
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3I think one would reasonably conclude from (a) the pshat of parshat Shoftim and (b) common sense that a bribe is a bribe no matter what other bribes you're taking. I'd like to see some foundation in the question for the (counter-intuitive) possibility that this might not really be a bribe. Or, in other words, what have you learned or heard that leads you to this question?– Monica CellioCommented Jan 23, 2013 at 23:11
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@MonicaCellio The answer below with all of the sources validates the question (so I left out any "disclaimer" that I had originally written in the question since at first I didn't believe it was so much of a question until I found out it's a gemorah in Kasubos with many achronim!– YehoshuaCommented Jan 24, 2013 at 6:28
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1Yehoshua, I'm not saying the core question doesn't have merit, but in my personal opinion a question that relies on following a link-only answer for context is weak. Questions (and answers...) should stand reasonably on their own. I'm not asking for a whole treatise, just some basis for thinking the "obvious" interpretation (which turns out to be true) might not apply. Thanks for considering the feedback.– Monica CellioCommented Jan 24, 2013 at 13:52
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3 Answers
R' Hershel Schachter was quoted in an interview with Ami Magazine, lamenting how Batei Din often (mal)function (emphasis mine):
Q: Do you have a problem with the borerim system [in which two of the dayanim are chosen by the litigants and the two dayanim choose a third]?
A: The borerim system is also a shanda. A lot of the borerim act like toanim. I was involved in a din Torah. The borer took shochad (bribes). I had to resign from the case. He felt insulted. It was before Rosh Hashanah, and he told me that he was not going to be mochel [forgive] me. I told him, “I don’t need mechila. You took shochad. You’re pasul to be a dayan.” It says in Shulchan Aruch that you can’t have one litigant pay his dayan and the other pay his dayan, unless, which Reb Moshe writes in a teshuva, it is clear that both are being paid the same amount, in which case each one can pay his dayan and they both pay the third. But that isn’t what happens. They don’t pay the same amount. The payment depends on how long each one bothers the dayan. So they don’t pay the same amount and it is true shochad.
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I think there is a distinction between this case and those of other answers which forbid. Here payment is part of the borer procedure, and also creates a reasonable case. Because if it is not for that, the judge is misleading the parties – who are guilty because they wanted to bribe him – to think that he is bribed only by him. So this seems to be a form of theft.– BinyominCommented Oct 9 at 10:13
See this post from Bein Din L'Din, explaining that it's generally prohibited.
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7This answers the question. However perhaps you could post here in the answer itself some of the basic sources that he quotes– YehoshuaCommented Jan 23, 2013 at 14:01
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4When the answer is updated and all of the relative sources are posted here I will accept the answer– YehoshuaCommented Jan 24, 2013 at 9:51
The Sm'a in that siman s.k. 2 says explicitly that it is not allowed even though the regular logic of bribery does not apply. He says to look at what he wrote in the Drisha. There he quotes a gemara in Ksuvos 105a which says taking bribery even in order to judge justly is assur. Tosafos and the Meiri there disallow the taking of money from both parties in the form of bribery. Taking from both parties in the form of payment for judgement would be a different issue, as brought in the Shulchan Aruch in that siman siff 5.
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Fantastic, it says there (in Hagahot Vehearot, in the name of Meiri and Hafla'ah) that even if he receives from both of them, there could be still a problem that the judge would prefer compromise instead of din gamur. Which also might be a perversion of justice.– BinyominCommented Oct 9 at 10:19
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That sounds strange, peshara is always preferred to din. Which hagaos viha'aros are you referring to?– user6591Commented Oct 9 at 11:16
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Not always preferred, if I remember the sugya in Sanhedrin correctly, it is a machlokes there. Here is the Hagahot Vehearot on Prisha (from Shirat Devorah edition of Tur Shulchan Aruch): i.imgur.com/Rao5902.jpeg– BinyominCommented Oct 9 at 13:47
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מצוה לומר לבעלי דינים בתחילה הדין אתם רוצים או הפשרה אם רצו בפשרה עושים ביניהם פשרה וכשם שמוזהר שלא להטות הדין כך מוזהר שלא יטה הפשרה לאחד יותר מחבירו וכל בית דין שעושה פשרה תמיד הרי זה משובח במה דברים אמורים קודם גמר דין אע״פ ששמע דבריהם ויודע להיכן הדין נוטה מצוה לבצוע אבל אחר שגמר הדין ואמר איש פלוני אתה זכאי איש פלוני אתה חייב אינו רשאי לעשות פשרה ביניהם אבל אחר שאינו דיין רשאי לעשות פשרה ביניהם שלא במושב דין הקבוע למשפט ואם– user6591Commented Oct 9 at 21:58
