Q&A: A Torah scholar who reversed his ruling in a monetary matter
A Torah scholar who reversed his ruling in a monetary matter
Question
A Torah scholar who reversed his ruling in a monetary matter. I’m asking according to your approach, that the principle of autonomy is an important principle in Jewish law. If the Torah scholar reversed himself, then from that point on do we retroactively judge it as though the Jewish law had always been like the revised ruling, or is each ruling determined according to what he thought at that time?
[I'm not sure this is necessary, but I assume that if the Sanhedrin ruled that a certain act incurs lashes, and their ruling became public, and then some person came and did it in the presence of witnesses after prior warning, and before he was flogged the entire Sanhedrin reversed itself and held that he is exempt, then he would not be flogged]
A. Damage. Reuven, a great Torah scholar, studied and concluded that one who causes damage indirectly in a certain way is exempt. It happened that he caused damage to Shimon in that way and did not pay him. For the sake of simplicity, let’s assume the two of them are alone in the world and there are no judges or law of the kingdom and the like. Years later, Reuven reversed himself and now holds that he is liable (by Torah law). Is he obligated to pay, or since at the time of the damage he was not liable according to his own view, is he exempt?
B. Theft or deriving benefit. Reuven, a great Torah scholar, studied and concluded that it is permitted to violate copyright in a certain way, and therefore he used pirated software for a long period. Years later (and he has already completely stopped using the software), Reuven reversed himself and now holds that it is forbidden to violate copyright in any way and that it is actual theft. Must he compensate the owner of the software (the full price, or the value of the benefit he derived)?
C. Money that depends on a prohibition (?). Reuven, a great Torah scholar, studied and concluded that it is permitted to lend with "interest" in a certain way. He lent to Shimon and received "interest" from him. Years later, Reuven reversed himself and now maintains that this was Torah-level interest. Is he obligated to return it to Shimon?
D. All of the above, in a case where Shimon (the one harmed, the one stolen from, the one paying the interest) is also a great Torah scholar, and at the time of the act he held that the other party was exempt and therefore demanded no payment. Years later he reversed himself and now holds that there had been an obligation toward him. Is there here something like waiver (and this is not a mistaken waiver, because at that time that really was the "autonomous" law as far as Shimon was concerned), or can he go back and sue Reuven?
Answer
I didn’t understand the first question. Clearly a religious court would not flog him if they reversed themselves.
A. It seems to me that he is obligated to pay. Why should his opinion at the time of the damage matter? If a religious court sat and exempted him, then he is apparently exempt. But if he himself disagrees with the religious court and thinks he is liable, then I assume he should pay even then (although they would not compel him to do so).
B. If we ignore the law of the kingdom, I’m not sure there is a payment obligation here. There is a prohibition of deception (according to my view in Techumin). However, payment for the benefit derived does seem likely to apply here.
C. Definitely. Why not?
D. This is a mistaken waiver. But if he now thinks the other party is liable, then let him sue. If the offender pays, good. And if not, the religious court will decide according to the judges’ opinion.
Discussion on Answer
Precisely with regard to interest this is most correct, because the return of fixed interest is not a monetary debt but a prohibition-based obligation. So there is no claim here that the money was acquired by him at the time when he thought it was permitted, and therefore now there is no possibility of suing. The money was his and remained his, but there is a law requiring the return of fixed interest.
In my opinion, however, this is also true in an ordinary monetary context and not only with interest, because the money was acquired by him in error.
And by the way, regarding lashes when the religious court reversed itself, it’s probably true that he would not be flogged, but conceptually it’s very hard to understand. The implication is that the lashes are not only for an act of rebellion against a command, but also for damaging something metaphysical. And that means the punishment also atones and cleans up something in heaven besides issues of deterrence and the like. But the idea that suffering cleans off stains seems to me completely unintelligible (by the same token, anything could clean them off, even if they made the defendant drink orange juice. I’ve already said this once). To say that there was no rebellion against a command here because there really is no command sounds very strange to me. Especially according to your view, that moral judgment is relative to one’s own position. And the fact that in today’s law there is a lighter punishment if the result did not occur itself requires a major explanation.
C. Because if he did not violate the prohibition of interest, then the money is rightfully his. And at the relevant time he violated no prohibition at all and did exactly what the Holy One, blessed be He, commanded him to do. So why is he really paying?