(2012/5773)
Many otherwise knowledgeable Jews find the contemporary workings of financial litigation in Beit Din to be obscure and even foreign. Last week we began a series of essays in which we highlight some basic points about Beit Din that every Jew should find helpful. In an effort to enhance comprehension, we will present a fictional Din Torah and explain how a Beit Din could resolve the dispute.
In order to make matters simpler, we will forego our usual copious citations to the sources of the issues we discuss. Many sources for these issues appear in the second volume of Gray Matter, where commercial litigation in Beit Din is discussed at great length. We will continue our presentation of seven introductory concepts that are essential for understanding how contemporary Batei Din function.
Choice of Beit Din – Beit Din Kavu’a or Zabla
Halachah offers two basic options of choosing a Beit Din to adjudicate a dispute. One is a sitting Beit Din (Beit Din Kavu’a) and the other is a Zabla Beit Din, in which each litigant chooses a Dayan and the two Dayanim then choose a third Dayan. There are advantages and disadvantages to each type of Beit Din. Some prefer a Zabla because the parties exercise some control over the choice of Dayanim. Customarily, the two Dayanim chosen by the parties ascertain that the third Dayan (Shalish) is acceptable to both litigants.
A disadvantage of this type of Beit Din is that sometimes the Dayanim chosen are not compatible and do not work well together. While each Dayan may be excellent in his own right, the combination might not work well. Another disadvantage is that a Zabla Beit Din, generally speaking, will be more expensive, since the Dayanim serve not only as the judges but also as the administrators of the case. Since the Dayanim must invest more time, their fees are higher. Visit www.bethdin.org for a list of fees charged by the Beth Din of America, a Beit Din Kavu’a.
Another advantage of using a Beit Din Kavu’a is that many Batei Din, such as the Beth Din of America and the State of Israel’s rabbinic courts, have published formal rules and procedures for the Dinei Torah that they adjudicate. An ad hoc Zabla Beit Din does not have such rules and procedures which specify the rules the Dayanim will follow. A solution to this problem, however, is to denote in the Shetar Beirurin/binding arbitration agreement that the Zabla Beit Din will be following the rules and procedures of a specific Beit Din Kavu’a.
Choice of Law – Din, Pesharah, and Pesharah Kerovah LeDin
As surprising as it sounds, there is a choice of law in Beit Din. While every Beit Din judges based on Jewish Law, Halachah offers three options regarding the methodology of decision-making to be employed by the Beit Din. One option is “Din,” the strict application of the Halachah. Another is “Pesharah,” which can mean either compromise or equity (Batei Din vary in their understanding of the term Pesharah). The third option is “Pesharah Kerovah LeDin,” which is a blend of the aforementioned two. While the Beth Din of America used to offer litigants the choice of pure Din in its rules and procedures, in recent years it has offered only either Pesharah or Pesharah Kerovah LeDin.
Both the Gemara and the Shulchan Aruch strongly discourage applying strict Din in practice. In fact, many Batei Din today regard a litigant who insists on a Din judgment as a Mesareiv LeDin, in contempt of rabbinic court. Such is the extent of the avoidance of conducting a Din Torah (Beit Din litigation) in accordance with strict Din.
The preferred method is Pesharah Kerovah LeDin, since Pesharah often appears to be arbitrary. Indeed, Batei Din will apply Pesharah only if the parties specifically request a pure Pesharah. Pesharah Kerovah LeDin is the preferred method of conflict resolution; on the one hand, it hews for the most part to the rules set forth in the Shulchan Aruch, but it nonetheless offers some flexibility to consider equity and fairness in decision-making.
One would think that a plaintiff would prefer Din, since this would allow collection of all he is owed without compromise. However, a plaintiff might prefer Pesharah, as the rules of evidence are somewhat relaxed in such a case, and therefore it may be easier for him to prove his case to the Beit Din. In addition, some Batei Din will not excuse Gerama BeNezikin (indirect damage) if ruling in accordance with Pesharah, unlike pure Halachah, which does not obligate one to pay for damage done indirectly. Thus, there are both potential advantages and disadvantages to both plaintiff and defendant in regards to choosing either Din, Pesharah, or Pesharah Kerovah LeDin.
