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to practice medicine even though there is a greater physician than he hopes of doubling it for the benefit of himself and the rabbi. He gam-
in the city. bled with this money and lost it all. The rabbi consulted an attorney
who told him he could prove to the court that the messenger gambled
We can question the above, however, based on the words of the
4 away money that was not his, and it is nearly certain that the rabbi
Shulchan Aruch (Choshen Mishpat #10:2): A dayan who compares a would get his money back, but the messenger would be fined by the
case bought before him to another case that he has ruled on - and court and sent to jail.
there is a wiser judge in the city whose advice he does not seek - is Can he sue for his money or not?
#
counted among the evil people who render halachic rulings and deci-
sions presumptuously.
1 AnsweR
The Shulchan Aruch seems to imply that even if the dayan has all
the qualities necessary - both in Torah knowledge and in other per- I asked my father-in-law, Rav Yosef Shalom Elyashiv, zt”l, if it is per-
sonal traits cited by the Shulchan Aruch (Choshen Mishpat #7-8) - he missible to go to secular courts if the messenger refuses to appear
is still obligated to defer to someone who is greater than he in Torah before a beis din. My father-in-law prohibited it, because the foolish
knowledge, in contrast to what the Rama seems to be saying. messenger does not halachically deserve to be put in jail.
Perhaps the Shulchan Aruch refers to a case where the judge wants The sender could claim: Why should I lose my money and why is
to implement a new halachah and compares it to a ruling that he heard it my problem if the secular courts punish him? I am allowed to claim
from his teacher, even though it is not really the same. In such a case, what is mine (see above).
the judge is obligated to defer to the judge that is greater than he in But one can differentiate, for in this case, the rabbi can only get
the city. If he does not do so, he is evil and presumptuous in rendering back his money if the court indicts the messenger and jails him; the
two must go hand in hand. This is not so in the case of the plastic
halachic decisions. If the halachah is not new, and the judge is abso- surgeon, where the patient wishes to get the money that is due him
lutely certain of his view, he is allowed to rely on himself. This is what irrespective of the doctor’s ruined reputation.
Rashi seems to say (in maseches Yevamos, 109b, s.v. ugemar halachah), At the end of the book Shem Olam, the Chafetz Chaim relates that
which is the source of the law in Choshen Mishpat. The Sema (Ibid., the Gaon of Vilna sought to go into voluntary exile and rented a wag-
5) also says that only in a case where there is no real comparison to on from a Jewish coachman. In the middle of the road, the horse sud-
the case at hand is it prohibited for the judge to issue a ruling unless denly veered to the side and crushed the vegetable garden of a gentile,
he consults with a judge greater than he. which was on the side of the road. The gentile saw all this from afar
We learn from here that if the methods of treatment are not new and ran to the wagon to beat the Vilna Gaon, who was sitting inside.
and the situation is clear to the physician, he is allowed to rely on his The Gaon had in mind to answer him: I am not a sinner here; it is the
judgment alone. On the other hand, in a case where the physician coachman who is responsible for not watching his animal properly.
wants to introduce his own novel idea for treatment which may pose But he controlled himself and did not say a word.
certain dangers, he is obligated to consult with greater physicians Afterwards, the Gaon of Vilna said that had he answered the
than he who live in that city. gentile in this way he would be considered an informer and a mos-
er (because, in truth, the coachman is also exempt in halachah, as is
 known. Even if he were guilty, he would be obligated to pay money for

122 1 Medical-HalacHic Responsa of Rav ZilbeRstein Removed the Wrong Kidney 2 91

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