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Shabbat Parashat Toldot 5774

P'ninat Mishpat: To Adjudicate in Israel or In the Defendants City?

(from Mishpetei Shaul, siman 42 a ruling of Rav Ovadia Yosef, Rav Shaul Yisraeli, and Rav Eliezer Goldschmidt)

Case:  An Israeli family moved to Europe, leaving a home in Tel Aviv. The couple quarreled, and the wife (=pl) left with the children and is now in Tel Aviv. The wife is suing the husband (=def) in Israel for support, but he is willing to adjudicate only in a beit din in his city due to the trip’s expense and the danger to his job. Pl claims that since pl and def are Israeli citizens, their case should be heard in Israel and that since the local beit din is not a government court, its decisions are not enforceable.

 

Ruling: The regional court did not claim jurisdiction because of the rule that the place of adjudication follows the place of the defendant (Rama, Choshen Mishpat 14:1). This, they claim, relates not to jurisdiction per se, which might be impacted by citizenship, but to geographical concerns. Regarding enforceability, if the couple signs an arbitration agreement, it should be enforceable and potential difficulty should not make a difference if there are not indications to expect it (see Tosafot, Sanhedrin 31b). The Supreme Rabbinical Court heard the appeal.

The set courts in Israel, in comparison to a beit din abroad that is not set, can be compared to the gemara’s (Sanhedrin 31b) statement that a lender can force a borrower to go with him to the beit hava’ad (respected regional court). Rav Yisraeli discussed at length whether only a lender can force a borrower or whether anyone who can substantiate reasonable claims can make a defendant go to the more respected court. In the final analysis, since the Rambam limits the ability to force going to the beit hava’ad, pl cannot force def to go to Israel on these grounds.

The main argument between pl and def is whether def is required to continue support when pl left their joint place of residence. Rav Yisraeli reasoned that since the obligation to support one’s wife is a set obligation and def will have to prove this case is an exception to the rule, he is in regard to this matter like a plaintiff. Since, he reasons, the idea of going to the defendant’s place is a matter of natural justice, the onus is on the one who is initiating a change. Rav Goldschmidt and Rav Ovadia Yosef countered that the rule is that a woman who refuses to live with her husband does not receive support. While she will receive it if she can prove that she was justified in separating, she is a plaintiff regarding the prospect of proving that she fits into the exception of women who deserve support when not living at home.

However, there is another reason to have the case in Israel, which the three distinguished dayanim agreed to, albeit with slightly different nuances. Pl and def are citizens of the State of Israel, who continue to have a connection to Israel because they have a home in Tel Aviv, plan to return, and receive some salary through an Israeli company connected to the government. Thus, when the courts in Israel do not feel that the level of accountability that the ad hoc beit din abroad would provide suffices, the laws of the State of Israel that give the Rabbanut courts jurisdiction take precedence over the preference to follow the place of the defendant. The dayanim considered this to be true in this case.

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