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Shabbat Sukkot 5774

P'ninat Mishpat: Court Expenses for One Reluctant to Adjudicate

(based around Shut HaRivash 475)

[The Rivash, Rav Yitzchak bar Sheshet, was born in Spain in 1326. He studied there under Rav Peretz Hakohen and Rabbeinu Nissim (the Ran). After being a scholarly businessman for most of his life, he took up the rabbinate, only to have to flee Spain due to the persecution of the Jews. He settled in Algeria, but was caught up in communal political opposition to his appointment as rabbi. He died in Algeria in approximately 1408. His surviving work is his collection of responsa, which are quoted prominently by many, including the Beit Yosef.]


The Rivash was asked to help decide the ruling regarding a chazan who refused to pay taxes because he said that the community had exempted him. [The details of the case and the answer are beyond our present scope, and we will focus on the end of the responsum, where he discusses the payment of expenses by the litigants, including sending an emissary to deliver the question to the Rivash and receive his written response.]

You should know that the sides share equally the expense of the scribe who records the litigants’ claims. This is seen from Bava Batra (167b), which says that one can write a document of clarification and an act of beit din only with the permission of both sides and that they share the expenses. The gemara (ibid. 168a) says that these documents are a record of the claims and the court’s ruling, respectively.

The same is true for all expenses related to adjudication, irrespective of who wins the case. We see this also from the gemara (Sanhedrin 31b), which discusses a disagreement over whether or not the litigants should travel to a distant place to adjudicate before a distinguished court. The gemara mentions the argument that it cannot be that someone who lent another person 100 zuz should have to spend 100 zuz to recover it. This implies that he would not be reimbursed even if he won the case. When we accept the opinion that they adjudicate locally and the local court can send their halachic dilemmas to outside experts, it follows that the expenses of sending that query are also to be split equally. This is certainly the case regarding a dayan who has to take off from his regular job to adjudicate, where the expense of reimbursing him is on both sides. Only if a defendant refuses to adjudicate and expenses were needed to coerce him, then those expenses are upon the defendant alone who caused them, if the defendant lost the case.


[It is the end of the Rivash, where he mentioned the case where the expenses are not shared equally, which is of interest and is cited by the Beit Yosef (Choshen Mishpat 14) and others. The Rivash in #222 says that the reluctant defendant has to pay the expenses to force him and he does not make the matter conditional on the defendant's losing the case. See Piskei Din Rabbaniim III, pg. 24 which discusses opinions on this point. The possibility of paying even if the difficult defendant won the case is only when it is clear that the plaintiff’s losing case was at least a reasonable one, worthy of beit din’s consideration.]


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