THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean Because of the reasons that appear in last week's lesson (31), perhaps there should be a rule permitting the Beth Din to grant a default judgment.
The rationale for the suggestion is based on the laws discussed last week in chapters 2 and 18 of Shulhan Aruch Hoshen haMishpat, along with evidence from Rabbis Sirkis, Heller and Schick, and the Israeli Beth Din system.
There are also a few other factors that point in the direction of permitting default judgments, none of which, taken by themselves, are necessarily conclusive, but when taken together and in combination with the statements of the aforementioned authorities may support this conclusion.
The law is that Beth Din may not hear the pleas of the plaintiff or his witnesses unless the defendant is present in Beth Din. As is seen in chapter 28 of Hoshen haMishpat, however, there are exceptions to this law. An exception may be made, for example, if the litigant is ill, if the witnesses are ill, if the witnesses are about to depart for a foreign country, or if the witnesses are in another city and the other litigant does not wish to go to that city to hear their testimony. Thus there are procedural exceptions even in situations that seem to be ironclad.
As noted in chapter 124 of Hoshen haMishpat, there are exceptions that permit a sage or a modest woman to have his or her pleadings taken by a written deposition. In chapter 106 it is stated that an authenticated instrument of debt may be enforced even in the absence of the debtor being sued. In chapter 13 it is stated that a potential litigant may state his case to a person whom he wants to be one of the judges, even though it is not permissible to discuss the case with a judge before the case starts because a judge may only hear the pleas of the litigants in the presence of the other litigant. In chapter 46 it is stated that a creditor may have his note of indebtedness authenticated even if the debtor is not present. Rabbi Yehiel Epstein (Russia, 1829-1909) in his Aruch haShulhan, chapter 26, paragraph 2, states that if the defendant does not appear at the Beth Din in response to a summons, the Beth Din may grant permission for the plaintiff to invoke the jurisdiction of he Gentile courts. Before doing so, however, the plaintiff would have to prove to the Beth Din that he had a prima facie case. He could do this by documentation or, if that was not possible, by producing proof and witnesses to Beth Din. Thus this is another instance in which the Beth Din will hear a plaintiff's case without the defendant having appeared. (The difference is that if a default judgment were available, the Beth Din could grant judgment on the basis of the prima facie showing, without having to send the litigants to the Gentile courts.)
Clearly, then, the idea of instituting a policy of permitting default judgments is consistent with other exceptions. The ban imposed on the defendant often does not serve as an adequate deterrent. In addition, the plaintiff may be given permission to pursue a remedy in a secular court. This policy presupposes that the halachic judicial system is powerless to act and relegates its enforcement authority by turning the recalcitrant defendant over to secular authorities (which is exactly where a defendant who would defy the summons of a Beth Din might want to be.) Most important, it presupposes a system that can function only in a secular society that has secular courts with power over defendants. The halachic system is designed for a functioning Jewish society in which the reign of halachah is complete and there is no necessity for secular courts. Thus the threat of being sent to secular courts is not significant in the ideal halachah system. For these reasons, the entire concept of default judgments should be examined to determine whether it should be made available to Beth Din.
Some may argue that if the defendant does not care about being placed under a ban, he will not be concerned about a default judgment. However, many people are more concerned about their reputations in commerce than they are concerned about their spiritual reputations. Moreover, the concept of default judgment would be part of the judicial system wherein the Beth Din would be a functioning body in a society in which it would be able to enforce its judgments and decrees.
It seems to me that based on the foregoing, the seven selectmen of the community should have the authority to issue a decree that if a defendant fails to appear in Beth Din after being served three times with a summons, the Beth Din may enter a default judgment awarding the plaintiff such relief that he sought in his complaint.
In addition to the default judgment power, the Beth Din will still retain the traditional powers of (a) granting permission to the plaintiff to pursue his remedies in the secular courts; and (b) to hold the non-appearing defendant in contempt of the Beth Din. This latter power is exercised if the plaintiff asks the Beth Din to so act. As punishment the defendant is placed under a ban until he purges himself of the contempt charge. Although there are many people who are not affected by being held in contempt of Beth Din and being placed under a ban, there are many others who are affected by the ban. It may affect their religious lives, their social lives and even their economic lives. They would therefore wish to be relieved of the ban and purged of its effects. The defendant should be purged of the contempt if he appears in Beth Din and is ready to proceed with the trial. There are some authorities who hold that his mere promise to appear in Beth Din is sufficient to purge him of contempt of Beth Din. The Beth Din may also impose costs and penalties including the costs to the plaintiff to compel the defendant to appear in Beth Din. The costs should be awarded if the plaintiff wins the lawsuit. If the defendant wins and Beth Din feels that the plaintiff's claims were frivolous, then the plaintiff should not be awarded these costs.
The same should hold true, that the defendant should pay costs for failing to appear and the plaintiff expended moneys suing in the secular courts. The same should hold true if the plaintiff had to invoke the secular courts to enforce a decision of he Beth Din.
The subject matter of this lesson is more fully discussed in Vol. 1, Ch. 11, of A Restatement of Rabbinic Civil Law by E. Quint.
Address comments to quint@inter.net.il
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