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Shabbat Parashat Bamidbar| 5771

P'ninat Mishpat: Place of Adjudication

(condensed from Shurat Hadin, vol. VII, pp. 461-462)

Case: The litigants are a Hassidic group, based in Beit Shemesh (def), and a rabbi who works for the Israeli Rabbinate (pl). It is a matter of dispute who is the plaintiff and who is the defendant. This is significant in this case, where the immediate point of contention is the venue of adjudication and the rule is that the defendant has the main prerogative in choosing the beit din to hear the matter. Pl originally sued def in secular court, and def countered through the Israeli Rabbinate’s regional courts in Yerushalayim. Pl, claiming to be the defendant, wants the matter adjudicated at the Badatz (Rabbinical Court) of the Eida Charedit of Yerushalayim, which represents part of the city’s Ultra-Orthodox, non-Zionist populace.    

 

Ruling: The question of who is the real defendant, which affects the decision on rights of adjudication, depends on some of the particulars of the dispute and must be heard before the preliminary decision. There is a “catch 22” here. Pl does not want to sign an arbitration agreement at the Rabbanut because he does not want to adjudicate there. Beit din does not hear cases before an arbitration agreement is signed. It would be an affront to it to hear the arguments, decide that pl must adjudicate before them, and then not be able to enforce it because pl rejects their jurisdiction. In this case, pl must sign an arbitration agreement or be declared one who refuses to come to beit din.

There are other reasons for the Rabbanut’s regional court in Yerushalayim to have jurisdiction (in addition to the fact that one of the sides has a complicated relationship with the Badatz). The Rabbanut’s courts are a continuation of the concept of the court of the mara d’atra (local rabbinical leader). The dayanim are chosen by representatives of the public, and the great majority of those choosing are G-d-fearing Jews. The various private courts, including the Badatz with all of its Torah scholarship, represent only small segments of society. It is inconceivable that they and not the governmental courts be able to compel sides to appear before it. It is true that when the Rabbanut courts see that the defendant is a clear member of the Badatz constituency, it respects his desire to adjudicate there, but that does not apply here for a few reasons. The Badatz of the Eida Charedit is the court of a group that was recognized as separate from the rest of the community from the time of the British Mandate, but only in Yerushalayim. In the rest of the country there is only one official rav [each, for Ashkenziam and Sephardim] and one Religious Council. Since def is from Beit Shemesh, which belongs to the Jerusalem Region at the Rabbanut, whereas the Eida Charedit does not function in Beit Shemesh, def is not bound by them. Furthermore, since pl serves as a rabbi within the Rabbanut system, he cannot say that he accepts the Badatz’s, not the Rabbanut’s, jurisdiction.

Therefore, the case will be heard in the Rabbanut’s court in Yerushalayim.

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Hemdat Yamim

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