A Third Dayan Who Was a Relative

(based on Shut Noda B’Yehuda, Choshen Mishpat)


Case: Reuven and Shimon had a dispute, and they decided to adjudicate by each picking a judge (Levi and Yehuda), with the stipulation that they could rule based on din (strict law) or peshara(compromise). They agreed (in writing, with a kinyan for finalization) that if the two could not agree on a ruling/settlement, they could pick a third of their choice ("whoever it might be") to enable a decision. Levi and Yehuda indeed did not agree. They chose Dan according to the above instructions. After a ruling was rendered, Reuven objected, with the claim that he found out that Dan is Shimon’s relative, to which he would not have agreed. Shimon claims that since Dan was accepted and since the instructions were that it could be anyone, this includes even relatives.

Ruling: The most likely reading of the instructions is that the extra language of "whoever it might be," in regard to choosing the third dayan,includes even relatives. However, it has become accepted that we make inferences from extra language only for language that is discussed in the Talmud (see Beit Yosef, CM 61), which is not true in our case. (There are some opinions that we can make our own inferences based on vague language in certain cases.)

P'ninat Mishpat (704)

Various Rabbis

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371 - Introduction and Biography of the Noda B’Yehuda

372 - A Third Dayan Who Was a Relative

373 - Offsetting Obligations of a Deceased

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There should be a distinction based on whether Levi and Yehuda agreed with Dan’s settlement. This is because all that is needed to make the ruling permanent is Levi and Yehuda’s agreement, even if they were prompted to agree by the opinion of a third person (see Beit Yosef, end of CM 14). If the ruling, though, was based on majority (i.e., Dan agreed with either Levi or Yehuda), then we have to consider Dan’s ability to serve as an arbitrator.
It would seem that if Reuven and Shimon presented their claims before Dan and did not object at the time, then it shows that they intended to accept anyone chosen by Levi and Yehuda, including relatives (as the arbitration agreement’s language implies). Furthermore, since Reuven did not object until after the ruling was given, it is too late.
If the litigants did not stand before Dan and make their claims but Levi and Yehuda relayed them, then anyway the ruling would be inappropriate (see Shulchan Aruch, CM 13:6). However, further investigation of the arbitration agreement shows that Reuven and Shimon authorized not presenting the matter themselves before the third arbitrator. The question of whether Dan being a relative is a problem thus remains. It seems that if the ruling was to extricate money, the ability to do so is not sufficiently clear, but it is strong enough to uphold a ruling to exempt the defendant.
Careful reading of the question shows that Levi and Yehuda did not themselves realize at the time that they chose Dan that he was a relative. Therefore his appointment by those who were authorized to choose him was based on a mistake and was invalid, and therefore the ruling is invalid.