Getting Paid to Judge

Bechorot (4:6) | Yisrael Bankier | 11 years ago

The Mishnah (4:6) teaches that if a judge is paid then the judgement is void. Likewise, if witnesses are paid then their testimony is invalid. The Tifferet Yisrael explains that if only one of the litigants paid the judge then it would be defined as shochad(bribery), even if the party intended that the judge rules truthfully. The Mishnah is instead referring to a case where both parties contribute equally in funding the judge. Nevertheless the payment disqualifies the judge. 

The Mishnah does continue explaining how one can be compensated for costs incurred and lost time (albeit at a reduced rate). Nevertheless a salary appears to be expressly ruled out. The Bartenura explains that this is based on the pasuk (Devarim 4:4) “See I [Moshe] taught you the laws and statutes as Hashem commanded me.” The Gemara understands that this does not just referring to the content, but to the manner as well. Just as Hashem taught Moshe for free so too did Moshe; and those that follow must teach for free as well. 

The Bartenura continues citing the actions of a particular Rabbi that would take a fee for writing and overseeing the handing over of the get. Likewise the witnesses would also be paid. The Bartenura questioned his actions as unbecoming of a Rabbi and comparable to theft and extortion while unfairly taking advantage of his position as the only qualified authority. Similarly he questions the efficacy of the get based on our Mishnah.

The Tosfot Yom Tov cites the Rama who argues however that the Mishnah is not a proof to counter the Rabbi’s actions. Firstly, the writing of a get would not qualify as judgement – it closer to guidance and instruction. Similarly the witness are financial liable if they err and ruin the get which would justify their payment. Furthermore, the witnesses become forbidden from marrying the divorced lady as a result of choosing to become witnesses.¹ 

The Tosfot Yom Tov adds that really there is no difficulty with the witnesses being paid in the case of a get. The Beit Yosef(Ch.M. 28) cites the Rashba who explains that the issue with paying witnesses is only if they have already witnessed an event and are obligated to provide testimony, yet they are resisting unless they are paid. However, someone who is not obligate to testify can take payment to become a witness, like in the case of a get.        

The Tosfot Yom Tov extends this logic to a judge as well. The issue would only be if he were approached to pass a judgment. If however the community wished to elect this person as a full time judge that would be a different matter – there is not mitzvah to do so. Consequently he can stipulate a fee at the outset. 

The Tosfot Yom Tov continues that it has been a long established custom for the sages to receive a salary from the community. He suggests that it reached a point where it was necessary permit it (et la’asot le’Hashem) to ensure those that study and teach invest significant time and energy in doing so properly. The Tifferet Yisrael adds that it became necessary in order that those permanent positions, essential for the community, would be filled. Nevertheless, he adds that one should not necessarily overburden people too much “for all matters in the fulfilment of Torah and Mitzvah, which is the purpose of the entire creation.”

¹The Rashash argues that this answer is only enough to ensure that the get is not invalid. Nevertheless it still appears to violate the instruction that “just as I taught for free so too you shall teach for free.” He directs us to see the Shulchan Aruch (Y.D. 246:5) and Rama (246:21). See inside.

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