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 Shabbat Parashat Bamidbar| 5766P’ninat MishpatMishpat Ve halacha Be Israel - Part XI - Payment for Costs of Adjudication
The Rules and Procedures of our beit din have the following provision: “The sides obligate themselves to pay for the expenses of adjudication and the lawyer’s fee, as beit din will decide, at its discretion.”
On the matter of payment for the costs of adjudication there are ostensibly contradictory gemarot. Sanhedrin 31b brings a machloket whom we listen to when litigants cannot agree whether to adjudicate locally or at a regional court. R. Elazar says that since it is illogical to make someone pay a lot of money to go adjudicate over a small amount of money, they should go to a local court. Tosafot (ad loc.) understands from here that a litigant is not compensated for travel expenses.
The gemara in Bava Kamma (112b) says: “An officer of the court is believed like two witnesses regarding a ban [on one who refuses to come to court] but not in regard to a document on the matter, because he will obligate him money, for he will have to pay for the cost of the scribe.” We see then that a litigant must pay for expenses that were incurred in the process.
The basic distinction between the gemarot is that Sanhedrin is talking about a normally run case, so there are no provisions for payment. Bava Kamma refers to a case where a litigant refuses to respond to a summons, so he has to pay for expenses incurred by his improper refusal. Regarding this distinction’s parameters, there is a machloket among Rishonim.
The Rashba (Shut I, 940) limits the payments to those encountered by beit din, whom the problematic litigant must reimburse. However, expenses incurred by the other litigant, including suing him in secular court, he would not be required to pay because it is a case of g’rama b’n’zikin (indirectly caused damages). In contrast, the Maharam Rottenberg (Shut IV, 497) says that a litigant must pay for the other litigant’s expenses incurred due to his refusal. He limits the payments to those that beit din authorized the other litigant to outlay. He does not have a carte blanche, and beit din should investigate whether a given sum of money was justified.
The Shulchan Aruch (Choshen Mishpat 14:5) first brings the idea that there is not generally payment. He then brings two opinions on whether he has to pay the other side for the costs of his refusal to appear. The Rama prefers the opinion that he has to pay for authorized expenses. Until now, we have discussed only payments for he who refused to come to court. The Tumim (14:6) expands the concept of payment to a case of a frivolous claim or one who knowingly lied and thereby caused the other litigant to have to pay extra. However, all agree that in the case of an honest disagreement, the losing side does not have to pay the winning side’s expenses.
Since the parameters of this matter are disputed, our arbitration agreement includes the sides’ agreement to leave the matter up to the beit din’s judgment based on the circumstances.
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