Shabbat Parashat Beshalach 5780

P'ninat Mishpat: Expanding One’s Claims

Case: The plaintiff (=pl) sent a k’tav tvi’ah (claim sheet) to beit din, who sent it to the defendant (=def), on 13/02/17. Pl sent an updated k’tav tvi’ah on 23/04/17, with a few additions. The first hearing was on 08/06/17. At the second hearing, on 30/10/17, def complained that the claims had been changed, arguing that this may not be done.

Ruling: The authority of an arbitrator (including a rabbinic one, like our beit din) is a product of the agreement of the sides. In this case, the sides had a contract whose adjudication clause stated that they would go to a rabbi for all disputes and he would not be limited by Israeli law, neither regarding content nor procedure. When the sides decided on our beit din, they signed our arbitration agreement. One of the clauses of that agreement gives beit din the ability to adjudicate

on all elements of the dispute, including those that will arise during the course of the adjudication. Therefore, beit din has the authority to incorporate claims that were not found in the opening k’tav tvi’ah.

What does Halacha have to say about changing claims? If a litigant justified his position with a certain claim that ostensibly is one with which he can win the judgment, he can switch to another claim which also can win the judgment (Shulchan Aruch, Choshen Mishpat 80:1). If the first claim would cause him to lose the judgment, he cannot switch from it to another, winning claim. In the former case, he does not have to explain why he changed his claim, and he can even make the change after leaving beit din. However, this change is possible only if the claims were presented orally, but if either the litigant or beit din wrote them down, he cannot switch to a different claim (Rama ad loc. 2). The logic behind the distinction is that one is more careful in being exact when the claim is being committed to writing (Rashba, Bava Batra 31a). Therefore, it appears likely that the newly claimed facts are false.

While the last point seems to support def, it actually does not because pl did not retract one set of claimed facts and replace it with another. Rather, he added additional arguments and increased the monetary claims based on the original facts that he had presented. Halacha does not preclude this.

We are not bound by civil law on this point, but we will demonstrate that allowing the new k’tav tvi’ah is not included in the restrictions on harchavat chazit (lit., the broadening of the battlefield). Seder Din Ezrachi, provisions 91-92, allows adding onto the claims presented in the k’tav tvi’ah only with the approval of the court or the permission of the other litigant. However, legal literature indicates that this is on technical grounds because changing or adding onto the claims impairs the other litigant’s ability to prepare his defense. In this case, the new k’tav tvi’ah was presented well before the first hearing, so that there was plenty of time for def to prepare. Secondly, the changes do not alter the story significantly, but were mainly just a request for more money and actions based on the same basic set of facts.

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