THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean Lesson #35 - Venue of the Trial Venue means in which Beth Din shall the trial be held. That is, if there are several possible places where the trial can be held, where should it be held?
Under post-Talmudic law there was a three-tiered Beth Din system regarding venue. (This is not to be confused with the three types of courts, described in the opening lessons, namely the Great Sanhedrin, the Lesser Sanhedrin and the Beth Din.)
(1) There was the local Beth Din composed of judges of the community.
(2) There was a Beth Din that comprised reputed expert judges, known as a Beth Vaad, in major cities only.
(3) The most scholarly Beth Din in the Land of Israel was known as Beth Din Hagadol.
This three-tiered Beth Din system does not exist any longer. Over the generations, especially where the Jews have been harassed and persecuted, the niceties of venue and other trappings of a Divine justice system could not always be implemented. Baruch Hashem, in many of the countries where we now reside, a Jewish system of justice is no longer theoretical or resorted to only by Talmudic scholars, but is becoming more and more in vogue among Jews, many of whom are what might be called removed from Torah observance.
If both the plaintiff and defendant reside in the same community that has a Beth Din, and the parties are not availing themselves of selecting judges as discussed in the last lesson, the trial must be held in the Beth Din in the community where they both reside. Neither party may demand that the trial take place in another community, even if the later Beth Din is known to be superior in leaning to the local Beth Din.
If the trial is commenced in a city other than where both parties reside either party may insist that the trail be held in the Beth Din of the community where they both reside.
If a resident plaintiff serves a summons upon a nonresident defendant in the plaintiff's city, then the trial will be held there.
If the plaintiff is unable to serve the summons on the defendant in the plaintiff's city, then the plaintiff must initiate the summons in the defendant's city and the trial will be held there. The defendant may waive the provision made for his benefit to have the venue in his city and insist that the trial take place in the plaintiff's city. Or if the plaintiff is afraid to come to the defendant's city, then the Beth Din in the plaintiff's city may request that the trial be held there. An example would be if the plaintiff is afraid of being arrested in the defendant's city for a matter unrelated to the trail. The trial is held in the defendant's city even if the plaintiff states that he would pay the expenses of the defendant's coming to the plaintiff's city. The burden of going to the plaintiff's Beth Din may be an equally great objection to the defendant.
If the plaintiff finds that the defendant owns real estate in the plaintiff's city, the property may be attached as stated in Shulhan Aruch Hoshen haMishpat chapter 73, (See Restatement of Rabbinic Civil Law, Volume III, page 287) and then the trial will take place in the plaintiff's city. The attachment consists of the Beth Din officer seizing assets of the defendant to insure that he will show up at the trial. If the plaintiff did attach the defendant's real estate in the city where the Beth Din operates, the plaintiff must immediately notify the defendant and the trial will be held in the plaintiff's city. (If the plaintiff finds in another city real estate belonging to the defendant and the Beth Din of that city attaches the defendant's real estate, then the trial should be held in that other city.)
If the transaction that gives rise to the trail began in the plaintiff's city, or if both parties resided in the plaintiff's city when the transaction began, the trial must be held there.
The aforesaid rules do not apply in the following situations:
1. If a parent and his child are in litigation, then the trial is held in the parent's city even if the child is the plaintiff. The trial is held in the parent's city even if the law is more favorable to the parent there. Sometimes through local custom the law may favor a plaintiff or a defendant. The parent must pay expenses for the son to have the trial in the parent's city.
2. If a rabbi and his disciple are in litigation, then the trial is held in the rabbi's city even if the disciple is the plaintiff. This applies only if the relationship between the rabbi and his disciple is a special one. For example, it would apply if the disciple feels that the rabbi was his main teacher and is the rabbi to whom the disciple always turns for advice. This exception does not apply to a Sage and an unlearned person who are in litigation against each other.
3. The exceptions do not apply if the husband and wife are in litigation against each other.
4. If ether litigant is a very powerful or influential person in the city and the local judges fear him, then the trial is moved to a place where he is not feared.
5. If either litigant is highly respected by the members of the community, then the judges will decide in each case if there can be a fair trial or if the venue for the trial should be changed.
The parties may agree between themselves upon the venue for their trial. Unless the Beth Din that they have selected finds cogent reason not to judge their case, their agreement should be followed. The parties may agree between themselves that instead of a trail they will jointly send their pleadings to a Beth Din or sage for decision, whether they are in that city or elsewhere. The sending of pleas to a sage or the Beth Din is not related to a similar sending of pleas by the Beth Din to a Beth Din Hashuv (a sort of Superior Court) or great Sage when the Beth Din is not sure of the law. In the latter situation the local Beth Din makes the decision after consulting with a superior court or sage; in the former situation the Beth Din Hashuv makes the decision.
The parties may agree between themselves that the case be judged according to the procedure discussed in the last lesson whereby each party selects one judge and those two select the third judge.
The parties may agree between themselves that the case be judged by one or more persons whom they have selected.
The subject matter of this lesson is more fully discussed in Vol. 1, Ch. 14, of A Restatement of Rabbinic Civil Law by E. Quint - on sale at local bookstores. Address comments to quint@inter.net.il
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