Fire Power by Rabbi Meir Orlian Rabbi Dayan sat with his students around the bonfire on Lag Ba’omer. “I’ve got a challenge for you,” Rabbi Dayan said. “Can anyone think of something that ties together the time period of sefiras ha’omer, R’ Shimon bar Yochai (Rashbi), bonfires and Choshen Mishpat?” “We light fires on Lag Ba’omer to commemorate the passing of Rashbi,” Moshe said. “Bonfires relate to Choshen Mishpat; if people are not careful with fire and it damages, they are obligated to pay.” “Good,” said Rabbi Dayan. “But where does sefiras ha’omer tie in?” “Wasn’t Rashbi one of R’ Akiva’s students?” suggested Etan. “We limit joyful activities during the period of sefiras ha’omer because 12,000 pairs of R. Akiva’s students died during this time period.” “OK,” Rabbi Dayan responded. “But was R’ Shimon bar Yochai one of those students?” “No,” chimed in Uri. “The Gemara (Yevamos 62b) relates that after R’ Akiva’s students died, the world was desolate until R’ Akiva came to the Torah scholars in the south and taught them: R’ Meir, R’ Yehuda, R’ Yosi, R’ Shimon, and R’ Elazar; they reestablished Torah. That R’ Shimon is Rashbi.” “Excellent,” exclaimed Rabbi Dayan. “Does anyone know another context in which these same five Torah giants are mentioned?” “I remember something with R’ Yehuda ben Bava and semicha,” said Etan. “Correct,” replied Rabbi Dayan. “Do you know what exactly semicha is?” “That’s when they ordain someone as a Rabbi after he studies many years,” said Uri. “My father has semicha,” he added proudly. “That’s wonderful,” said Rabbi Dayan. “But our semicha nowadays is just permission to render halachic decisions, not the formal semicha mentioned in the Gemara.” “What was that semicha for?” asked Moshe. “In order to have full judicial authority, the Torah requires that the dayanim receive formal semicha,” explained Rabbi Dayan. “This is an unbroken chain of authority linking directly back to Moshe Rabbeinu. In the times of R’ Yehuda ben Bava, the Romans wanted to break this chain and issued decrees against granting semicha, under penalty of death. R’ Yehuda ben Bava gave up his life to grant semicha to these same five Torah scholars, including Rashbi. They continued the chain for another 250 years, until it was broken almost 1,600 years ago.” “Rabbi Dayan, how can you then adjudicate in beis din,” asked Uri, “since the chain of semicha was broken?” “Dayanim without formal semicha are able to judge as long reaching agents of the fully empowered dayanim of old,” replied Rabbi Dayan. “The Gemara (B.K. 84b) limits the authority of current dayanim to cases that are considered common and also entail financial loss. This includes most monetary cases: obligations, debts, kesubos (marriage obligations), inheritance, gifts, damage to property, certain aspects of personal injury, theft, and damage caused by animals through eating or trampling. It does not include cases that are uncommon, such as an animal that gored, or cases that do not entail financial loss, such as the double-payment penalty (kefel) of a thief (C.M. 1:1-3).” “This brings us back to bonfires,” continued Rabbi Dayan. “There is a dispute whether fire damage is considered common, in which case dayanim nowadays have authority to judge. Shach (1:2) cites the Maharshal that fire is not considered common. However, most other authorities consider fire as something common that dayanim nowadays have authority to judge (Pischei Teshuva 1:2; Aruch Hashulchan 1:3).” “Does this mean that in cases that are not considered common there is no legal recourse nowadays?” asked Etan. “Even in these cases, the accepted practice is that beis din can review the case and estimate the amount owed,” answered Rabbi Dayan. “Although they do not have legal authority to extract payment, they can apply sanctions until the guilty party appeases his litigant with an appropriate amount. Similarly, if the litigant is able to seize what is owed him, he can keep it (C.M. 1:5; Shach 1:17).” “On a pragmatic level,” concluded Rabbi Dayan, “I should note that beis din is not able to enforce its verdict in the secular legal system nowadays without a prior binding arbitration agreement. Therefore, the practice of almost all batei din is to require a binding arbitration agreement. By doing so, the litigants accept the authority of the dayanim to adjudicate the case. This acceptance also gives them halachic authority to adjudicate even cases that are considered uncommon (C.M. 22:1).” Source: business halacha institute to subscribe to our free weekly newsletter, click here