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!
