Lesson # 335 •Trials at Night Following up on last week's lesson that dealt with Beth Din procedure, namely should the Beth Din break for lunch, we shall now discuss a matter that some of the litigants and/or their attorneys, ask about, can we schedule trials at night when it is more convenient for some of the litigants and their attorneys? A Mishna in T. Sanhedrin (4:1) states that civil trials are conducted during the day and concluded at night. The Talmud (Sanhedrin 34b) shows that this is based on verses in the Torah discussing the trials. One verse states "They shall judge the people at all times" (Sh'mot 18:22) and another verse states "And in the day he causes his son to inherit" (D'varim 21:16). In order to reconcile the verses, the Talmud demonstrates that the first verse refers to the rendering of the decision, that is the conclusion of the trial may take place day or night. The second verse refers to the beginning of the trial, that is, the entire trial until the decision, which must be held during the day. (There is an opinion in the Talmud, that of R. Meir, who holds that the rendering of the decision as well as the trial must take place during the daytime.) Based on these statements, there are many commentaries and codes that deal with this issue. In our Beth Din at the Israel Center, we have offered the litigants the option of having the trial held at night if it would be more convenient. How could we offer such an option? All authorities agree that a trial may commence at night if the litigants agree. Moreover, if the litigants are summoned to come to Beth Din at night, and they appear, it is as if they have stipulated to have the trial take place at night. Both sides may stipulate (agree) to have the trial take place at night since they may agree to waive other procedural rules. Thus, for example, the father of one of the litigants is not legally competent to serve as a judge in his son's lawsuit. However, if the parties stipulate that he may act as one of the judges, then his judgment is valid. Yet we see that many 'Din Torahs' (trials before the Beth Din) do take place at night, either they begin at night or go into the night, especially on the short days of the year. What is the basis for such procedure? There are several ways that this is done. 1. The litigants agree that they want this done, that is to have sessions of the Beth Din held at night. . Many of the litigants have jobs or businesses to run during the daytime and prefer to have the Beth Din sessions held at night so that they do not lose income by having daytime sessions. When the trials are held at night, we have the parties enter into an agreement permitting their trial to be held at night or if commenced during the daytime to continue into the night. 2. There are some Beth Dins (Batei Din) whose judges have daytime jobs and it would entail a loss of income to the judges to meet during the daytime. (In some of those Beth Dins the judges receive remuneration, paid by the litigants to compensate them for the time they took off to judge the case. In our Israel Center Beth Din none of the judges or staff get paid so that is not a consideration.) 3. Many of the witnesses whom the litigants intend to call do not want to lose time from their work to testify during the day before Beth Din. Thus in most circumstances, holding the trials at night would be perfectly valid. What if a Beth Din without making the parties aware and without have a stipulation stating that the trial can take place at night, nevertheless did hold meetings of the Beth Din at night? What if Beth Din did not know that the trial cannot be held at night, unless as is stated herein? R. Moshe Isserles in his emendation to Shulhan Aruch Hoshen haMishpat 5, states: "There are those who hold that if the judges violated the law and held a trial at night, then their judgment is valid." There are long lists of authorities on both sides of the question, may a trail be held at night, if the litigants did not so agree? In our Beth Din, Ita Rochel, who is our marvelous administrator, asks the litigants to give her preferred dates and times which are most convenient to them. After hearing both sides, or their lawyers if they are represented by lawyers and getting preferred dates, she asks the judges if that is convenient to them. So far the dates that Ita Rochel has set have been the dates on which the trials have taken place. Once the trial date and time have been set, the judges convene on the third floor conference room at the Israel Center. The judges are always early so that they can be seated, the trial room arranged with the chairs set up in such a way that the parties and their lawyers have adequate space allotted to them. Provision is made for chairs outside the room so that witnesses who will be called to testify will feel comfortable while waiting. There are times when we had to adjourn when some of the litigants or their attorneys had to ask for an adjournment to daven Mincha. The judges daven Mincha in the Israel Center in the second floor Beth Midrash, at the regular Mincha time there, as organized by Mr. Phil Chernofsky at 1:20 PM. In the Shulhan ARuch it states : There are those who say that if the judges made a mistake and violated the law and held a trial at night, Then their judgment is valid. The subject matter of this lesson is more fully discussed in volume I chapter 5 A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat B'ha'alot'cha Homepage]
|
