‘Order in the Court!’: Is There?

Rabbi Dovid Englander

The Din Torah process in contemporary times

It is
not uncommon for people to question the beis din’s procedures, action, and
motives, especially when they are first exposed to a beis din as a party to a
case. The first step toward understanding how and why a beis din acts is to
attempt to see things from the perspective of a neutral party. As simple as
this may sound in principle, it is quite difficult to put into practice.

A
beis din is duty-bound to resolve the matter without unnecessary delay. But for
proper resolution, both sides must appear in court to present their case in the
presence of each other. For this purpose, the beis din will summon the opposing
party to appear so they may address the claim.

When one
turns to a beis din to resolve a claim, it will summon the defendant to appear
before the court to address the plaintiff’s claims.

Essentially, a hazmana is but a relaying of the dayan’s order to appear and respond to a claim. In Parashas Korach, Moshe sends a messenger to summon Dasan & Aviram to appear before him. From here the Gemara derives the proper procedure of summons to beis din. To avoid the appearance of partiality toward the plaintiff, a shaliach, rather than the dayan himself, will approach the defendant in person and summon him in the name of the dayan or beis din.

In
our day, instead of a messenger, the custom of batei din is to issue a hazmana writ and to rely on
the postal authority for delivery. Some batei din still will attempt to
ascertain that the written hazmana arrived at the correct address.

Prior
to issuing the hazmana, the beis din needs to hear some facts about the
case for a number of reasons.

Firstly, the hazmana must include the name of the tove’a, and the basic subject of the case. A defendant must be informed who is making the claim against him so that he may seek resolution or prepare a defense.

Sometimes,
the beis din will require that the hazmanah must specify the amount or the item being
claimed, so the defendant can choose to pay up to avoid the indignity of going
to beis din.

The
beis din must also make sure that the plaintiff has the authority to make the
claim.

The beis din may also want to be sure that the case
is appropriate for this beis din. Imagine if, at some point in the din torah, a
litigant were to discover that one of the dayanim also provides kashrus
certification to a business owned by his opponent. A beis din must be careful
to avoid even the appearance of partiality. In such a case, they may be
referred to a different beis din.

The hazmana process has a
built-in schedule to ensure that it is followed up with. Each hazmana features a date and
time, usually about ten days from when it is being sent. If no response is
received by the end of the time of the appointment on the hazmanah, a second hazmanah can be sent out.

Although
the recipients are obligated to comply with the first hazmana, the prevailing
custom is that the beis din sends a second and third hazmana before declaring him
in contempt. But it should be noted that one is still not permitted to simply
thumb his nose at beis din by flouting a first hazmana.

If
they do respond, they can ask for the case to be heard in another beis din. If,
after some time, the defendant has still not scheduled a din torah with the
other beis din, the plaintiff can ask their chosen beis din to resume the hazmana process, or you can
return to the first beis din.

The defendant may request a change of date if he needs it. According to halacha one must give a valid reason for postponement but as long as one is acting in good faith, beis din will try to accommodate.

With the third hazmana, the beis din will usually issue a warning that it is the final hazmanah and that failure to respond may result in a seruv. The seruv is a grave declaration, conveying to the entire community that the recalcitrant party is a mesarev l’din, and should be treated with all attendant consequences. It is a punitive instrument of enforcement that most batei din use very judiciously, so as to preserve its weighty significance for only the most compelling instances. If a litigant feels a seruv is in order, he may request it.

Alternatively,
since the defendant is a mesarev l’din, the beis din may issue a heter
arkaos,
which is a license to bring the matter before a secular court.

The
entire hazmana process can take anywhere from a few weeks to several months, depending
on how compliant the defendant is.

If
that sounds like a long time, keep in mind that if one were litigating in
secular court he would still be months or even years – and hefty legal fees –
away from a trial. He would have to hire an attorney to serve and file a
complaint, to which the opponents would be given three weeks to respond. If the
plaintiff survived their Motion to Dismiss, he would wait again for preliminary
conferences to fight over the discovery process. Then, months of discovery can
easily stretch into years of depositions, interrogatories, subpoenas, delaying
tactics and all sorts of shtick. Then, if the case makes it past Summary of
Judgment intact, it would go on pretrial order. The protracted trial still hasn’t
begun, and the litigants have already expended a significant portion of their life
and fortune on the legal process.

As justice systems go, you’re in the fast track
with beis din.