A collection of halachos regarding the Halachic principle of “Kim Li” — choosing to follow a dissenting Halachic opinion in certain cases, from AskTheRav.com & Halacha2Go.com.
By Horav Yosef Yeshaya Braun, Mara D’asra and member of the Crown Heights Beis Din
“I go by the other opinion” – When does kim li work?
Two claimants, Rabbi A and Mr. B, appear before the Beis Din, arguing over a sum of money. The Beis Din listens to both sides and states, “We will follow the majority of poskim on this issue. Rabbi A, despite the fact that the money was already transferred to your account, you must return it to Mr. B.”
“Wait” Rabbi A replies, “Commentaries on the Shulchan Aruch quote a minority opinion which would turn the case in my favor. Kim li (I am of this opinion)!”
Rabbi A went home with his assets intact.
In all money matters, the muchzak (the one with the money or property in their possession) is presumed to be the de facto owner. As the Mishnah states, “Hamotzi mechavero alav haraya” (the burden of proof is on the one who wants to take from another). When Beis Din evokes a halachic majority that points to the muchzak losing his claim, the muchzak may rely on a minority opinion to maintain ownership, with the words “Kim li!” The phrase kim li has been adapted as a general rule of the current owner’s advantage and may be used by the claimant even without comprehensive knowledge of the opinion he is presenting—and the erudite members of the Beis Din can even present it for him!
There are clear parameters of when kim li may be applied—it is not an exercise in discovering a most obscure argument in favor of the muchzak; it must reference a position in the Shulchan Aruch, Rema or Nosei Keilim (lit. arms bearers—the foremost commentaries printed on the pages of Shulchan Aruch).
In addition to precedent, one of the limitations of kim li is that it can only be utilized in the absence of a minhag (custom) to follow a particular posek. For example, among Sephardim, kim li cannot be engaged to support a view directly opposed to Rav Yosef Karo, the Mechaber (Compiler of the Shulchan Aruch), who is traditionally their primary halachic authority. If both the Mechaber and the Rema (the Ashkenazic counterpart of the Mechaber) are in clear agreement on a certain matter, kim li cannot be employed on that subject in any community.
[Following are some Halachic scenarios to which the principle of kim li may be applied:]
Can I disagree with the mara d’asra based on kim li?
One exception to this rule is if the current owner’s statement is countermanded by the mara d’asra (local rabbi). His psak overrides precedent; the strength of the mara d’asra is mid’oraysa, prevailing over all other halachic opinions.
Many of the rules that apply to arguing with a rebbe as outlined by poskim—those that are bound with kevod haTorah (the Torah’s honor) and kevod rabbo (respect due to a Rabbi)—are also said to apply to the mara d’asra. And more so: since the mara d’asra has been accepted by the majority of the community, his psak attains a status that even if most opinions disagree with a particular psak, it must be upheld.
(There are harsh words put forth by halachic authorities regarding someone who undermines the mara d’asra’s authority, as it can be viewed as arguing against the power of the Torah—and applies even in a situation where the rav who has proven himself to be a Torah scholar inadvertently errs.)
The binding nature of the mara d’asra’s psak applies in all Torah matters, even when its parameters veer towards worldly concerns or public policy, subjects outside the direct realm of halachah. (Halacha2go.com #636)
May I use my son’s gifts to pay for his Bar Mitzvah?
Guests at a Bar Mitzvah celebration often leave a present: a monetary gift of cash or check, a sefer or other gifts. Sometimes the gift is clearly demarcated; others, even unlabeled, have a de facto owner by the theory of umdena (logical assessment)—for example, a sefer would likely be intended for the Bar Mitzvah boy himself. But to whom do the gifts, even the inscribed ones, really belong, the Bar Mitzvah boy or his parents? Perhaps they own all his possessions?
Halachah discusses an adult child—a Bar Mitzvah, is after all, an adult—who is samuch al shulchan aviv (lit., reclines on his father’s table, i.e. is fully supported by his parents). If this “child” comes by a possession, for example, he finds a metziah (an ownerless object), most poskim agree that it belongs to the child. Rabbenu Tam disagrees, and claims that in this case, the adult child’s metziah belongs to his parents. It is not definitive whether Rabbenu Tam would include a matanah (gift) in the same category as a metziah, or whether it might, in his opinion, belong to the adult child. The consensus among poskim is that ownership is definitely conferred once the adult child is a muchzak; by accepting the gift from the giver, the item is his free and clear.
If the gift is in the parent’s possession, there might be place in halachah for them to keep it on the principle of “Kim li!”.
(It should be noted that parents who rely on Bar Mitzvah gifts to pay for the affair or the child’s Tefillin should discuss this with the child in advance; the Bar Mitzvah boy’s whole-hearted agreement to “share the costs” would cover all possible halachic issues.) (Halacha2go.com #633*)
* References are available for this Halacha on the websites: www.Halacha2Go.com and www.AskTheRav.com
Please note that these halachos apply in general situations, if you are unsure whether the halacha applies to your particular situation, please consult a Rov.