1998/5758

              Last week we discussed what is included in a Hazmana (summons) to Beit Din.  This week we will discuss what an appropriate response to a Hazmana is.  Specifically, we will discuss what to do if one does not wish to submit to the jurisdiction of the particular Beit Din that he has been summoned to.

An Alternative

              The Aruch Hashulchan (Choshen Mishpat 26:5) rules in accordance with the Tumim (C.M. 26:13) that a defendant (1;"3) who wishes to have his case heard in an alternate Beit Din is viewed as someone who refuses to appear in Beit Din.  An exception is if the Beit Din believes that the 1;"3 is not intentionally procrastinating.  Let us cite two examples of how this has worked in practice.

              In 1957 someone wished to press a claim in the State of Israel Rabbinic Court - Jerusalem District Court (cited in Professor Eliav Schochetman's Seder Hadin p.51, note 43).  The 1;"3 responded to the Hazmana that he wished to adjudicate the case in the (Jerusalem) Beit Din of the eminent Rav Zvi Pesach Frank.  The Jerusalem District Court found the 1;"3 to be recalcitrant and permitted the ;&"3 to seek relief in the civil court system (Rabbinic Courts enjoy exclusive jurisdiction only over matters of Jewish personal status, i.e., conversions, marriage, and divorce).  The 1;"3 appealed to the State of Israel Rabbinic Courts of Appeal (a topic which we shall, God willing, explore in the future).  The Appeals Beit Din (which included Rav Yosef Shalom Eliashiv, considered one of today's leading authorities) found in favor of the 1;"3 and reversed the decision of the District Beit Din.  It reasoned that "the 1;"3 had the right to have the case adjudicated in a different Beit Din in Jerusalem and thus should not have been characterized as recalcitrant." 

              Rav Moshe Feinstein (Igrot Moshe C.M. 2:9) ruled similarly regarding a case in Bnai Brak where a husband insisted in going to a non-State of Israel Beit Din while his wife (1;"3) insisted on going to a State of Israel Beit Din.  Rav Moshe ruled that the wife's demands were not of a recalcitrant nature.

              The right to choose a court applies only if the alternate Beit Din is deemed to be an absolutely neutral venue.  For example, the following case was heard in the Tel Aviv Beit Din in 1986 (cited by Professor Schochetman, ibid).  The defendants, Lubavitcher Chassidim, sought to move the case to a Beit Din consisting of Chabad rabbis (the plaintiff was not Lubavitch).  The Beit Din, which consisted of outstanding Dayanim including Rav Shlomo Dichovsky and Rav Avraham Sherman, denied the motion of the defendants, stating that:

The Beit Din of Chabad is not situated in the locale where the disputants reside...It is not conceivable to force one who is not Lubavitch to submit to the jurisdiction of a Chabad Beit Din...It is reasonable to say that the Chabad Dayanim will be more sympathetic towards Lubavitch-affiliated individuals than towards one who is not affiliated with Chabad.

Using Arbitration Instead of an Established Beit Din

              Rabbi Akiva Eiger (C.M. 3:1) ruled that the 1;"3 has the right to state that he wishes to bring the claim to a group of people (not necessarily rabbis) who will adjudicate the dispute according to /1%# %2&(9*., prevalent business practice, and not according to Din Torah.  He has this right "since this is the local custom [and] in such a case we say that /1%# /")- %-,% (prevalent business practice overrides Halacha)."

              In 1982 the following case (found in Piskei Din Rabbaniyim 13:330) was brought before the Beit Din of Ashdod.  The ;&"3 wanted to bring the 1;"3 to adjudicate a claim before the arbitration panel of the Israel Union of Engineers and Architects.  The ;&"3 pointed out that the parties' contract contained a clause stating that all disputes would be brought to that body.  The 1;"3 refused to do so, saying that the clause was in violation of Halacha.  The Beit Din ruled in favor of the ;&"3 citing the comments of Rabbi Akiva Eiger proving that the arbitration claim was indeed in harmony with Halacha.  The Beit Din explained that the panel made judgements based on common sense and common business practice, and not based on secular law.

A '"-"! Beit Din

              According to the Shulchan Aruch (C.M. 3:1), a 1;"3 has the right to claim he wants '"-"!.  This is the acronym for '% "&99 -& !($, "each picks one for himself."  A '"-"! Beit Din is created by each party selecting a Dayan and then the two selected Dayanim choose a third Dayan who will sit on the panel.  The Rosh (Sanhedrin 3:1) explains the logic of this system:

Truth will emerge from such a Beit Din, because litigants will be inclined to follow this Beit Din's ruling.  Each side will reasonably believe that he chose a Dayan who will argue in his favor, if such an argument is indeed plausible.  The Dayanim themselves will seek to find sound arguments for both sides...

              Nevertheless, the Rema (C.M. 3:1) says that if there is an established Beit Din ("*; $*0 8"&3), then a litigant cannot insist on '"-"!.  The Chazon Ish (Sanhedrin 15:7) offers an explanation for the Rema's ruling:

This [ruling] applies specifically when the community has enacted (;*81&) this policy...They would find reason to enact such legislation because negative consequences can emerge from the option to insist on '"-"!.  This includes a 1;"3 avoiding judgment by delaying until the '"-"! Beit Din is assembled.  In addition, the litigant has the right to reject the Dayan selected by his adversary merely to delay the application by justice.  In addition, sometimes a litigant appoints an unscrupulous Dayan (or "&99) and it is [often] difficult to prove that he indeed is unscrupulous.  It appears to me that just as the 1;"3 cannot insist on '"-"! if the city has a "Beit Din Kavua," he similarly cannot insist on going to a greater Beit Din.

              The Chazon Ish points out a very relevant issue that regrettably remains a big problem today.  Many report that the abuses mentioned by the Chazon Ish are prevalent today in some cases of '"-"! Batei Din.  The problem is compounded by the lack of a Batei Din Kevuim in almost all Jewish communities.  Indeed, Rav Moshe Feinstein (Igrot Moshe C.M. 2:6) and Rav Yitzchak Isaac Liebes (Teshuvot Beit Avi 5:142 - Rav Liebes is an important contemporary Posek who resides in Brooklyn) point out that there is no Beit Din Kavua in New York.  Thus, any 1;"3 has the right to insist on '"-"! with all its resultant pitfalls.

              We will (God willing) describe this problem further in next week's issue and discuss a brilliant proposal by Rav J. David Bleich to resolve this problem.