I’ve been talking about courts for damages in battery, and courts for holding mortgage documents, and courts that oversee creating bills of indebtedness and courts that bond convicted thieves who can’t pay their restitution in one go and courts that condemn some criminals to death. Are they all the same courts?
No. The Jewish legal system, just like the American legal system, has dual parallel legal systems, one criminal and one civil. In American law criminal cases can send somebody to jail as a punishment; this includes thieves. Civil cases can only require payment of damages, not send people to jail. They have different standards of guilt, and civil cases are not covered by the 5th amendment right not to incriminate yourself. And so on.
In Jewish law all capital cases require the minimum of 23 judges and I tend to call those criminal cases. All cases that cannot lead to capital punishment I call civil cases, and they require payment of damages. In Jewish law, theft falls into my classification as a civil case.
In a civil case, Jewish law only requires three judges. The two parties each choose one person to hear the case, and then either the two parties have to agree on the third judge, or the two judges already chosen choose the third. Either way, achieving a partial agreement on judges makes it easier to get total agreement.
The two great divisions of civil law, as I learned getting my legal studies degree, are contracts and torts.
With contracts, the witnesses had to have been there when the contract was made and they have to identify the parties, the subject, and their own signatures and seals on the contract document. With the development of the Hebrew writing system between 1100 and 800 BCE, Jewish law could begin to develop a new rule expressed in Mishnah. Contracts had to be written, had to be signed by the parties in the presence of witnesses, had to have a date on them, and the signatures or seals (preferably both) of the witnesses. Without such a writing as evidence, the creditor could not collect on the contract. This is something I mentioned last week.
On the flip side, if somebody found a contract lying around, they had to dispose of it. They could not give it back to the parties; they could not give it back to the court. That might result in the creditor trying to enforce it, and that might mean the debtor would have to pay a debt that had already been paid.
And now that I have reached the subject of lost objects, let me turn to the subject of transfers of custody of property which is related, and which will later lead to another important principle in Jewish law. For next time, read Exodus 22:6-11, 13-14.
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