(2018/5778)

For the fifteenth consecutive year, Torah Academy of Bergen County conducted a well-attended post-finals learning program led by this author. While we focused on a Sefer of Tanach in previous years, this year we decided to focus on practical Halachic issues. One of the days was devoted to delving into decisions issued by the Beth Din of America about resolving financial disputes between parties. We share our thoughts on the ruling issued regarding a dispute between roommates that we shared with our readers last week in Kol Torah.  

The students commented that this decision was intelligent, well-crafted and nuanced. We proceed to note the specific aspects of the decision that caught their attention. This week, we will focus our analysis on the procedural aspects of the case, while in next week’s issue, we will address the substance of the decision.

Incorporation of Civil Law in the Decision

We noted that the decision extensively cited not only the Shulchan Aruch but also civil law. One might be rightfully puzzled at this—after all, a Beit Din is supposed to rule in accordance with Halachah. What role could civil law have in Beit Din? There are, however, three portals through which Halachah potentially incorporates civil law. The first is that in regards to financial matters, Dina DeMalchuta Dina—Halachah obligates us to honor the laws of the country in which we reside. However, there is considerable difference of opinion in regard to the scope of the applicability of this rule. Moreover, Poskim are most reluctant to eviscerate Halachah by too liberal an application of Dina DeMalchuta Dina.

Many Dayanim (rabbinic judges) are more comfortable with a different portal, Minhag HaMedinah, the common commercial practice of a particular locale. The Mishnah and Gemara quite often apply Minhag HaMedinah even when it is not identical to Halachic practice. Work hours are a classic example. Although Halachah expects employees to work from dawn to dusk, the common commercial practice of fewer working hours overrides the Halachah. It is important to note that Dina DeMalchuta Dina often determines and creates the Minhag HaMedinah.

In fact, the rules and procedures of the Beth Din of America (available at www.bethdin.org) state that its Dayanim will incorporate common commercial practice in their rulings “to the fullest extent permitted by Jewish Law.” A contemporary example is building codes. A Beit Din will not, for the most part, adjudicate a dispute between a homeowner and a building contractor based on the standards for buildings articulated by the Gemara. Instead, compliance with contemporary building codes is the basis, for the most part, of the decision. Indeed, the parties to a building agreement expect contemporary building codes to serve as the benchmark for proper fulfillment of their contract. Thus, civil building codes create a Minhag HaMedinah and are incorporated into the Halachah.

A more controversial portal is the contractual agreement for a Beit Din to adjudicate disputes between the parties in accordance with the civil law of a specific jurisdiction as of the day of the signing of the contract. The Beth Din of America will, generally speaking, honor such agreements. They reason that Halachah follows Rabi Yehudah, who permits structuring financial affairs in any manner provided that it is honest, consensual, and does not violate ritual law (such as the prohibition of Ribbit, charging interest).

Other Batei Din, however, view such agreements as a violation of the prohibition to adjudicate in civil court. They reason that Halachah forbids submitting to the authority of a non-Jewish court and to non-Jewish law. The Beth Din of America, however, argues that one submits to the authority of the civil law only if the contract calls for the Beit Din to rule in accordance with the civil law as of the date of the adjudication of the future dispute.

Indeed, the prenuptial agreement promoted by the Rabbinical Council of America and the Beth Din of America (and approved by Rav Ovadia Yosef, Rav Zalman Nechemia Goldberg, and Rav Asher Weiss) offers the option for couples to submit to the jurisdiction of the Beth Din of America for adjudication of any financial dispute emerging from divorce, based on civil equitable distribution laws or community property laws. Of course, the agreement calls for the Beit Din to apply these civil laws as they apply on the day of the couple’s signing of the prenuptial agreement.

Considering that Halachah incorporates some aspects of civil law, most often a case will include at least one Dayan who is an expert in the civil law of the specific matter that is being adjudicated by the Beit Din. Some of the Dayanim who serve on the Beth Din of America have a law degree. Indeed, the lone Dayan who sat on our case has a law degree.

One Dayan

The students noted that only one Dayan sat on this case. They found this surprising, since the first Mishnah of Masechet Sanhedrin teaches that a Beit Din of three is required for adjudication of commercial disputes. However, Halachah permits parties to choose one Dayan to judge their dispute. As we mentioned earlier, Halachah grants us great flexibility in regards to financial matters. The advantage to choosing one judge is that the matter can be resolved more quickly since time is not needed for the judges to agree upon a ruling. Moreover, the expense of paying more than one Dayan is avoided.

