THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 93 (part 2) • Power of Attorney

In the last chapter there are discussed four requisites for a power of attorney to be effective for the collection of debts. 

Originally, a power of attorney was permitted only in the following cases: (1) Where the principal had a claim for a bailment other than money in the hands of a bailee, and the bailee did not deny that he was holding the bailment. (2) For a deposit of money. If the bailment consisted of a deposit of money, then the power of attorney had to be given together with a transfer of an interest in real estate. This could be done even if the third party denied the debt to the principal. (3) For a return of real estate that the third party is possessed of. This may be done even if the third party denies that the real estate belongs to the principal. (4) A debt evidenced by an instrument of indebtedness. This may be done even if the debtor denies the debt. The power of attorney should state that the attorney-in-fact is assigned all of the liens and rights that accompany the written instrument of indebtedness. 

A power of attorney could not be given: (1) if the claim was for a money debt due to the principal unaccompanied by an instrument of indebtedness; (2) if the principal claimed that there was a chattel, other than money, in the hands of a third party and the third party denied the allegation of the principal; (3) if the claim was for a money debt due to the principal unaccompanied by an instrument of indebtedness and the debtor denied the debt. In situations (1) and (3) there could be a transfer of the debt by the means of ma'amad sheloshton, that is the creditor, the creditor's assignee, and the debtor being present and the creditor in the presence of the debtor orally assigns the debt to the assignee.

The Geonim permitted the power of attorney to be issued in the the latter three cases. 

Just as before the enactment of the Geonim, one could not assign an interest in or give a power of attorney regarding oral debts. so there could not be an assignment or power of attorney regarding an oath. 

By a decree of the Geonim, a power of attorney may be written in all situations. It does not matter if the claim arises from a bailment or is a claim for a robbed or stolen article, or for a debt, whether oral or evidenced by an instrument of indebtedness. This holds true even if the defendant denies the claim of the principal. This includes granting a power of attorney for instituting a lawsuit. If a principal grants more than one power of attorney regarding the same subject matter, the defendant need honor only the latest dated power of attorney. If the person who had the first power of attorney has already litigated a matter with the defendant and won the case, and thereafter the person holding the later power of attorney arrives on the scene, the defendant cannot ask that the matter be reopened on the ground the second power of attorney is dated before the first attorney-in-fact litigated the matter with the defendant.

The attorney-in-fact may not appoint another attorney-in-fact to act in his place. unless the original power of attorney expressly permitted him to do so. 

The attorney-in-fact must carry out the wishes of the principal. It is anticipated that he is given the power of attorney to improve the position of the principal and not to worsen it. If he is sent to sue on a claim, he may not forgive the claim or compromise it without the consent of the principal. If he is sent to reclaim a bailment, he may not permit the bailee to keep it. The attorney-in-fact may not release the principal's defendant from an oath. 

The power of attorney may authorize the attorney-in-fact to act regardless of the outcome, whether it enhances the position of the principal or puts the principal at a disadvantage: then all the acts of the attorney-in-fact are valid. The power of attorney may authorize the attorney-in-fact to settle or forgive claims. 

It is therefore incumbent on the defendant in all of these cases to request from beth din that they examine the power of attorney to see if the attorney-in-fact has the authority to engage in the litigation and whether the judgment of the beth din will be binding upon the principal. 

Reuven and Shimon have claims against the same third person, and Reuven authorizes Shimon to take the same action against the third person as he takes for himself. Shimon forgives both his own debt and Ruven's debt against the third person. Shimon must reimburse Reuven for the amount of his claim against the third person.

Yehudah has a power of attorney from the principal Naftali to sue Levi for a claim for moneys due from Levi to Naftali. Levi pleads as a defense that the facts pleaded in the complaint of Yehudah on behalf of Naftali never took place. However, Levi proposes that he will admit the claim that there is money due to Naftali if Naftali will appear in beth din and take an oath that there is money due to him from Levi. Beth din will take the money from Levi and hold it until Naftali appears in beth din and takes the oath. The law is similar in all cases where the defendant, Levi. makes his payment conditional on the principal, Naftali, coming to beth din to take an oath that the money is due to him. If he takes such an oath the defendant will not enter a plea of denial. Beth din should set a reasonable time for Naftali to come to beth din to take the oath, and if he fails to take the oath within that time, the money should be returned to Levi. 

