(2012/5773)
Many otherwise knowledgeable Jews find the contemporary workings of financial litigation in Beit Din to be obscure and even foreign. In this series we will highlight some basic points about Beit Din that every Jew should find helpful. In an effort to enhance comprehension, we will present a fictional case and explain how a Beit Din could resolve such a situation.
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 begin our discussion by presenting seven introductory concepts that are essential for understanding how Batei Din currently function.
Batei Din, Civil Courts, and Attorneys
Halachah forbids us to submit financial disputes to a Nochri court for adjudication (as we discussed at length in our past two essays). Financial disputes with our fellow Jews should be resolved “within the family” and according to the rules of our tradition. We should emphasize that this is entirely in harmony with civil law, as civil courts are most pleased with alternative dispute resolution. Civil courts are overburdened and the government is delighted to be relieved of the burden of resolving our disputes.
Indeed, civil courts will most often enforce the decisions of Batei Din. It is sound civil public policy to encourage such arbitration. However, the civil courts will enforce a Beit Din ruling only if the Beit Din adhered to the civil rules for arbitration. For example, a civil court will not enforce a Beit Din ruling if the Beit Din did not permit each litigant to be represented by a licensed attorney of his or her choice. For this and other reasons, litigants are often represented in Beit Din by attorneys, even though the Mishnah and Gemara hardly ever describe the presence of lawyers in a Beit Din.
It is very much in the interest of promoting Halachic observance to hew closely to the civil procedures for arbitration, since civil courts are currently the only mechanism for enforcement of Piskei Din (Beit Din rulings). The Torah speaks of the Mitzvah to appoint “Shofetim VeShoterim,” judges and policemen, to enforce the rulings of the Dayanim (rabbinic judges). In a Torah society, the Jewish government appoints Shoterim to enforce the rulings of the Beit Din. In American society, the civil courts function as our Shoterim. Those who reside in the United States are most fortunate that the courts are strongly inclined to enforce properly-adjudicated Batei Din arbitrations. This is not the case in many other jurisdictions.
The Role of Civil Law in Beit Din – Three Portals
One might be rightfully puzzled at the title of this section – 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, the Halachah obligates us to honor the laws of the jurisdiction in which we reside. However, there is considerable difference of opinion in regard to the scope of the applicability of this rule. Moreover, Posekim are most reluctant to eviscerate Halachah by too liberal an application of Dina DeMalchuta Dina.
Many Dayanim 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 mandate. Work hours is a classic example (Halachah expects employees to work from dawn to dusk). The common commercial practice of fewer or longer 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 home owner 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 in accordance with civil law of a specific jurisdiction as of the day 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 Ribit, charging interest).
Other Batei Din view such agreements as violations of the prohibition to adjudicate in civil court. They reason that Halachah forbids submitting both to the authority of a Nochri court and to Nochri 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 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 signing of the prenuptial agreement.
Considering that Halachah incorporates some aspects of civil law, it is often desirable to select at least one Dayan who is expert in the civil law of the specific matter that is being adjudicated by the Beit Din. Many of the Dayanim who serve on the Beth Din of America earned a law degree.
Shetar Beirurin/Binding Arbitration Agreement
Batei Din require litigants to sign a Shetar Beirurin, a binding arbitration agreement, before they will adjudicate a dispute. Without such consent, the Beit Din might not have Halachic jurisdiction over the parties and the parties might choose to ignore the Beit Din’s rulings. Moreover, a civil court will not enforce a ruling unless the parties signed a proper binding arbitration agreement. Batei Din do not enjoy authority in a country that separates state and religion, unless the parties contractually agree to submit to the jurisdiction of a specific Beit Din to settle a specific dispute.
Indeed, refusal to sign a Shetar Beirurin is regarded by Batei Din as tantamount to refusal to adjudicate the dispute in Beit Din and one who acts thusly is held in contempt of rabbinic court (“Mesareiv LaDin”). Refusal to sign a Shetar Beirurin is a strong indication that the party does not intend to respect and honor the Beit Din ruling if it does not rule in his or her favor.
Since the Shetar Beirurin is both a Halachic and civil necessity, it must conform both to Halachah and to civil law. The Beth Din of America’s Shetar Beirurin is in English, for example. The aforementioned RCA/BDA prenuptial agreement is written in English and is independent of the Ketubah and the Tena’im.
The composers of the RCA/BDA prenuptial agreement considered the dissenting opinion in Avitzur v. Avitzur, a classic New York civil court (5-4) ruling. The majority upheld the civil enforceability of the Conservative movement’s prenuptial agreement, a binding arbitration clause written in Aramaic and incorporated into the traditional Ketubah. The dissent argued that a civil court is not permitted to enforce a “liturgical document.” In addition to avoiding the Conservative prenuptial agreement’s Halachic flaws, the Orthodox prenuptial agreement steers clear of this critique and thereby enhances its likelihood of enforceability in civil court.
One Dayan or Three Dayanim
The first Mishnah of Mesechet 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 of 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 in arriving at a decision. Pirkei Avot specifically advises rabbis to refrain from resolvingmonetary disputes alone without the benefit of two additional Dayanim.
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 much greater chance of achieving Shalom when three Dayanim decide a case. The losing party is much more likely to reconcile himself/herself to a decision of three experts rather than only one. A rational individual who is convinced of his or her stance in a dispute will relent when three respected figures believe otherwise.
Conclusion
IY”H, we will continue with the presentation of Beit Din basics in our next issue.