THE JERUSALEM INSTITUTE OF JEWISH LAW Rabbi Emanuel Quint, Dean In all of the books and articles that I have written about Jewish Civil Law, one of the most difficult concepts has been that of introducing laws of default judgments. That is, if the defendant in a lawsuit fails to appear in Beth Din in response to the summons that was served upon him to appear, what can be done to the defendant if he fails to appear? The halachah has some remedies, but the plaintiff may not find them to be adequate.
This lesson, and the following one explore some of the remedies that Beth Din may impose if the defendant fails to appear before Beth Din in response to receiving a summons to appear. An innovative feature that I introduced in one of my books (See A Restatement of Rabbinic Civil Law, Volume I, page 75) was the concept of a default judgment. Such a concept is mentioned fleetingly in some halachic writings, but was not a serious concept relied upon by the halachah codes.
As seen in chapters 11 and 26 of Shulhan Aruch Hoshen haMishpat, if the defendant fails to appear after being served with a summons, the Beth Din has two options. It may place the defendant under a ban and/or it may under certain conditions permit the plaintiff to pursue his remedy in the secular courts. (Under ordinary circumstances, invocation of the jurisdiction of the secular courts is prohibited. See Hoshen haMishpat chapter 26.)
In chapter 13 of Hoshen haMishpat it states: "...it is required that the litigants be present
before the Beth Din." In chapter 18 it states: "The Beth Din may render its decision in monetary matters in the absence of the litigants." These two laws seem to contradict each other; the former requires the presence of the litigants, while the latter permits the rendering of the decision in their absence. The great classical commentaries on Shulhan Aruch Hoshen haMishpat, Rabbi Joshua Falk (Poland, 1555-1614) in Sefer Meiroth Ainayim (Sma) and Rabbi Shabtai Cohen (Vilna and Germany, 1622-1663) in Siftei Cohen (Schach) hold that the latter law merely permits the rendering of a decision in the absence of the litigants after they have already appeared in beth din and presented their pleas and evidence. According to this view there can be no default judgment based on the failure of the defendant to appear in response to a summons.
Rabbi Joel Sirkis (Poland, 1570-1641) in Bayit Chadash (Bach) in his commentary on Tur Hoshen haMishpat states that the apparent contradiction in the statements need not be reconciled. Rather, he states that if the defendant is available he should be served with the summons, and this is the first instance procedure. If, however, the defendant is beyond the reach of the beth din, then the law becomes post facto, and the case may be heard post facto by beth din even if the defendant has not appeared. Rabbi Yonathan Eybeschutz (Poland and Germany, 1690-1764) in his Tummim cites Rabbi Sirkis and agrees that in the first instance the defendant should be required to appear, but if he does not appear, then the case can proceed without him. Rabbi Aryeh Leib Heller (Poland, 1745-1813) in his K'zoth cites the views of both Rabbis Falk and Sirkis and concludes that the view of Rabbi Sirkis is preferable. Where it is not practical to serve the defendant, it is as if the law has entered into the post facto stage and the beth din may proceed to judge the case even if the defendant has not appeared.
Rabbi Moses Schick (Hungary, 1807-1879) in a responsum had this question presented to him when a town had passed a decree permitting its Beth Din to render default judgments if the defendant failed to appear pursuant to a summons served upon him. Citing the holdings of Rabbis Falk and Rabbi Cohen on the one side, and the holdings of Rabbi Sirkis and Rabbi Heller on the other side, he adduces various proofs that had been used to support the decree; he then concludes that all of these proofs are inadequate for the proposition that the Beth Din may render a default judgment. He concludes, however, that a default judgment may be permitted under the law as stated in Hoshen haMishpat, chapter 2, that is under the exigency powers of the Beth Din. (See Lessons 15 and 16, Torah Tidbits #393 and 394.) This was the first specific breakthrough in a particular decree permitting default judgments.
The Beth Din system in the State of Israel, as established by the Knesset, has the following rule: "Rule 92: If the plaintiff appeared and the defendant failed to appear, after being summoned, the Beth Din may, on the basis of the clarity of the complaint, decide in favor of the plaintiff in the absence of the defendant and render judgment, or postpone the sitting of the Beth Din to another day."
The source given for this law is the holding of Rabbi Heller in his Sefer K'zoth.
In view of the fact that Rabbis Sirkis, Eybeschutz, Heller, Schick, and the Israeli Beth Din permit this procedure, is what I have advocated regarding default judgments a new concept? According to the statements of Rabbis Sirkis, Eybeschutz, and Heller, the procedure for a default judgment is only post facto or in cases that are treated as post facto; thus there may be many cases where a default judgment is not applicable. The holding of Rabbi Schick is also limited to those situations where an emergency situation exists, and thus Beth Din will have to declare such an emergency before it can invoke the procedure. As for the rule of the Beth Din system in Israel, I think that there may be a special reason for it. Under Israeli law the Beth Din is given the exclusive jurisdiction over certain personal matters, including marriage and divorce. The remedy of granting the plaintiff permission to invoke the secular courts based on the defendant's non-appearance will not benefit the plaintiff in any way, since the secular courts do not have jurisdiction in those matters over which the Beth Din has exclusive jurisdiction. Thus the secular courts will send the case back to the Beth Din, that has just given the plaintiff the right to sue in the secular court. Therefore, the case of the Israeli Beth Din may be unique because of the exclusive jurisdiction of the Beth Din in matters over which the secular courts have no jurisdiction.
This subject of default judgments shall be continued IYH in the next lesson.
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.
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