Between civil and criminal law: a 'big' or 'difficult' lawsuit?

""A penny is like a hundred, and it turns out that it is. The crux of the dispute: 100 NIS, a fine for parking without paying a parking fee; an act that was forbidden, and later was allowed" (Honorable Justice Solberg).

introduction

These words of the Honorable Justice Solberg were written at the opening of a long and comprehensive ruling recently issued (25.12.14) by the Supreme Court.[1] The ruling describes a case that was heard in three different courts, beginning with a fine of 100 NIS issued for parking without payment about two and a half years earlier.

This comprehensive ruling includes, among other things, discussions of complex issues of legislative interpretation and considerations of appropriate judicial policy. And all – ostensibly – because of a small fine.

The small amounts and""The Little Opposites"" They challenge the legal system. In many ways, they call it law. In our article, we will try to examine the tension between law and the economic costs of its implementation, as this tension is reflected in the sources of Jewish halakhic traditions and in Israeli law.

We will attempt to open our discussion with a sermon-based study of a small issue from the story of Yitro, which describes the arrival of Yitro, Moses' father-in-law, to the camp of the Israelites after the exodus from Egypt.

Thus, the day after Jethro's arrival at the camp of the Israelites, he observes Moses our Lord judging the people alone. After a conversation between them, Jethro gives Moses some advice for organizational and systemic changes in the organization of judgment and the transmission of the word of God to the Israelites.

Moses, as a rule, accepts Jethro's advice but implements it with minor changes. In this article, we will examine one change that Moses made.

Jethro says in his advice: ""The whole thing Enlarge They will bring it to you, and all that. The little one They will judge.".[2]

While when Moses applies the advice, it is said: ""the thing tapping They will bring it to Moses and all the matter. The little one They will judge.".[3]

If we follow the path of the author of "Torah Tamimah," Rabbi Baruch Epstein and others,[4] It seems that the distinction Big-small And hard-small, may mark a kind of watershed between the 'laws of Israel' and the law of nations. And in the words of Rabbi Epstein there:

""And in the simplest way, one should interpret what the Torah changed from the language that Yitro said, "the great matter," and wrote, "the difficult matter." Because it was according to the custom in the courts of nations, which only look after the amount of the judgment, each of the courts - each according to its greatness - has the authority to judge only up to a known amount and a fixed amount, and they do not scruple whether the judgment of a small amount is very difficult to ascertain or whether the judgment of a large amount is easy and convenient to ascertain. But in the laws of Israel, they do not look after the value of the amount of the judgment, because the judgment of a penny is the same as the judgment of a hundred mena, and there is a judgment that is small in quantity and difficult in quality. Therefore, Yitro said, according to the custom in the courts, "the great matter," in quantity, and the Torah said, "the difficult matter," in quality.""

A humane and civilized legal system that allocates its judicial resources sparingly and rates the quality of case hearings according to economic considerations of the size of the claims filed (''The Big Thing''- in quantity).

Divine justice, on the other hand, extends to completely different scopes and depths. The test, ostensibly, is not between a financial claim "greatness" and"Small", but between "A difficult thing" - A law that is difficult in its quality, harbors judicial complexity and challenges the judge in operating and applying different legal systems - and something "small" And easy in nature, in which the application of the law is simple and immediate, regardless of the amount of the claim filed. According to divine law, a claim that is complex and difficult in nature will receive the most judicial attention. ""A difficult thing"" Such a thing could supposedly even reach the table of Moses, regardless of the size of the sums that would be required in its framework.

The Cost of Law - Two Ways of Examining

As written at the beginning of the article, ""The little opposites""And the tiny amounts challenge the legal system. We will try to define the tension between law and money, between "tapping" and"The big one", by distinguishing between two different issues.

The first issue relates to the matter The very necessity of a lawsuit - What is the minimum threshold, without which the claim will not be heard in court at all?

The second issue, regarding How to handle the claim - After the lawsuit has been granted entry into the courtroom, how can we distinguish it from the rest of the lawsuits? Which case will receive priority? How will it be handled? And according to what tests?

A halachic echo of the principled distinction described above appears in the Rambam's book "Mishnah Torah," Laws of the Sanhedrin, Chapter 20, Laws 10-11. Let us try to examine these laws:

""[1] Do not say that all these things, in a case where a large sum of money is taken from one and given to another - there will always be a judgment of a thousand mina and a judgment of one penny, which in your eyes is equal to everything. 

[11] And the judges do not sit down, for a judgment less than the equivalent of a penny. And if they were compelled to pay a penny, they would judge him, even for less than the equivalent of a penny.""

In Halacha 11, Maimonides addresses the first issue. That is, the very fact of addressing the claim is a continuation of the Babylonian issue in Tractate Baba Metzia (55a - 55b), from which it emerges that, as a rule, a court will not begin to hear a case worth less than a penny (one-eighth of an isr - the small coin of value in trade relations).[5]

The requirement to equal a penny is made in continuation of what is stated in the Mishnah on page 55a and in the Baraita on page 55b in Tractate Bava Metzia, from which it can be understood that the requirement to equal a penny is found in the infrastructure of the basic actions between people within the framework of society (for example, the Shabbat of a lost life, the consecration of a woman, etc.). This requirement is explained elsewhere, for the reason that it is the way of people to forgive such a small amount.[6]

In Halacha 10, Maimonides addresses the second issue regarding the manner of handling the claim. He does so in continuation of Reish Lakish's sermon in the Babylonian Talmud (Sanhedrin 8) to rule: "As small as great, you will hear.",[7] According to which ""The law of a penny will be dearer to you than the law of a hundred mena.".

The Gemara there clarifies Reish Lakish's sermon and asks: "May the Lord be with you?", that is, what is the meaning of this law? "Ilima for the study of the law and the judiciary", that is, if Reish Lakish means to say that the judge must examine the law of a penny before making his decision, just as he investigates in depth the law of a hundred mena. "Pishita", then this is obvious, and there is no need to say it.

Therefore, the Gemara concludes that Rish Lakish did not intend To the substantive law, A penny is worth a hundred mina, But to the question of precedence in law ("For academics"") And as Rashi explained there,[8] "If a judgment of a penny comes before you, and then another judgment of a portion comes, the one before you is the first to cut.".[9]

In other words, a case should not be preferred to be heard based on its value, but rather cases should be heard in the order in which they were presented to the judge. If a claim for a small amount was first filed, and then another claim for a larger amount was filed, the claims should be heard in the order in which they were presented to the judges, not according to their value. This explanation was ruled upon in the Torah and later in the Shulchan Aruch.[10]

It should be noted that this sermon of Reish Lakish was implemented by the rabbinical courts, within the framework of Regulation 31 of the Regulations for Hearings in the Rabbinical Courts of Israel, 5753:

""In setting dates for trials other than a claim for maintenance, the secretary shall act according to the rule of first-come, first-served, and in accordance with the law, unless otherwise instructed in writing by the court or by a judge.""

In Israeli law, however, the reality is more complex. We will elaborate on this in the next section.

To conclude this section, we have briefly reviewed two possible ways of examining the question of the tension between law and money. This tension can be reflected in various sermons written regarding the establishment of the legal system by Moses following the advice of Yitro. In the next section of the article, we will examine how these ways of examining and the directions for solutions proposed within them were expressed in the framework of Israeli law.

more Yeshurun ​​Ram-Cohen, from the office Wolfson Weinstein & Co.' Specializes inLitigation, Labor Law and insolvency.

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