Hi Josh,

Your question regards one of the most interesting and complicated topics in Hilchos Mamonos ? Choshen Mishpat.

The Kim Li rule, is not mentioned in the Talmud, and was first brought up in the time of the Rav Shmuel Ben Baruch, the Rebbi of the Maharam of Ruttenburg.

The idea of Kim Li, is based on a more basic rule called Chazaka. This rule teaches, that the defendant who is holding on to his money, is in a stronger position, since the money needs to be 'taken out' of his possesion. He is considered a Muchzak. Since we know that the rule of Rov, that teaches us that in any case of Safek, we can use the majority to decide what to do,is not enough to overpower a Chazaka. In a case where there are two opinions, the defendant can say, he can keep on holding on to his money, since there is a minority opinion that justifies him. This is similar to the rule, that a statistic majority cannot extract Mamon out of the Muchzak.

The obvious problem with the Kim Li rule, is that it undermines any normative judicial procedure and any former judgments, since anyone can arise again any minority opinion from the past, although this opinion has been rejected by most Poskim.

This problem and many others, brought many Mefarshim to write lists of Klalim ? rules of Kim Li, determining what are the boundaries of using Kim Li.

Here are a few examples, some of them will answer your specific questions, while others will show how complicated the idea of kim Li is.

a. You cannot use Kim Li in a case of Issurim. As I wrote above, Kim Li is an addition to the Chazaka rule. Therefore, it is not relevant to rice on Pesach. Some Achronim (such as Knesset ha'Gedolah and Shvus Yaakov) find it a bit difficult, since in every case of Mamon, we have at least one Issur of Lo Tigzol, so why is it legitimate to say kim Li, since it is always relevant to Issurim as well.

b. The Urim ve'Tumim writes, after the Shulchan Aruch was written, it is not possible to say Kim Li against the Shulchan Aruch, since it means De-facto, that the Shulchan Aruch is meaningless, something which is unacceptable. He adds, that since Rav Yosef Karo himself writes in the preface to his book, that he Paskened according to the majority opinion, he showed, that it is not permitted to use Kim Li anymore, and hold like the minority opinion.

c. Although the opinion of the Tumim was not accepted As-is by other Poskim, we find many of them who say that it is not permitted to use Kim Li if it contradicts any Psak of the Shulchan Aruch. There a few reasons for this given by different Poskim. There is another rule that says, one cannot use Kim Li against the Mara de'Asra, the main Rabbi of a city or town. To some extent, the Shulchan Aruch, is sort of a Mara de'Asra of Klal Yisrael. Many Ashkenazic Poskim, starting from the Shach and many after, say that in Ashkenazic communities, the Rama is considered as the Mara de'Asra and one cannot use Kim Li against the Rama's opinion. (BTW- There are very interesting Tshuvos in the Responsa Sforim, regarding court cases that one side is Sephradi, and the other is Ashkenazi, whether or not is permitted to use Kim Li in cases that the Mechber and the Rama argue).

d. The Maharik says, that it is not permitted to use Kim Li in a case of Machlokes between the Rishonim, since it is impossible to determine between such great opinions.

e. The Radbaz adds many restrictions. He says, it is not permitted to use Kim Li against one or more of the following. Not against the Mara de'Asra's opinion as brought above, not against an opinion that was accepted as a minhag, only in a case that both opinions are equal in the number of Poskim who say so, only between two scholars who are considered equal in wisdom, and only between two opinions that are well known in Klal Yisrael. Many argue with the radbaz and say as I brought above, that it is permitted to use Kim Li even of the opinion is the minority opinion.

f. The Shach says, that one cannot use Kim Li if the minority opinion was rejected by thirty scholars or more.

g. There is a great dispute between many Poskim, whether the defendant has to know the different opinions and actually cite the specific opinion as said by a certain Posek, or the Beis Din can say Kim Li for the defendant even if he is a well known Am ha'Aretz. The bottom line is that most Poskim say this is the rule of the court to say Kim Li for the defendant even if he does not know about this opinion at all.

We can learn from this an answer to your second question. A person does not have to be consistent in his use of Kim Li, since it is not really a stand he needs to take, but rather an idea that as long as there is a minority opinion on his side, it is not possible to take money out of his hands.

There are many much more interesting details regarding Kim Li. I hope I was able to bring you a significant taste.

Best regrds,

Aharon Steiner