If the beth din is distant from where the principal. Naftali, resides, the beth din where Yehudah sued Levi will send a message to a beth din close to Naftali's residence, and Naftali may take the oath there.

Yehudah, the attorney-in-fact, may pronounce a ban against all those who put forward pleas or defenses merely to delay the matter. 

Yehudah sues Levi, who can take an oath and win the case. Levi refuses to take the oath until Naftali, the principal, appears so that Levi can place a ban on all those who make false claims requiring defendants to take oaths to win the case. Levi cannot delay the case and either takes the oath or loses the case. 

The defendant may refuse to deal with an attorney-in-fact if he does not have an interest in the litigation. 

However, situations may arise in which the defendant does not raise the defense that the attorney-in-fact does not have an interest in the litigation. The attorney-in-fact may be getting paid a set fee regardless of the outcome of the litigation. If the attorney-in-fact is getting paid a set fee regardless of outcome of the lawsuit, then there is no prohibition against the relatives of the attorney-in-fact being judges or witnesses in the lawsuit, since the attorney-in-fact will receive his fee regardless of result. R. Karo states that it appears to him that the attorney-in-fact may even testify as a witness in the lawsuit. It seems to me that if the attorney-in-fact has a reputation to uphold that plaintiffs should pay him. even flat fees to argue their cases, that he and/or his relatives should not be judges in the case, nor be permitted to testify in the case. However, in any case where the attorney- in-fact has a percentage of the judgment to be obtained in the lawsuit, neither he nor his relatives should be permitted to testify, nor to act as a judge in the case. 

The lender may appoint the borrower to be his attorney-in-fact to sue a surety on the loan.

What appears from the last two lessons is that according to halachah the plaintiff may appoint an attorney-in-fact to represent him. There has not been anything said about the defendant appointing an attorney-in-fact to represent him. There was no provision for a defendant appointing an attorney-in-fact, and that is the way the halachah is stated in Shulhan Aroch Hoshen haMishpat, chapter 124. 

The current practice, as shall be seen in the text below, is to permit both sides to appoint attorneys. In the beth din system in the State of Israel, every attorney admitted to practice before the courts of the State is also permitted by statute to practice in the beth din of the State. There are also persons certified as "pleaders" who, while not admitted as attorneys in the secular courts of the State of Israel, are admitted to practice in the beth din. 
There is thus an anomalous situation in the Beth Din system in the Land of Israel. Anyone admitted to the practice of law before the secular courts may practice before the Beth Din, a religious court, even though he has no religious beliefs or is anti-religious. But a religious woman who is familiar with halachah, until recently would not be granted the privilege of taking examinations to become a Rabbinic pleader; that is, only men could represent litigants before the Beth Din, unless they were admitted to practice as lawyers in the State of Israel. However. Recently many highly qualified women have been admitted to practice as pleaders in the Rabbinic courts. 

R. Yosef Karo states in Shulhan Aruch, chapter 124: 'The defendant may not appoint an attorney-in-fact who should appear for him in Beth Din to respond to the pleas of the plaintiff, and the defendant remain at home.”
Rabbi Yechiel Michel HaLevi Epstein in 1884 in Aruch HaShulhan, Hoshen haMishpat. chapter 124, paragraph 2, states: "All that has been said is according to the law. But now the custom is in all Beth Dins for also permitting the defendant to appoint an attorney-in-fact, and certainly the plaintiff. This is so whether the litigants are present in Beth Din or whether they are not present in Beth Din. Nevertheless, if they are not present in Beth Din and the Beth Din perceives that with only attorneys present they cannot arrive at an accurate decision, they may send for the litigants to appear in Beth Din, and this is the proper procedure.” 

The laws of the State of Israel provide that anyone admitted to practice law before the courts of the State are permitted to practice before the Beth Din.
The rules of the Beth Din state: "Rule 45. (1). The following may appear as representatives in Beth Din: (a) A certified attorney at law admitted pursuant to the laws of attorneys of the State of Israel; (b) a Rabbinic pleader certified according to the rules of pleaders of the Beth Din. (2) Beth Din may certify a person who is neither a lawyer nor a Rabbinic pleader to appear in a specific instance or a specific case." 

As seen from the foregoing it would seem, as stated by R. Epstein, the halachah just evolved to having lawyers and pleaders represent litigants before the Beth Din. 

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.123 and 124 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores. 
Questions to quint@inter.net.il