The Definition of Gemar Din

  • Rav Moshe Taragin

In all civil cases, only after Beit Din issues a verdict is the case concluded and only at this stage must the parties adhere to the court's decision.  This assumes a typical scenario: each party lodges and defends its claims, seeking a verdict which will exonerate or reward them while obligating their counterpart to some form of shevu'a (oath) or monetary payment.  What happens, however, when one party unilaterally offers to make payment or take an oath?  To be sure, if one persists in this "volunteerism" until the court establishes his offer as its verdict, he may not withdraw it, as it is now legally binding.  But suppose, now, that prior to the official issuance of a verdict, he chooses to retract his offer, refusing to pay or take the oath which he had previously volunteered.  Can Beit Din enforce his original proposal and if so under what authority?

 

            The third perek of Bava Metzia describes the payment tables of a shomer chinam, someone who guards another's property without receiving any payment.  Given the absence of wages, he is very rarely held accountable for any ensuing damages.  Essentially, he only pays if the deposited item was damaged due to his gross negligence (peshi'a).  Accordingly, if the item is stolen, he is exempt from payment.  The gemara (34a) describes, however, a situation in which he voluntarily agrees to pay for a stolen animal.  In exchange for his good will, the original owner offers to award him all moneys and fines recovered if the thief is actually caught (which could potentially exceed the worth of the original stolen animal).  Tosafot (34b) examine the case of a 'good Samaritan' shomer chinam who volunteers payment for a stolen item but subsequently retracts his offer.  Tosafot initially quote Rabbeinu Tam, who rules that the shomer may retreat from his offer and avoid payment.  This position is adopted by the Ri Migash in Bava Batra (128), who also rules that until Beit Din issues an official pesak, any voluntarily accepted obligation may be withdrawn.  By contrast, the Ramban in Bava Metzia (34b) disputes this position and rules that the shomer may not withdraw his offer.  Tosafot writes that ultimately Rabbeinu Tam changed his opinion and rules with the Ramban that the offer "sticks".

 

            Indeed, upon first glance the position of Rabbeinu Tam seems most logical.  As long as Beit Din has not issued an official verdict, what factor obligates him to implement his original offer?  What might be the justification for Ramban's position ?

 

            One approach in explaining the Ramban would be to locate some extrajudiciary reason for compelling the fulfillment of his pledge.  True, as far as Beit Din is concerned no verdict has been reached and nothing will obligate him.  However, on a personal level he obligated HIMSELF to make payment.  Throughout halakha we recognize the ability of an individual to self-impose a chov, a debt, even if no reason for one previously existed.  By unilaterally creating a debt, one can obligate himself to pay any sum of money; this concept is known as 'hitchaivut' (see for example Rambam Hilkhot Mekhira 11:15).  In fact, many suggest that the entire system of shomrim is based upon this principle.  Whenever a shomer receives an item, he accepts upon himself an obligation to pay in case of damage, based on the corresponding tables of payment.  Similarly, a guarantor to a loan (arev), though he hasn't received any money, unilaterally obligates himself to compensate the lender if the original borrower is indigent.  Halakha allows an individual to originate such debts.  Our case might reflect such an instance.  In terms of a formal verdict, nothing has been set down.  However, by offering compensation the shomer has initiated a debt and he must pay up!!!

 

            Though, in theory, this explanation is valid, the literal reading of the Ramban's statement yields a different understanding.  He  writes that the shomer may not withdraw his offer because "this [offer] is HIS GEMAR DIN [verdict]".  Evidently, according to the Ramban, what obligates the shomer is not an extrajudiciary factor, but rather some verdict that has been reached.  This intriguing statement of the Ramban compels us to rethink our definition of gemar din and judicial verdicts.  What form of gemar din may exist without an official verdict being handed down by the Beit Din?