The choice of Din, Pesharah, and Pesharah Kerovah LeDin is spelled out in the Shetar Beirurin/binding arbitration agreement signed by the litigants appearing before Beit Din. Litigants should also ask the written clarification for their understanding and application of Pesharah (is it compromise or equity) and Pesharah Kerovah LeDin (is it inclined more to Pesharah or to Din). The Beth Din of America explains its standards regarding Pesharah and Pesharah Kerovah LeDin in its rules and procedures, available at www.bethdin.org.
We should clarify that Pesharah is not an extra-Halachic consideration. Rather, it is an integral component of Halachah, since the Torah commands us (Devarim 6:18), “VeAsita HaYashar VeHaTov BeEinei Hashem Elokecha,” to do the right and the good in the eyes of Hashem. Rashi explains that this refers to the idea of Pesharah. Thus, when Dayanim apply Pesharah Kerovah LeDin or Pesharah, they are acting well within their Torah mandate and not outside the boundaries of Halachic dispute resolution.
Role of your Rav
Generally speaking, it is not a good idea for one’s Rav to resolve a monetary dispute. Tensions often run very high regarding monetary disputes, and it is usually preferable for a neutral and disinterested party/ies to resolve the dispute. Moreover, a Rav is generally biased toward his congregants, since he presumably has a deep connection with them, thereby rendering him disqualified to render an unbiased decision regarding a dispute.
Introduction to the Fictional Case
Before we present our model case we need to introduce three basic Halachic concepts. The first is HaMotzi MeiChaveiro Alav HaRe’ayah, that the burden of proof rests upon the plaintiff. Witnesses and documents are classic forms of evidence; e-mail correspondence today is often used as evidence in contemporary Batei Din. Thus, if one claims that his friend owes him $40,000 and produces no evidence to that effect, the Beit Din will not award any compensation to the plaintiff.
The second concept is Shevu’at Modeh BeMiktzat. In this case, the plaintiff makes a claim and the defendant admits to part of the claim. Admission is the strongest form of evidence, as Chazal teach, “Hoda’at Ba’al Din KeMei’ah Eidim Dami,” an admission is the equivalent of one hundred witnesses. However, if there is no evidence beyond the amount of admission, the Beit Din does not obligate the plaintiff to pay any more than he has admitted to.
However, since he has admitted to part of the claim, the Torah demands an oath from the defendant that he does not owe any more money than that which he admitted. For example, if one demands $24,000 from his friend, who admits to $100 of the claim, the friend is required to pay only $100 since there is no evidence to the amount beyond that sum. However, he must take an oath that he truly owes no more than $100.
The third concept is called Pidyon Shevu’ah, the redemption of an oath. As we discussed at length last year in Kol Torah (archived at www.koltorah.org), the virtually universally accepted practice among contemporary Batei Din is to refrain from administering oaths. In a situation where one is obligated to take one of the three Torah level oaths, Modeh BeMiktzat, Shevu’at Eid Echad (where there is one witness to bolster the plaintiff’s claim) and Shevu’at HaShomerim (the oath taken by a watchman who claims that the item he was guarding was stolen, that he did not take the item), the Beit Din will impose a Pesharah upon the parties. The Beit Din, in issuing such a Pesharah, must exercise good judgment to ensure that a fair and reasonable decision is issued, as we discussed at length last year.
A Fictional Case
A musician hired a website designer (both parties reside and work in San Francisco) to help sell twelve of his recordings on the internet. The musician engaged the website designer to perform three tasks: edit the recordings, post them to his website, and add e-commerce capability to his website. In testimony before the Beit Din, the musician and website designer had no disagreement about this point.
They did, however, sharply disagree about the terms of payment. The plaintiff (the website designer) claimed he was hired to work for $120 per hour and that he worked for 200 hours to complete the assigned tasks. Thus, he claimed that he was owed $24,000. The defendant (the musician) claimed that the agreement was to pay twenty-five percent of the proceeds from the sale of the recordings. The defendant stated that he received a total of $400 for the recordings. Thus, he claimed that he owed only $100. The terms of payment were not recorded in a document, nor were there any witnesses to testify what the parties agreed to pay.
Conclusion
We conclude our discussion at this point asking the reader to think how a Beit Din would resolve this issue, utilizing the introductory material from the essays of the past two weeks. Try to figure out how a decision would be made if either Din or Pesharah or Pesharah Kerovah LeDin were utilized by the Beit Din. The answers will be presented IY’H in next week’s issue.