Shabbat Parashat Vayakhel Pekudei 5778

P'ninat Mishpat: Steps to Deal with Mutual Motzi Shem Ra

Case: [Due to the case’s sensitivity, we will omit a lot of the background.] The defendant (=def) insulted plaintiff (=pl) in a public interaction, saying that pl is “mitasek im ketinim” (approximately – fools around with minors). Def downplayed the statement’s severity, and did not disavow or prove the subject of the insinuation. Pl initiated litigation, and when def showed initial reluctance to cooperate, pl gave letters to members of the community accusing def of refusing to come to beit din. Actually, def had refused to go to a specific beit din but agreed to go to another.   

Ruling: According to standard halachic sources, one who embarrasses another by means of speech is not obligated to pay (Shulchan Aruch, Choshen Mishpat 420:38). Yet several Rishonim refer to a minhag to put the offender in cherem until he appeases the victim. The Shulchan Aruch (ibid.) recommends to do this according to the needs of the time, and the Rama applies this to motzi shem ra (publicizing false accusations).

The Rama cites a machloket whether there is an obligation to pay when a statement can be interpreted in different manners. We follow the Maharshal (Bava Kama 8:52) that it depends how the normal person takes it, and that it can apply to hints and not only to explicit statements. There is also a difference between making claims of concrete aspersions and between general insults (Chavot Yair 65). This is because the social urgency to stamp the practice out is more pressing regarding real aspersions. Just as one cannot allow verbal abuse to go unchecked, one can also not allow litigation on every insulting statement one says to another. The proper thing in such cases is apologies. 

 Pl’s statement, concentrating on the wording (“minors”) and the context (trying to “put def in his place”), imply claims of criminal wrongdoing. Def did not indicate that he knew the insinuations are true (in which case, we would urge him to go to the police), but it is still severe.

Pl also defamed def. Pl claims that it was because he was riled up after being insulted. We do find sources that when one is attacked physically or verbally and responds in kind, the one who reacts is exempt (see Rama, CM 421:13) because of self-defense and an uncontrollable anger. However, this cannot be applied here because pl’s action took place weeks after def embarrassed him.

While beit din does have the authority to levy financial payments on the side(s), we do not believe that this is the most appropriate step. Rather, public apologies are. No monetary damage was caused, and the process at beit din and the public apologies will be ample deterrents that this behavior will not repeat itself. While apologies are due on both sides, they are not equal. Pl was humiliated by def over a severe claim without cause. In contrast, pl made a claim against def incorrectly but within the seeking of justice. Therefore, the language of the signed letter of apology and clarification to be put up in the local shul by def will be stronger in language than pl’s apology (beit din provided both texts). Also, def’s letter must remain for two weeks, whereas pl’s letter will only need to appear during the course of one Shabbat.

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