Shabbat Parashat Yitro 5785

P'ninat Mishpat: Unpaid Fees of a No-Show to Beit Din

Case: The plaintiff (=pl) gave professional services to the defendant (=def) on multiple occasions. Def paid for many of those sessions. But toward the end of their relationship, pl claims that def stopped paying. To that end, pl is suing def for 3,850 NIS. Def signed beit din’s arbitration agreement and was scheduled to take part in a hearing which the two sides preferred would be done by Zoom. Def did not join the meeting and claimed to the beit din secretary later that he was unable to connect. After additional weeks and warnings, trying to get def to take part in proceedings, beit din ruled based on the information available to it. Pl had sent to beit din a line-by-line record of the sessions with def and also electronic messages in which he demanded payment at different intervals, and def’s responses.

Ruling: The signing of an arbitration agreement is considered a kinyan to obligate oneself in the jurisdiction and practices of the beit din. Although in this case, def signed only electronically, this is binding based on kinyan situmta (a society’s accepted practices for agreements – Shulchan Aruch, Choshen Mishpat 201:1). Par. 11 of our arbitration agreement states that if a side is improperly absent at the hearing, beit din is authorized to rule based on what the other side said in his absence. In such cases, our beit din follows the Law of Arbitration, par. 15b, which states that the other side has thirty days after the ruling to respond, along with explaining why he did not respond earlier.

Regarding the evidence, in the several Whatsapps about the missing payment, def never questioned his obligation to pay. Rather, in some messages he said he was about to pay, and in others he asked for payment plans and/or apologized. In our experience, litigants almost never claim that electronic messages are forged, and it is something that can be checked.

In a case where one comes to beit din and refuses to speak, the Shulchan Aruch (CM 15:4) says that if beit din feels that the lack of response is deceptive, it can obligate him. The Tumim (80, Urim 9) says that one who comes to beit din and does not respond can be seen as one who admits to the other’s claim because he cannot claim that he did not yet have time to formulate a response. While def was not silent in front of beit din, his lack of response when he was repeatedly warned that beit din would rule if he did not come can be seen as equivalent. Based on all the above, beit din required def to pay the full 3,850 NIS claim.

Pl asked for legal expenses from pl including for missing the hearing, for which beit din is authorized to charge. Because def did not cooperate with the process, he has to pay pl the full beit din fee of 400 NIS, but we will not charge for the missed Zoom hearing, as we do not have strong indications that it caused a loss to pl.  

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