By Raphael Grunfeld, June 1, 2009
If you can’t handle rejection, don’t become a sales person and don’t become a process server. You might get cursed or attacked and if you’re lucky, just ignored.
A plaintiff, who wishes to take a defendant to Beth Din, (a Jewish Court of law) over a monetary dispute, will request the Beth Din to send out a process server to hand the defendant a summons to appear in Beth Din on a certain date. If after three attempts of the process server, the defendant still refuses to show, or does not request an adjournment, the Beth Din has the power to excommunicate him. The Beth Din may also use its powers of excommunication if the defendant shows up in Beth Din and tells the judges that he does not accept their authority.
If the plaintiff lives in Chicago and the defendant lives in New York, the plaintiff may not summons the defendant to the Beth Din in Chicago but only to the Beth Din in New York. If, however, the defendant has assets in Chicago which the plaintiff freezes, the defendant must come to the Beth Din in Chicago.
Of course, only a Beth Din, which is competent to judge monetary matters, has these powers of excommunication. In order to be competent, the Beth Din must have a quorum of three judges but there is no requirement that they be ordained judges. One of these judges, however, must be well versed in Jewish Business laws (Choshen Mishpat), able to reason and apply the law to different sets of facts. A single non-ordained judge might also constitute a competent Beth Din if he has earned a reputation of an experienced judge who has successfully tried many cases.
What if the court is validly constituted but the defendant believes that the judges, who all live in the plaintiff’s community in, will not give him his fair day in court? Can he move to disqualify the judges? He cannot if the Beth Din is a permanent Beth Din in that town but he can if it is not. If the plaintiff has chosen the Beth Din, the defendant can object. He may request a Beth Din of three mutually acceptable judges. If the plaintiff and defendant cannot come up with the names of three mutually accepted judges, then each appoints a judge of their own choice and the two judges then appoint a third judge.
The defendant is not obliged to obey the summons to Beth Din if the plaintiff refuses to tell him why he is taking him to court. The defendant may ignore such a summons and argue that if he were only told what it was all about, he might agree to pay or settle out of court. So why waste his time dragging him to court?
The summons has to be delivered to the defendant personally. It cannot be handed to a spouse or to other members of the defendant’s household. However, if the defendant is known to leave town daily on business and return home each night after business hours and does not pass by the Beth Din en route, the summons may effectively be given to members of his household.
The excommunication order against a recalcitrant litigant can be oral or in writing. It will be oral if there is only one witness to the defendant’s recalcitrance and it will be in writing if there are two. The excommunication order will not be withdrawn just because the defendant promises to come to the Beth Din. It will only be withdrawn when he actually comes.
Generally, the litigants must show up in court personally and their arguments must be presented orally. Only if both parties agree, can the arguments be presented to the court in writing and even then, the court has the power to summons them for oral arguments if needed to clarify a situation.
Contemporary Batei Din allow the litigants to appoint attorneys to plead for them, but reserve the right to summons them to court personally, if necessary.
Raphael Grunfeld’s book, Ner Eyal on Seder Moed is available now at OU.org and at your local Judaic bookstore. His new book, Ner Eyal on Seder Nashim & Nezikin will be available shortly. Yuo can reach Raphael at firstname.lastname@example.org.