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Shabbat Parashat Masei 5771

P'ninat Mishpat: Initiating a Din Torah Against the Plaintiffs Will

(condensed from Shurat Hadin, vol. VIII, pp. 78-85)

There are times when a potential defendant asks beit din to adjudicate a dispute when the potential plaintiff, who normally initiates these matters, is not interested in adjudication at the time or place. One common case is when a husband asks beit din to set the amount of child or spousal support before the wife asks for it because of his expectation that she will later sue him in secular court. There was a case in 5730 where the regional court refused to get involved in such a case, but the Supreme Rabbinical Court required them to do so. This article discusses sources the two batei din cited, as well as other sources.

If Reuven demanded wheat and Shimon denied the wheat but admitted to owing barley and Reuven then grabbed the barley, beit din does not take away the barley from Reuven. The regional court cited a Ramban who explained the halacha as follows. Since Shimon admitted that he owes barley, he is not demanding it back, and beit din does not get involved when no one makes a claim. However, this is a weak proof because that is referring to a case where no one (including Reuven) initiated a hearing, but here the husband is doing so.

Several sources justify the defendant’s right to initiate a din Torah. The Chacham Tzvi (169) spoke about two communities with a shared claim against a third community, but only one of them wanted to make the claim at the time. He accepted the defendant community’s claim that they did not want to deal with the same claim twice. That which Teshuvot Maimoniot says that one partner can make a claim against someone without the other is only when the second partner has gone far away and we have no idea what he will do if he returns. However, in a case where the two claimants are here, the defendant may refuse to appear until the second plaintiff appears. Although the Chazon Ish finds it difficult that one can force someone to make a claim, it makes sense when not doing so causes damages to another.

The Rama (Choshen Mishpat 24:1) says that if a plaintiff says that he has many claims but does not want to make them now, we do not force him to make his claims unless it lowers the defendant’s property value (i.e., people do not want to do business with someone whom they believe is in great debt). The S’ma (ad loc. 12) says that the defendant can demand to adjudicate unless there is another way to alleviate the damage stemming from the suspicions.

The Pa’amonei Zahav uses the Rama to prevent misuse of the judicial system in the following case. People have claims against a certain man who needs to travel on business. Instead of making the claims in a timely fashion, they want to wait until right before his trip to sue and thereby pressure him because of his need to travel.

Therefore, in a case where our refusal to adjudicate will cause damage to the potential defendant, most, if not all, poskim agree we should allow him to initiate litigation.

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This edition of
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