Lesson # 434 Selecting a Beit Din About a year ago, we at the Israel Center assembled a Beit Din of three judges. Our Beit Din administrator set the hearing for 9:00am. We, the judges, assembled at about 8:45am and waited for the litigants, the plaintiff and the defendant to appear. The plaintiff appeared at about 9:00am and a few minutes later the defendant appeared. The latter seemed to be very troubled. He looked at the three judges and saw one with a small beard, and two without beards and not one judge was wearing a black hat. The defendant announced in Yiddish that he did not anticipate such a Beit Din and would not sign the stipulation binding him to be bound by the decision of the Beit Din. He would go to a Beit Din consisting of three judges who looked like ìChasidisher Yiddenî All lituigants that appear before our Beit Din sign a stipulation agreeing to be bound by the judgment of our Beit Din. When the defendant walked out, the plaintiff asked if we could grant him a default judgment declaring that we found in his favor since the defendant was not appearing before the Beit Din. We told him that we could not grant such a judgment, not being authorized by the laws of the land to issue default judgments. (As an aside, I know of a Beit Din that issues default judgments when the defendant does not appear. I imagine such judgment could be used as a psychological tool in the hands of the plaintiff.) The plaintiff asked us what remedy does he have against the defendant. We told him that since the defendant said he would go to a Beit Din that looked like the judges were Chasidisher Yidden, that the defendant had that option. I told him of a decision by one of the greatest scholars of the last century, Rav Moshe Feinstein who had a response (a tshuva) on that very issue (see Igros Moshe, volume 7, page 21). He cites a Talmudic passage that states: ìOur Rabbis taught: Monetary cases are decided by three [judges] but one who is a recognized mumcheh can judge by himselfî We can loosely translate mumcheh to be a recognized expert in the field of monetary jurisprudence. That expert may judges cases even against the will of the defendant and his judgment is binding on the parties. Rav Feinstein says that a reading of that Talmudic passage indicates that the three judges may also judge by themselves and their judgment will be binding on the parties. The question presented to Rav Feinstein is, does such an option exist nowadays when one of the litigants says he will go to a Beit Din but not the one selected by the plaintiff. Could the defendant make such a plea in our case? Rav Feinstein concludes that such a plea by the defendant is definitely available to him. In those lands where the Beit Din is sanctioned by the secular state and is given the power to issue default judgments when the defendant fails to appear, is certainly available in those locations. It does not apply where the defendant says that he is willing to go to another Beit Din. Or when the defendant states that he wants the Beit Din to be chosen by the method known as (ZABLA - the initials of ZEH BOREIR LO ECHAD, V'ZEH BOREIR LO ECHAD). Under this method the litigants each appoint one judge and the two appointed judges select the third judge. The option is available to the defendant even if the three judges of the plaintiff's Beit Din are mumchim, experts in the field of jurisprudence. In another case that was presented to Rav Feinstein, a principal of a yeshiva in Brooklyn was accused of not abiding by the laws of the Torah. He was appointed several years earlier and had the consent of the various Rabbinic organizations that supervise Torah education in that class of Yeshivot. The principal denied all of the allegations against him and said it was a plot by some persons to have the position of principal vacated so that they could hire a friend of theirs for the position. Rav Feinstein was asked if the two sides, the directors of the yeshiva on one side and principal on the other side, could each select one judge and the two judges select a third judge? Rav Feinstein responded that this was not a monetary dispute where both sides have available to them the method of each selecting one judge and the two judges selecting a third judge. This was not such a dispute. In this situation where the rabbis of the community who are expert in the matters of the community should investigate the matter. Since the rabbis of the community and the applicable Torah education organizations had approved the appointment of the principal, they should appoint capable rabbis who should investigate the matter, and the decision of the rabbis should guide the management of the yeshiva what their future actions should be regarding the principal. If they find the allegations against the principal to be true, then he should be dismissed. If the find that the allegations are not true or they cannot come to a conclusion whether or not they are true, then the principal should remain, since there is a presumption that one is not a law breaker unless it can be shown otherwise. This is especially true if the sole evidence against the principal is produced by only one person, and as is indicated in this case the sole witness did not observe the alleged transgressions himself but seems to have heard it from another person. Rav Feinstein goes to say if both sides agreed already to be bound by the method of ZABLA, and the selected judges are prominent rabbis, then this method should be pursued. The yeshiva also raised another point: they wanted the Beit Din to consist of five judges, rather than the three who are appointed by ZABLA. Rav Feinstein discusses at length that this is not a monetary matter, and the halacha is that three judges can judge all cases and this case is part of the overall context of three judges judging. This is a case where the principal wants the opportunity to prove that he is capable of being the principal and thus he should be in the role of the plaintiff. If in monetary disputes it is sufficient to have three judge, certainly in this case where there is only a case to find out if the principal was worthy to stay on his job. Even in those situations where a litigant can demand that there be five judges, it would not apply where there is additional expense to the litigants to pay five judges. As I read and re-read Rav Feinstein's responsum, I thought of something I had written many years ago and appears on page 89 of Jewish Jurisprudence: ìAlthough a court of three judges is a complete court, it is preferable that more judges be added to the court. However, there must always be an odd number.î The subject matter of this lesson is more fully discussed in A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Pi-n'chas Homepage]
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