Dinei Torah (Dispute Adjudication)

In accordance with Jewish law, an individual who has a dispute with another is generally required to present the case before a Beis Din rather than a secular court. When a plaintiff requests a Din Torah (court hearing), a panel of three knowledgeable dayanim (judges), all versed in the relevant areas of halacha, listens to both sides of the case. The dayanim consider the halachic ramifications of both sides of the case and render a decision which is binding on both parties, according to both secular and Jewish law.

In many cases, disputing parties may try to avert the need for a Din Torah (a Jewish court hearing) by addressing the dispute through mediation. In such cases, the Beis Din serves as an objective third party that attempts to facilitate a mutually agreeable resolution to the conflict. In a mediation role, the Beis Din does not force either party to accept a particular resolution. However, mediation can be a preferable option because it presents a friendlier, resolution-focused alternative to a Din Torah.

When an individual wishes to summon another person to a Din Torah, the Beis Din can issue a hazmana (literally, “invitation”). The defendant is expected to contact the Beis Din in order to make arrangements for the hearing. In some cases, a defendant may have procedural objections to going holding a Din Torah, such as a case that was already decided in a different forum. If so, the recipient should submit a written objection to the summoning Beis Din for consideration. Otherwise, in general, if a defendant fails to respond after three summonses, the court may issue a contempt decree in order to publicize that the person refused to answer the Beis Din.

The recipient of a hazmana is obligated to settle the case in a Beis Din, although he or she may propose to address the issue in an different Beis Din. Alternatively, the disputing parties can form a joint Beis Din is through the “zabla” procedure, in which each party selects one impartial judge, and the two judges select a third. To adjudicate a zabla case in Detroit, selected judges must be independent (as opposed to advocates for either side) and be approved by the Council of Orthodox Rabbis of Greater Detroit.

Prior to a Din Torah, both parties sign an “arbitration agreement,” which indicates that the parties have agreed to take their case to a forum other than a court for a decision. The American legal system recognizes this document as legally binding. Under Jewish law, the role of the arbitration agreement (called a “sthtar beirurin”) is to clarify the dispute that the Beis Din is deciding. Since the parties may have a choice of several rabbinic courts, the arbitration agreement also indicates that both sides accept the decision of the particular Beis Din.

The Hearing

Generally, the hearing begins with some procedural matters, including additional paperwork and photo identity verification. The judges should avoid preconceptions about the case, so they are generally told only the basic outline of the case in advance. As such, each side should expect to present the full story of the dispute at the hearing.

In most cases, the plaintiff opens the hearing by presenting a thorough account of the dispute to the dayanim first, including evidence and a detailed description of the judgment (in dollars and cents) sought. Afterward, the defendant presents the opposing account, including counterarguments and any relevant evidence. During the hearing, either presenting party may realize that some relevant evidence is unavailable for the hearing, and can request to submit it later. Otherwise, many dinei Torah are completed in a single hearing.

The parties take turns presenting, back and forth, until the dayanim perceive that both sides have fully presented their views of the dispute. While a party is presenting, the opposing party is expected to remain silent; questions and counterarguments can be quietly written down so they can be presented during a subsequent round of presentations. At any time during the hearing, judges may interrupt to ask questions and seek clarification.

Evidence must be shared with everyone, including the judges and the opposing party. Therefore, if the evidence is written, all three judges and the opposing party should receive a copy; each side should bring five copies of anything important – one for themselves, one for the other side, and three for the judges. This rule applies for evidence submitted after the hearing as well.

Witnesses

In Beis Din, like in any court, testimony can be essential to bolster one’s claims. In principle, Jewish law requires witnesses to be Torah observant males above the age of 13 and independent of either party to the case at hand. However, Jewish law also recognizes that in many circumstances, testimony will only available from witnesses who do not meet the above criteria. Therefore, a Beis Din may accept the testimony of interested parties, including close relatives and employees, for certain cases involving financial claims.

Witnesses do not attend the proceedings except during their testimony. In this way, the dayanim can corroborate the independence of witnesses through statements made during the proceedings. Witnesses are not sworn in; they are expected to be truthful as a matter of religious obligation.

Decisions of the Beis Din

Generally, decisions of the Beis Din are issued in a written document, and the document may or may not include the reasoning. The decision is considered an “arbitration award,” which is enforceable under secular law. Although the decision does not have a formal appeals process, the Beis Din may opt to review the case if new evidence emerges or in the event of a clear mistake.

Questions

Q. What happens if the person who is summoned to a Din Torah refuses to come?

A.  If the parties had previously agreed to resolve disputes through a particular Beis Din (for example, in a contract provision), the Beis Din can hold a Din Torah in the absence of defendant. Otherwise, the summoning Beis Din may issue a “heter arkaos,” which grants the permission to the plaintiff to go to secular court.

Refusal of a summons by the Beis Din constitutes a violation of Torah law. A Beis Din may choose to issue a seruv (contempt order), which is a public declaration of the defendant’s refusal to answer a summons. Some Jewish communities or synagogues impose sanctions on such people, precluding them from participation in religious and social privileges, to pressure the person to meet their obligation. Occasionally a summoning Beis Din may issue an “ikul,” a restraining order.

Q. Do I need a lawyer?

A. No. However, under secular arbitration law, you have the right to have a lawyer present if you want one. A lawyer may help you organize your case. However, unlike secular court, the judges in Beis Din have a much greater responsibility to make sure each side fully presents their case, so a lawyer is not necessary.

Q. If I want a lawyer, do I need a lawyer with special expertise in Jewish law?

A. No. The main advantage of a lawyer is to make sure that your case is organized, and that you do not neglect any evidence in your favor. The judges are responsible for identifying Jewish law relevant to the case.

Q. Do the judges follow American law?

A. The judges follow Jewish law, which often takes the local law into account. For example, Jewish law often considers common business practice, which is often a product of American law. If someone enters into a contract that is binding according to American law, then they are generally bound by Jewish law as well, because the business community considers such contracts binding. Also, there is a principle in Jewish law called “Dina d’malchusa Dina,” literally, “the law of the government is the law.” The exact parameters are somewhat complex, but this means that Jewish law recognizes many secular laws. Bankruptcy laws are often a good example.

Q. Does the Beis Din recognize corporations and the related limitations on liability?

A. Generally, dayanim at the Beis Din treat corporations much like they are treated under secular law. Although Jewish law might not specifically recognize the existence of an independent entity with its own liability such as a corporation, nevertheless, a person who does business with a corporation is usually assumed to observe common business practice (including limitations on liability). Even under secular law, however, corporations do not always shield individuals from liability.

Q. What are some notable distinctions from secular law?

A. Jews are forbidden to charge each other interest on loans, so if a contract calls for interest or a similar provision, a Beis Din will often strike that provision. Inheritance rules are also very different, particularly in the absence of a will.

Q. Are the judges bound by precedent?

A. The judges in a Din Torah apply their understanding of Jewish law, and not all judges understand the law in the same manner. However, the body of Jewish law is very extensive, so many questions do have a clear resolution that the judges can be expected to follow.