Our policy is based on the Rama. The Shulchan Aruch[1] presents the basic rule of jurisprudence that one may not listen to the claims of one litigant while the other side is not present. The Rama[2] posits that this refers to one who is or will be a dayan in the dispute. However, he adds that a talmid chacham should never express even a tentative opinion (“if indeed … then …”), even regarding a case over which he is not presiding, without hearing both sides.
The first reason the Rama gives for this ruling is that the talmid chacham’s response might teach the litigant which claims to make, including false ones. While the sources speak of falsehood, the concern is not limited to outright, premeditated lying, but includes describing the nuances of a gray situation in a slanted manner. Our contemporary experience demonstrates that even honest people are liable to do this under the pressure of litigation, when significant money and stature are on the line.
The Rama’s second stated reason is that due to claims that will surface in the trial, the eventual ruling might appear to contradict the talmid chacham’s previously stated opinion, which could discredit him. We note that such concern need not be limited to the non-dayan’s credibility. Our beit din’s administration has received post-ruling complaints along the following lines: “I asked my rabbi about the case, and he said the beit din’s decision was wrong, so the dayanim are either incompetent or biased.” Of course, two rabbis can have different views without either person being incompetent or biased, which is the reason three dayanim serve on a beis din and not just one. Furthermore, the dayanim generally have more experience in adjudication than rabbis who are not dayanim. They also have the advantage of having heard and interrogated both sides and often spending dozens of hours researching, analyzing, and debating each other. Nevertheless, a dissatisfied litigant may not care about this and might instead prefer an outside rabbi’s initial reaction to the litigant’s presentation of the matter, often presented in a setting that does not allow for careful consideration.[3] This negative phenomenon can occur as a result of even a provisional opinion made prior to adjudication. The dynamics of dispute are such that otherwise respectable and respectful people are liable to decide that they are right and that there is something wrong with anyone (litigant, dayan, or other) who disagrees with what they understood that a rabbi said in their favor.
Our experience makes us concerned about another issue that the Rama does not discuss. (It is likely that he was not addressing such a case.[4]) There are times that the sides prefer to avoid the trouble of litigation, which we applaud on fundamental and practical grounds. A well-intentioned party to a still non-litigated disagreement may ask us or another rav about the scenario, presenting it as he honestly but subjectively sees it, with the intention of getting an answer to share with the other side in lieu of litigation. He may be honest enough that he is willing to inform the other side if the rabbi said that he himself was wrong. However, if we answer, “Based on your description, you are right,” he is likely to say more resolutely than we did, “I asked a dayan, and he said I am right.” If this happens, then the other side will be at a disadvantage. Should he question the dayan, or should he call his neighbor, friend, or business partner a liar? Many people do not realize that they have a right to respond: “If the dayan/rabbi did not hear me describe the case in my own words, he should/could not have said, ‘You are right.’” In such cases, we will request from the one who asks us informally to have the other side present his case in a parallel manner, or at least have the other side inform us very clearly that he does not want to continue the argument and wants us to answer his counterpart based on the latter’s presentation of the facts.
We will now summarize the first part of our treatment of the subject from our specific perspective at Eretz Hemdah. We wear two relevant “hats” that impact on our answering monetary questions: 1) We have an “Ask the Rabbi” service, through which we try to be responsive to all. 2) We have a beit din, where we make very strong efforts to be ethical, impartial, and cautious regarding monetary matters.[5] The policy we believe as best to reconcile these competing responsibilities is to almost always refuse to answer questions of one side that have a hint of being related to an actual monetary dispute. We regret that some people are resentful of this policy; that is part of the price of being principled and cautious.
Now we will attempt to deal with complaints of inconsistency regarding answering practical monetary questions. The decision not to honor such requests is not due to a sweeping formal Torah prohibition, but rather is based on proper ethical norms. Rabbis throughout the centuries, including those who themselves have authored rulings against answering questions about conflicts without hearing both sides, have found themselves weighing conflicting considerations and struggling with apparent inconsistency; some of them discuss these struggles in their responsa.
We should point out that it is standard, recommended practice for dayanim who are unsure of the proper ruling to send the case’s details elsewhere so as to obtain a greater authority’s opinion.[6] The dayanim are responsible for presenting the claims of both sides accurately, and they are the ones who will end up making the formal decision. The authority to whom they turn is allowed to rely on the dayanim to faithfully and accurately present the situation to him and to implement his recommendations.
Regarding requests of guidance made by or on behalf of a party to a dispute, the Pitchei Teshuva[7] provides perhaps the most important compilation of distinctions to reconcile apparent contradictions. We will now present several distinctions and some opinions about them.
The Me’il Tzedaka[8] cites sources and a broad common practice that permit a talmid chacham to answer a question when he knows the querier and is confident that the querier wants to know the truth and will not formulate false claims. (The Me’il Tzedaka questions the validity of this leniency, except in cases in which the respondent believes that the case does not actually apply to the querier.)
Other sources for leniency refer to various cases with great need to get involved, such as: 1) The information is needed to save people from sin.[9] (There are many teshuvot about poskim who got involved when there were suspicions about a shochet.) 2) The complaint being addressed is of someone attacking the integrity of a talmid chacham.[10] 3) The opinion is needed for the mitzva of helping a widow.[11]
Another type of case in which some permit discussion with one side is when the talmid chacham focuses specifically on the general halachic questions that will determine the correct ruling, whereas the factual claims of the case are agreed on by all.[12] In a related justification, poskim will often also say that they are not suggesting a ruling for the case, but are simply explaining gemarot or general halachic issues to interested parties. The logic is that the talmid chacham is not responsible for the conclusions that those who now understand the halachic topic will draw regarding their case.
Another exception is when the question is about which beit din has jurisdiction.[13] The logic is that since the arguing sides cannot agree on the same beit din, the alternative of addressing the matter formally before beit din does not exist. There is therefore no practical choice but to accede to the request to provide a correct solution in order to get the sides past the deadlock.
While some of the cases in which we at Eretz Hemdah are lenient are based on one of the above distinctions, our most common justification to express tentative opinions is in cases in which there are no actual litigants. (Generally, the sources that discuss our issue refer to cases of talking with one side when there are already litigants, or at least those planning to be litigants.) We are often approached by a non-litigant who wants to know about his rights and obligations. For example, a person does not want to go to beit din, but he wants to do the right thing; he will willingly pay, without being sued, or not make a demand, even out of beit din, if we tell him that this is what is appropriate for him to do. We often respond: “We cannot tell you that you are right (because maybe if we heard the other side’s version of what happened, we would agree with him), but we can tell you if you are wrong even according to your version of the story.”[14] Even then, we try to ascertain to the extent possible that the person who has approached us is sincere on this point. This is easier when we know the person, although there could be other indications.[15] When it appears that someone wants to adjudicate, and we feel that he will create enemies and bring on head/heart aches with only a small chance of winning, we will often advise him, without going into too much detail, that he would be wise to drop the matter.
The above are some of our guidelines, and gray areas abound. We request of those who turn to us with these types of questions: Realize that our rule is not to answer. If you believe you belong to the exception rather than to the rule, but we are not convinced of that, please respect our right to be more careful on the matter than you were expecting, are used to, or agree with. Believe us that our practice is based on our understanding of what is proper, and not due to malice, apathy, or laziness, Heaven forbid. We think it is proper for an organization serving mainly anonymous people, about whose circumstances we know little, to be machmir on such matters, even when our answer might be important for the advice-seeker. This is especially so because we run a beit din that pursues ethical excellence, including not helping one side at the possible expense of another.