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Shabbat Parashat Teruma 5784

Parashat Hashavua: On Justice and the Right of Appeal part III

Harav Yosef Carmel

We will now discuss the roots in Halacha of the practice of appealing beit din rulings.

The Torah discusses the Yitro-Moshe plan, which includes judges of thousands, of hundreds, of fifties, and of tens (Shemot 18:21). The Seforno explains that one would start with the “lower court,” and if he was unhappy with the ruling, he would appeal to the court above it, and in the rare cases that went higher than that, it could go all the way to Moshe.

The Malbim raises the possibility that we can learn the concept of appeals courts from Yitro and Moshe, but he is skeptical that an appeal is a Torah-level law because of the competing concept (see Bava Batra 138b) that “beit din does not look into the rulings of another beit din.” Rishonim (ad loc.) explain that we are to assume that the first beit din was correct in their ruling. The Malbim insinuates that it is possible that according to Torah law, one could appeal, and it is the Rabbis who closed off that possibility to prevent dragging out a case indefinitely. However, we do not find this approach in Rishonim; rather, there is a possibility of appeal, as we shall see.

The Maharam of Rutenberg (an important, early Ashkenazi Rishon with responsa) was asked about appeals (Shut 715). He says that we do not find an injunction against appealing, and, to the contrary, it was a common occurrence, at least in his time. We can suggest a proof for this approach from the following gemara (Sanhedrin 31b). Rav Elazar says that if the litigants argue about whether to adjudicate locally or to go out of town (which includes significant traveling expense) to a more expert beit din, they adjudicate locally. However, the one who wanted to go to the experts can require the local beit din to write the legal justification of the ruling. Apparently, the rationale for writing the reasons for the ruling is to enable the disgruntled litigant to go to experts and see if they agree. The Beit Yosf (Choshen Mishpat 14) understands the Rambam similarly. He says that the idea of writing the reasons applies specifically to a “junior court,” so that the more expert court can investigate whether they made a mistake. If, though, a renowned court rendered the ruling, they would not need to cite the rationale.

All agree that if it was agreed in advance that there will be a possibility of appeal, then this is binding. Furthermore, if the original beit din agrees to it, then appeal can be brought. In our days, it apparently is also because we are unwilling to take the stand that we do not believe that our batei din are unlikely to make a mistake.

In Eretz Hemdah’s arbitration agreement, we state explicitly that the presumed situation is that either side can appeal, just that a full appeal process has to be started by a decision of a single av beit din (panel head) who did not sit on the case that there is an apparent mistake in the ruling in question. If so, the two other panel heads join him to decide whether there was a mistake and what should be done about it. This method strikes a good balance between vigilance for the possibility of mistake and avoiding unnecessarily drawn out legal processes. 
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