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Shabbat Parashat Noach | 5769

Place of Adjudication When the Location of the Defendant Changes

P'ninat Mishpat

(based on Halacha Psuka, vol. 47- A Condensation of a Psak by the Beit Din of Jerusalem, vol. IX, pp. 141-144 )

Case: A man (pl) is a neighbor and shares a roof with an apartment that had been owned by a woman and her children (def) but since had been transferred to the ownership of the children (the woman still lives there). Pl wants to divide the ownership of the roof in order to build on part of it. Def do not want to allow the construction and want to adjudicate the matter in B’er Sheva, where they live. Pl wants the case to be heard in the area of the apartments, where he lives, and points out that his physical frailty makes it difficult to travel to B’er Sheva.

Ruling: The gemara (Sanhedrin 31b) cites a machloket about a case where the plaintiff wants to adjudicate locally, and the defendant wants to go to the beit va’ad (place of eminent experts). It concludes that we follow the request of the lender because a “borrower is a servant to the lender.” Thus, it is the plaintiff who should have more say as to where the case will be heard. It is true that the Rama (Choshen Mishpat 14:1) says that the minhag is that one cannot force a defendant to adjudicate away from his area, and thus usually cases are heard in the defendant’s area. The Gra (CM 14:18, based on Bava Kama 46b) explains that the rationale that a case is usually heard in the defendant’s place is that “one whose teeth hurt should go to a doctor,” meaning that the question is not just who is the plaintiff, but who needs beit din to help have the matter adjudicated.

The Maharival (II, 97) explains that the reason for the practice that the plaintiff adjudicates in the defendant’s city is that the defendant is expected to feel more bound by the authority of the local beit din and accept its rulings. Since the rule is for the plaintiff’s good, if this can be attained specifically in the plaintiff’s place, that is its proper place, as is the case here.

Our case is not a standard one in regards to location. When pl bought his apartment, the potential litigant with whom he would have to deal was the mother. When she transferred her rights to her children, she was, in effect, causing pl to trouble himself to deal with possible litigation in a distant location. This is similar to what the Rama (CM, 73:10) describes, when one borrows money and then moves elsewhere, while leaving behind resources that can be used for payment. In such a case, he says that the defendant has to come to the place where the transaction transpired. This ruling is designed to prevent people from borrowing money and running away to a distant land. Furthermore, since the idea of following the defendant’s location is for the plaintiff’s benefit, in a case like this, where pl’s health makes it difficult to travel, we should revert to the original preference, that the case is heard in the plaintiff’s location.

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This edition of Hemdat Yamim is dedicated to the memory of George Weinstein

Gershon ben Yehudah Mayer, a lover of the Jewish Nation Torah and Land.

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R ' Meir ben Yechezkel Shraga  Brachfeld


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