Rabbi Meir Orlean
Mr. Baum and Mr. Deutsch had a monetary dispute. They approached a Rabbi in their shul, Rabbi Cohen, to judge their din Torah.
“Why don’t you turn to an organized beis din?” Rabbi Cohen suggested.
“We personally recognize your greatness in Torah and your honesty,” they replied. “We feel more comfortable adjudicating before you.”
“I don’t usually do this,” said Rabbi Cohen, “but if you insist, I agree.”
They arranged a date for the din Torah, but Mr. Baum was sick and had to cancel. They had trouble arranging an alternate date that was convenient for all, so the issue sat.
A few weeks later, Mr. Baum called Rabbi Cohen.
“I will be flying overseas tomorrow, and will be away for a few months,” he asked. “Is there any way we can meet tonight?”
“I have a relative’s wedding,” replied Rabbi Cohen.
“Can we possibly have the din Torah before the wedding?” asked Mr. Baum. “We very much want to settle the issue before I leave.”
“If it’s really important,” replied Rabbi Cohen, “I can leave work an hour or two early.”
“If that’s possible,” replied Mr. Baum, “we would appreciate it.”
Rabbi Cohen adjudicated. After the din Torah, he said: “I lost two hours of work, worth $300. Please compensate me for that.”
“You didn’t mention that you charged a fee,” said Mr. Deutsch.
“I didn’t expect to miss work,” replied Rabbi Cohen.
“But you didn’t say anything before we began,” objected Mr. Deutsch.
“I believe that my request is fair, but am willing to discuss the issue with Rabbi Dayan,” replied Rabbi Cohen. “I have a half-hour before I leave for the wedding.”
The three came to Rabbi Dayan. “I left work early to adjudicate between Mr. Baum and Mr. Deutsch,” said Rabbi Cohen. “Although I didn’t mention a fee, they should compensate me for my lost wages.”
“The Mishnah (Bechoros 29a) teaches that, in principle, a Dayan should not charge for rendering a verdict,” replied Rabbi Dayan. “Nonetheless, he should be compensated partially for his loss of work (k’poel batel).”
“A similar halachah applies to one who retrieves a lost item,” added Rabbi Dayan. “He may not charge for the effort itself, since this is the mitzvah of hashavas aveidah, but may charge partial compensation for any lost work. However, he can stipulate beforehand that he will retrieve the lost item only if he receives full compensation for his lost wages. Shulchan Aruch applies this to a Dayan, as well” (C.M. 265:1; 9:5).
“What if the Dayan didn’t state anything beforehand?” asked Mr. Deutsch.
“Sma writes that even if the Dayan did not stipulate anything, he is entitled to partial compensation, like hashavas aveidah,” answered Rabbi Dayan. “However, Taz rules that the Dayan is not entitled to any compensation if he did not stipulate beforehand.”
“Why?” asked Mr. Deutsch. “How is it different from hashavas aveidah?”
“Taz (9:5) writes that the litigants can claim that they would have gone to a Dayan who was not working and would not have charged them,” replied Rabbi Dayan. “Hashavas aveidah is different, since if the finder did not retrieve the item now, it would be lost forever, and is a case of clear loss (bari hezeikah).
“Taz (335:1) brings further proof from one who learns with another’s son without stipulating payment with the father,” added Rabbi Dayan. “Many exempt the father, since the person was doing a mitzvah and did not intend to be paid.”
“Whom do we follow?” asked Mr. Baum.
“Nesivos (9:4) and Aruch Hashulchan (9:7) follow the Taz, since another Dayan might not have charged,” replied Rabbi Dayan. “However, Shevus Yaakov (1:142) rules like the Sma, in accordance with the simple reading of the Gemara in Bechoros, since the litigants knowingly came before this Dayan, especially since nowadays it is known that Dayanim take a fee, so it is as though he stipulated” (Pischei Teshuvah 9:11).