The advantage of a Beit Din of three Dayanim is that there will be much more grappling with the issues involved. Most likely, a better decision will be reached since more perspectives are involved at arriving at a decision. Pirkei Avot specifically advises rabbis to refrain from resolving monetary disputes alone without the benefit of two additional Dayanim sitting on the case.

It is especially recommended to use a Beit Din of three Dayanim if the matter is under serious dispute and emotions are running high. In such cases, creating/restoring peaceful relationships is a major goal of a Din Torah (Beit Din litigation). There is a much greater chance of achieving Shalom when three Dayanim decide a case. The losing party is much more likely to reconcile himself to a decision of three experts rather than only one. A rational individual who is convinced of his stance in a dispute will relent when three respected figures believe otherwise.

However, the Rules and Procedures of the Beth Din of America (page six) state: “If the Submission or contractual provision pursuant to which arbitration is initiated does not specify the number of arbitrators (Dayanim), the dispute shall be heard and determined by one arbitrator (Dayan) if the amount in controversy is less than $10,000, unless the parties, by mutual agreement … direct that the dispute be heard and determined by a panel of three arbitrators (Dayanim).” Since our case involved less than $1,000, only one Dayan heard the case.[6]

Sources Cited—A Partial Remedy to the Unpredictability Concern

It is no secret that many attorneys, including Orthodox attorneys, are not yet comfortable recommending Beit Din as a forum to adjudicate financial disputes. To a great extent, this is due to a lack of predictability of the decisions issued in Batei Din. The Beth Din of America has published eight of their decisions in order to address this concern.[7] One common denominator of each decision is that the articles only quote the most major and predictable sources, such as the Shulchan Aruch and the Teshuvot Igrot Moshe of Rav Moshe Feinstein.[8] Teshuvot Shevut Yaakov, cited in regard to reducing the award by one third due to Pesharah (equity considerations), is also a very widely-accepted, commonly-applied ruling of Batei Din. By limiting the citations to only the most prominent authorities and not applying lesser-known rulings, one makes it easier to predict Beit Din rulings.

An Example of a Rational “Pesharah Kerovah LeDin” Decision

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 Din and Pesharah.

While the Beth Din of America used to offer the choice of pure Din in their rules and procedures, in recent years it has offered only Pesharah and Pesharah Kerovah LeDin options.

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 Mesareiv LeDin (in contempt of rabbinic court). Such is the extent of the avoidance of conducting a Din Torah in accordance with strict Din.

The preferred method is Pesharah Kerovah LeDin since pure 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 since on the one hand, it hews for the most part to the rules set forth in the Shulchan Aruch, but on the other hand, it 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 since the rules of evidence are somewhat relaxed in such 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 (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 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, or Pesharah Kerovah LeDin is spelled out in the Shtar Beirurin, binding arbitration agreement, signed by the litigants appearing before Beit Din. Litigants should also ask for written clarification of the Beit Din’s understanding and application of Pesharah (is it compromise or equity?) and Pesharah Kerovah L’Din (is it inclined more to Pesharah or to Din?). The Beth Din of America explains their standards regarding Pesharah and Pesharah Kerovah LeDin in their rules and procedures, available at www.bethdin.org.

In our case, the litigants agreed to a Pesharah Kerovah LeDin decision, and the TABC Hands-on Halachah Kollel students were impressed by how the Dayan adeptly blended Halachah and civil law in a rational and reasonable manner.

Conclusion

Next week, we will, iy”H, discuss substantive aspects of the decision.

[6] It seems that the Dayan was a Rebbe of the litigants who adjudicated the matter free of charge. Otherwise, it would have been foolish for the litigants to spend a significant sum on Dayan fees, which would eliminate whatever award was issued by the Dayan.

[7] Many more published decisions are needed to better address the unpredictability concern, especially in the area of adjudicating divorce disputes (though it is difficult to obtain the parties’permission to print such decisions).

[8] By contrast, the Piskei Din Rabbaniyim, the decisions of the State of Israel’s Rabbinic Courts, cite many more sources, including authorities that Torah scholars would agree are not the most prominent.