Shabbat Parashat Emor 5778

P'ninat Mishpat: Lack of Participation

Case: The plaintiffs (=pl) sued the defendants (=def) in our beit din. They sent a claim sheet stating that they bought an apartment, including paying for it and moving in years ago, but def have refused to have their ownership registered. (The apartment is in a neighborhood in which individual ownership is not registered in the Tabu; owners are members of a group ownership of the land). The sales contract between the sides states that all adjudication related to the sale will be at Eretz Hemdah. The claim sheet was sent by registered mail to def, and someone who called and presented himself as one of its members asked for information about the beit din. After a period in which beit din received no correspondence from def, beit din set a date for a hearing. The beit din secretary called the listed number of def’s main member multiple times and left messages about the hearing with a wife and a daughter. On the day of the hearing, someone who identified himself as def called to say he would not take part and that beit din could not rule in his absence. Pl came to the hearing and asked that beit din rule without hearing def’s claims and charge for legal expenses.   

Ruling: When beit din is presented with an authentic-looking arbitration agreement or clause in a contract which sets it as the arbitrator, it assumes that it is indeed charged to act as such. If one of the sides questions the appointment’s legitimacy, beit din is not authorized to decide the matter; by law, the decision is made by the regional court. Unless and until def turns to the regional court with a complaint, beit din will assume it has authority. What is beit din to do when def is unwilling to come and present their case?

Acharonim debate to what extent beit din is prevented from ruling without hearing one of the sides. According to the Bach (CM 13:8), Tumim (13:4), and K’tzot Hachoshen (13:1), under certain circumstances it is possible to hear the case from one side. According to the S’ma (18:13), Shach (CM 13:8) and Netivot Hamishpat (Chiddushim 13:8) it is never possible to do so.

Classically, when one refuses to come to beit din, he is to be put in niduy. But since we cannot do niduy in our times and there is little beit din can do to force someone to adjudicate even if he committed himself to that beit din, the question of adjudication in abstentia resurfaced.

Our mentor Rav Z.N. Goldberg ruled that one may rule under such circumstances in abstentia, just as at times it is possible to accept witnesses not in front of a litigant (Rama, CM 28:16). The sides’ contract states that Eretz Hemdah will rule according to din Torah, which nowadays includes peshara, and this allows beit din to rely on opinions such as that of Rav Goldberg. Therefore, we have the right to rule even if def does not come.

The refusal of def to come to adjudicate caused pl damage. As of now, we obligate def to pay 2,000 shekels for not coming to the hearing. We give def the opportunity to come and claim that their missing the hearing was justified. In the meantime, pl should provide evidence to support their claim, and if def does not contact beit din to arrange another hearing, beit din may rule based on the evidence that pl presents.

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