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Shabbat Parashat Korach| 5770

Pninat Mishpat: Place of Adjudication

(condensed from Mishpetei Shaul, siman 40)

Case: The plaintiff (=pl) is suing the defendant (=def) for rights in def’s apartment based on the local practice. Def, who lives abroad, told his representative, who originally signed the arbitration agreement and represented def before beit din, to refuse to adjudicate before the official Rabbanut beit din, and to agree only to a specific unofficial beit din. Pl demands that the adjudication continue before the original beit din or it should issue a k’tav seiruv (document that states that the defendant refuses to appear before beit din and allows the plaintiff to go to the civil courts).

 

Ruling: The signature of def’s representative on the arbitration agreement is not valid, as the powers def gave him related to managing the apartment, not to adjudication on his behalf. Although he stated that he was authorized, there is no indication that this was accurate. Therefore, it is as if beit din heard only one side, and they cannot issue a ruling.

We will now deal with the question of going before an unofficial beit din. The Shulchan Aruch (Choshen Mishpat 3:1) says that while any three can be a beit din, if the defendant does not want to go before the court that the plaintiff desires, each side picks one dayan and the two of them choose a third (zabla). Def did not yet refuse to take part in such a beit din. On the other hand, the Rama (ad loc.) says that if there is a set beit din in the city, one cannot demand a zabla. This claim fits in our situation, as the Rabbanut beit din sits regularly and is comprised of great talmidei chachamim. That which def says that, as a disciple of a specific rabbi, he wants a beit din that fits his approach, is a regrettable excuse.

Def further claims that as an American citizen, he should not be bound by the local minhag in Israel. This is a claim that he can present to the beit din (whether or not they will agree is not our issue), but it is not one that disqualifies a beit din from adjudicating. He also cannot claim that he wants to adjudicate abroad, since the affairs that the case revolves around took place in Israel (based on Rashdam, CM 103).

However, since the affairs took place in Yerushalayim and the court that began to hear the case was in Tel Aviv, the beit din did not have the authority to be considered the representative of the populace for this matter. Therefore, unless the matter will be put before the set beit din in Yerushalayim, def will be entitled to have the case heard by a zabla court.

 

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Dedication

This week’s Hemdat Yamim is dedicated in loving memory of

R' Meir ben
Yechezkel Shraga Brachfeld
o.b.m 

Hemdat Yamim is endowed by
Les & Ethel Sutker of Chicago, Illinois in loving memory of
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