 

            Traditionally, we view the notion of gemar din as associated with an official announcement of the part of Beit Din.  "Gemar din" means the DECISION.  This Ramban, however, suggests otherwise.  Once the claims have been sorted out, when no more debate is necessary and the ultimate determination is clear, a gemar din has been reached.  'Gemar' in this instance would refer to the CONCLUSION of the debate rather than the DECISION of Beit Din.  This very question might underlie an important machloket about the moment in which a standard gemar din is realized.  The gemara in Sanhedrin (6a) asserts that gemar din is reached after Beit Din announces "Reuven is obligated to pay Shimon".  By contrast, the gemara in Bava Kama (68b)  maintains that gemar din occurs only after Beit Din actually ORDERS Reuven to pay Shimon.  Possibly, these positions reflect whether gemar din is an official verdict or merely the final stage of deliberations.  As a formal verdict, we might expect an actual sentence (as indicated by the gemara in Bava Kama) translating the decision into reality.  If it is merely the clarification of the case, Beit Din simply announcing their response to the claims would suffice, as the gemara in Sanhedrin rules.

 

            In fact, an interesting statement of Tosafot brings this issue into sharper focus.  The gemara in Sanhedrin (6b) rules that after gemar din Beit Din is no longer allowed to encourage or suggest a compromise.  Rashi offers a standard definition of gemar din, i.e., Beit Din announcing Reuven's chiyuv (obligation).  Tosafot however believe that the 'point of no return' after which Beit Din may no longer consider compromise occurs after the court has already carefully scrutinized the claims EVEN BEFORE THEY ACTUALLY ANNOUNCE THEIR VERDICT.  Evidently, Tosafot viewed gemar din (at least with regards to this issue - abandoning compromise) as the end of the process of clarification.

 

 

SUMMARY:

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            The Rishonim argue the right of one who accepts voluntary payment or shevu'a upon himself to withdraw his offer.  One would expect this ability to stretch at least until Beit Din actually issues a verdict.  The Ramban, however, claims that the making of this voluntary offer is no weaker than a standard gemar din and hence is irreversible.  Possibly, the Ramban views gemar din not as an official verdict, but merely as the complete clarification of the respective claims.

 

            There is, however, one gemara which actually appears to contradict the Ramban.  The gemara Sanhedrin (24) addresses the right of the parties to decide together on their choice of judges or viable witnesses.  If they agree, they may even designate judges or witnesses who are normally invalid, such as relatives.  The gemara concludes that until the actual gemar din, either party may rescind their decision and demand standard witnesses.  Does this not indicate that any extra-legal statement carries no immediate validity and only becomes unalterable after an official gemar din is reached?

 

            One might resolve this apparent setira (contradiction) in one of two ways.  True, many Rishonim, such as the Yad Rama in Sanhedrin, take the need for gemar din in this case literally (meaning an official ruling issued by Beit Din).  However, the Maharam Mi-Rotenberg (responsum 708) rules that immediately after these witnesses offer their testimony, the parties may not withdraw their mutual authorization.  Once their extralegal offer was acted upon, they cannot retreat even before an official gemar din is reached.  In this case, as well, no official gemar din is necessary.

 

            The Ramban himself, however, distinguishes in another manner.  Specifically in the case of Sanhedrin (24a) - the case of extralegal validation of witnesses and judges - gemar din must be achieved in order to make their mutual agreement binding.  Beit Din must consider the testimony of these "witnesses" and then issue an official ruling.  However, in the case of one who offers to take a voluntary shevu'a (oath) or proffer voluntary payment, there can be no subsequent gemar din.  The decision has already been unilaterally made.  In a sense, Beit Din need not even bother to declare a verdict, for it would be completely redundant - merely a restatement of the offer.  Once the offer is made (and accepted by his counterpart), the volunteer may not rescind.  Though, in theory, official gemar din is necessary to enforce extra-legal agreements, when an extra-legal offer of payment or shevu'a is tendered, no subsequent gemar din is feasible, since a final decision has already been reached.

 

METHODOLOGICAL POINTS:

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1.  Any apparent deviation from the standard protocol can be explained in one of two manners: as deviant or standard.  If it is part of the "standard process," then this process itself must be reexamined.  If the voluntary offer is not extrajudicial, but rather a "gemar din," then the very concept of gemar din must be inspected.

 

 

AFTERWORD:

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1)  See Rashi in Shavu'ot (39a) who rules that the offer may be rescinded until he exits from Beit Din.  How does Rashi view gemar din?

 

2)  See Rambam Sanhedrin (7:2) who asserts that validated witnesses may be voided until the money has actually been paid.  How might this position be justified?