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Shabbat Parashat Eikev 5773

P'ninat Mishpat: Judging a Non-participant

(based on and article by Rav Ido Rechnitz in Mador Tzedek of Makor Rishon)

A couple was married for 34 years, during 12 of which they lived in Europe. The husband dealt with all major financial matters, including the buying and selling of real estate. The family was living in Israel, when the husband decided to abandon his wife and return to their European community, where he is still a key player in the Jewish community. Upon a visit to Israel, he was prevented from leaving the country as one who is making his wife an aguna. This status was lifted when he gave a get and obligated himself, putting up a 50,000 shekel guarantee that he would return to Israel to adjudicate the monetary issues.

The wife is demanding $175,000, half of the proceeds of the sale of their joint house in Europe. However, he has refused to return to adjudicate, with the claim that an inner ear problem prevents him from flying. The wife proved that in the meantime his ear was good enough to fly to America. His lawyer now says that he is afraid of having his freedom to leave the country withheld again. In addition to not coming for adjudication, he also has not sent the paperwork on his financial holdings, which he was required by beit din to provide. This he explains with the claim that his bank went bankrupt. Beit din has to decide on how to adjudicate when one side is not appearing or otherwise cooperating.

The gemara (Shvuot 30a), dealing with a case where a plaintiff brings witnesses to support him but the dayanim feel that there is deception involved, says that beit din cannot rule based on a lie, even if it is a winning case from a formalistic perspective. The Rambam (Sanhedrin 24:3) says that in this case, the dayan who is suspicious should opt out of the case and let someone else sit. The Rosh (Sanhedrin 4:1) distinguishes between cases where the suspected litigant is the plaintiff, in which case not adjudicating is logical, and a case where the defendant is suspected, in which case, not ruling is to his advantage. The Rosh (Shut 107:6) extends the concept to a defendant who refuses to answer beit din’s questions. He rules that beit din should treat the matter as if he made the statements that beit din intuits that he is hiding. Beit din posits that if the defendant is not even willing to show up, the Rambam agrees to listen to the case presented by the plaintiff to see if it is convincing. Both the rabbinical and general court systems do not accept fear of being prevented from leaving the country as an excuse for not adjudicating. The rules of the Rabbinical Courts also do not accept the representation of a lawyer as a valid substitute when it does deem it to be innately equivalent.

Therefore, beit din obligates the husband to give the wife $175,000 plus court expenses.

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