The Voice Of Gladness

For L.O., on becoming S.B.

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3 Comments

  1. Mazal Tov to L.O. and family. May you soon learn back all of your Torah, and teach some to the rest of us!

  2. So why couldn’t someone say “Kim Li” like the Ketzos and never pay property damage?

    1. A good question, one that I’ve grappled with myself in this and other contexts. I think the answer, or at least one way of looking at the answer, may be as follows:

      Just as the meta-rules of איסור והיתר such as ספק דאורייתא לחומרא וספק דרבנן לקולא as applied to disputes between earlier decisors are only applicable insofar as we cannot decide the matter on our own, but a later פוסק remains entitled to rule in accordance with the view that he feels to be correct, so, too, is it commonly accepted (see, e.g., קונטרס הספיקות כלל ו’ אות ו’ ד”ה ודע שהרב אורים ותומים) that קים לי is only applicable where the דיין himself has no opinion on the matter, but insofar as he believes one position to be correct, a litigant cannot force him to set aside his view by pleading קים לי.

      We can then perhaps take this one step further and argue that even where a particular דיין has no firm opinion of his own, insofar as the subsequent halachic tradition has clearly sided with one view in an earlier dispute, קים לי is no longer an option for the contemporary litigant.

      I concede, though, that this idea needs further elucidation and a more solid grounding in the literature.

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