Friday, April 27, 2007
R' Dovid'l From Tolna & Judicial Economy
Yitz at Heichal Hanegina has a great post here regarding R' Dovid'l from Tolna, son of the Meor Einayim, R' Nachum Chernobyler. You should read the post at that link before you read what I write, as I'm commenting on his post.
This piece has a lot of great stuff, both about the ideal Beis Din, and about the comparisons with the secular legal system. As a law student in the evenings after work, I'm interested in both. So I wanted to add a couple of things, in no particular order.
The dispute in the Tolner Rebbe's story between the Lion and the Wolf is exactly parallel to the first case every law student studies in his 1st year Property course, Pierson v. Post, from 1805 in New York. That was a case of a fox hunter (Post) who was in hot pursuit of a fox and, using his hounds (here, the fox didn't get to be the judge!) almost had it when and a Johnny-come-lately interloper, (Pierson), swoops in and kills the fox before Post can finish it off. Based on this case, the common law became that one acquires the animal when one captures or mortally wounds it, not merely chases it for a long time, so the Lion should have gotten the whole sheep, and shouldn't have had to split it, as the fox ruled. That case predated the Tolna rebbe's story by almost 40 years, but apparently the fox didn't follow the British/American Common law precedent!
Also, regarding the dispute between the Chassid and the Poritz, relating to the enforcement of a verbal contract for the sale of land; The Statute of Frauds was passed in 1677 and says that certain types of contracts have to be in writing to be enforceable in a court of law. One type of contract that must be in writing to be enforceable is that of an interest in land. Here, the Chassid is buying a section of forest for the purpose of lumbering, so it is an interest in land. Therefore, it would be within the Statute of Frauds, and would have to be in writing to be enforcable according to British/American common law. Here, the civil courts in Tolna must have had a similar law because the story said that the Poritz knew he wouldn't be able to enforce the contract in civil court.
With regard to the Rebbe's mashal, which teaches us how the Beis Din is far superior to secular courts partially because the cost of litigation is so much less, and the awards aren't eaten away by those pesky lawyers; There was an interesting article from 2 days ago at Law.com about a little employment law case that got so bitter and drawn out, that at the end one side sued the other for $150,000 in attorney's fees for a simple overtime dispute!
Thank you Yitz for a great post at Heichal Hanegina!