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Hilchos Choshen Mishpat

Volume I : Number 30

Your Rights In Bais Din

Question:

Reuven has been summoned to a Din Torah by his partner Shimon to resolve a business related dispute that has arisen between them. Reuven has never appeared before a Bais Din before. What are his Halachic rights and responsibilities regarding setting up a forum to have these issues resolved?


Answer:

If a Jew has a grievance with another Jew which may involve monetary compensation, an enforcement order or an injunction, etc., he is required by the Torah to seek redress in Bais Din before turning to the secular courts. Since we are the "People of the Book", who scrupulously study and live according to Torah Law, turning to secular authorities for justice is considered a Chillul Hashem (desecration of G-d's name). However, a Bais Din does not handle all types of cases, and a Rabbinic Judge must grant permission before a Jew presents his case against another Jew to the secular authorities (governmental or even a professional association).

The Halacha requires that one respond promptly after receiving a Hazmana (summons) to a Bais Din. Most Batei Din employ a Mazkir (administrator) who is knowledgeable in Torah Law. His job is to listen to the basic claims of the plaintiff and the initial response of the defendant, and to write and send the Hazmana. Often the Mazkir of the Bais Din may attempt to resolve the dispute without resorting to a Din Torah. Litigants communicate only with the Mazkir, to avoid ex parte contact with the Dayanim. The Torah insists that Dayanim treat the opposing parties equally, and anything which may upset the balance, or even appear to upset the balance, such as ex parte communications, must be avoided.

If you have a grievance that cannot be resolved in an informal manner and are considering going to a Bais Din, contact the Rabbi of your Synagogue and explain your situation. Your Rabbi may suggest that you call the secretary of the local Bais Din, or he himself may decide to send a Hazmana to your opponent. If action is initiated through an established Bais Din, you will follow their procedures regarding scheduling and generally will utilize their personnel to serve as Dayanim and Mazkir. If your Rabbi issues the Hazmana, it is likely that the Bais Din will be structured as a Zablah, i.e. each of the parties will choose one Dayan that is acceptable to them, and the two Dayanim will choose a mutually acceptable third Dayan. This modality of Bais Din is the standard nowadays.

[The word "Zablah" is actually an acronym for the phrase used in the Talmud to describe this type of forum. "Zeh Borer Lo Echad etc.", which literally means "This party chooses one, and this party chooses one.]

If you receive a Hazmana which has been issued by a Rav, you will select a Dayan who is willing to hear the case, and will inform the issuer of the Hazmana of your choice. Your opponent can only disqualify your selection of Dayan on limited grounds, such as the Dayan is closely related to a party, the Dayan is an extremely close friend or bitter foe of a party, or that the Dayan has some conflict of interest. In order to disqualify a Dayan, the opponent must bring absolute proof. However, the custom is that if one of the parties absolutely objects to a particular individual serving on the case and the objection is not totally groundless, the Dayan will voluntarily withdraw.

If you receive a Hazmana from an accepted Bais Din, and you accept the authority of that Bais Din, you must comply with their rules as noted above. If you object to the authority of the Bais Din or the personnel that the Bais Din empanels to judge the case, you may demand that the case be heard as a standard Zablah (see above). This is the Psak of the Shulchan Oruch. The Rema, who most Ashkenazi Jews recognize as Halachically authoritative, rules that if a Bais Din is duly established and empowered by the community, that Bais Din may impose it's authority upon any local defendant. For various reasons, this ruling of the Rema is not generally applicable today, especially in societies where religious courts and religious bodies have no governmental franchise or recognition.

Nowadays, the decision of a Bais Din has enforceability because both parties sign a contract of "Binding Arbitration" prior to the hearing of the case. Thus, after a decision is rendered, should one party refuse to comply, the aggrieved party (after receiving explicit permission from the Bais Din), may seek enforcement in secular court. The secular courts will usually uphold the decision of a properly conducted Binding Arbitration proceeding without reviewing the merits of the claims and evidence.

In any case, one who refuses to attend any venue of Din Torah may have sanctions imposed upon him by the community and/or the Bais Din. Furthermore, the Rabbi or Bais Din may grant the plaintiff permission to sue the obstinate party in secular court.

The ultimate purpose for any Din Torah is to restore Shalom between the disputing parties. However, it is of utmost importance that the parties realize that a properly conducted Din Torah is concluded with Divine assistance. Regardless of who may be required to pay out money or whose claim is dismissed, by accepting and fulfilling the Psak, everyone comes out a winner.

Feedback is appreciated! It can be sent toatendler@torah.org.

The above article was written by Rabbi Sender Goldberg, Rabbi of Congregation Nachal Chochma in Baltimore, MD. Rabbi Goldberg serves as the Sofer for the Bais Din of the Vaad HoRabbonim of Greater Washington. He is also owner of Trilogy Micro Systems, a computer sales company in Baltimore. Rabbi Goldberg can be reached at trilogymicro@juno.com for any further Halachic inquiries.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!

 






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