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Shabbat Parashat Ki Tavo 5771

P'ninat Mishpat: A Dayan Who Joined the Court After the Claims Were Heard

(based on Shurat Hadin, vol. VIII, pp. 533-539)

What happens when beit din hears the litigants’ presentation of their claims and then one of the dayanim retires before the ruling is rendered? Is it possible for a new dayan to render an opinion based on the account he heard from the other dayanim or by reading the transcript?

The Rama (Choshen Mishpat 3:1) says that if there is no dayan who knows how to render a decision, local people can hear the claims and send them elsewhere for knowledgeable dayanim to render a ruling. This implies that hearing the claims and rendering rulings can be separated. However, the Rama is talking about a special dispensation made for a town that has no valid dayanim and must prevent anarchy. The Sha’ar Mishpat (3:3) infers that, otherwise, only one who hears the claims can rule.

If the litigants accept the jurisdiction of the new dayan, that acceptance obviates the need for a proceeding that follows normal guidelines. In a case where litigants were only made aware of the existence of a new dayan and did not comment, the following sources apply. The Yerushalmi (Sanhedrin 1:1) says that when the sides went before a lone expert dayan without comment, this is considered acceptance of him to rule on his own. However, the Shvut Yaakov (I, 137) says that this is unique to a lone expert, who is fit to judge, even though it is normally avoided. The Bach (CM 5) does allow it for those who require special acceptance but only when both sides came of their own volition, and not when one side just answers a subpoena. Thus, the fact that a litigant does not protest is insufficient, as he may just not want to stir up problems for himself. The Rashba (cited by the Beit Yosef, CM 13) says that one has to be sure that a change from the normal procedure has been accepted by the sides.

The Shulchan Aruch (CM 13:6) describes the use of experts who did not hear the case as “sending their opinions to beit din,” but the beit din of three who heard the case has to actually render the decision. According to the Tur, the local beit din is allowed to be a “rubber stamp” for the opinion of the expert beit din who sent their opinion, but even he requires the full beit din who heard the case to present their full findings to the other beit din. It is insufficient to simply hear the case and pass on a transcript. In fact, according to the consensus of Rishonim, not only may beit din not hear witnesses via a translator, but they cannot hear the litigants through a translator or through written account without special permission (Shulchan Aruch, CM 13:3). The S’ma explains that hearing the litigants directly gives the dayanim a better chance of coming to the truth.

For this reason, the regulations of the Beit Din Procedures (#71) say that if a dayan needs to be replaced, beit din will decide whether to continue or begin the case again after discussing the matter with the parties.

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