Shabbat Parashat Vayakhel Pekudei 5786

P'ninat Mishpat: How Many Dayanim?

Case: The plaintiffs (=pl) and the defendants (=def) are partners in a building project. They and others signed a partnership agreement. Par. 15 of that agreement states that if conflict resolution is needed, they will adjudicate using a single arbitrator chosen by the steering committee. Conflict arose and the steering committee was disbanded due to dispute about who it should consist of. Then, the sides signed an agreement, in which par. 13 sets the agreed arbitrator as the Beit Din of Eretz Hemdah. Pl want to have only one dayan of Eretz Hemdah adjudicate, whereas def want to have three.  

Ruling: [Beit din had expressed that it prefers three dayanim because of the complexity of the case and sat in this pre-adjudication tribunal with dayan 1 functioning as the one dayan and in the meantime the other two serving as legal assistants. Beit din also consulted with legal experts on arbitration law.]  

The general rule is that an arbitrator has no authority to decide on the extent of his own authority, thus rendering this ruling potentially problematic. However, the sides all signed Eretz Hemdah’s arbitration agreement, and par. 12 therein says that beit din is authorized to set the “boundaries of the agreements within the arbitration agreement and the rules and procedures.” This is binding since both sides agree that Eretz Hemdah has jurisdiction, and the dispute is just about the number of dayanim.

Even though having three dayanim is preferable in various ways, when a binding decision is made on the number of dayanim, one cannot change that number (see Rama, Choshen Mishpat 13:1-2). Our legal advice also posited that it is highly problematic to change from the arbitration agreement of the sides.

Based on this backdrop, it is best to reconcile the two agreements, so that there not be a contradiction between them (see Shut Harosh 68:14; Shulchan Aruch, CM 42:9). This leads toward an understanding that the clear clause in agreement #1 that one dayan will rule continues into agreement #2. Agreement #2, which states that the Beit Din of Eretz Hemdah will adjudicate, arguably adds two things – a decision on which beit din it will be; an implication that it is a beit din, which is classically three dayanim. However, Beit Din of Eretz Hemdah can also be understood as any size tribunal as long as it is under the umbrella of Eretz Hemdah. In that way, agreement #2 adds information onto what already existed in #1. There are also communications from def that indicate that they still saw par. 15 of agreement #1 as binding. This was also indicated in handwritten additions to the Eretz Hemdah arbitration agreement, which was signed after agreement #2 was made.

Therefore, one dayan will serve as the one and only dayan, whereas another of those who were prepared to be dayanim will assist as a research assistant for this complicated case. [The director of the Eretz Hemdah-Gazit beit din network also signed on the ruling on this semi-administrative matter.]

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