Wednesday, April 20, 2016

Review of The Beys Din System Today by R’ Ari Marburger (published in Dialogue) -[ Kaminetsky-Greenblatt Heter]

Guest post by Yehuda

“It’s common when someone loses in Beys Din that he tells his friend his innocence and says, “You can see that I’m correct and Beys Din got it backward. If my case would have been in front of So-and-So who’s know as a wise man, he certainly would have seen who’s correct and wouldn’t have reached such a terrible backwards verdict!” He then continues cursing the Beys Din because of this in ways that aren’t fit to print.”

Frustration with Beys Din is not a new phenomenon, as the above quotation from the Chofetz Chaim (L”H 6’ 8’) indicates. No one likes to lose, and it’s a lot easier to blame the Beys Din than to admit to being wrong. Yet there are legitimate complaints about the modern Beys Din system in the United States, and recognition of the problem is always a prerequisite for finding solutions. Therefore it is a pleasure to see the issue discussed in Dialogue in what is promised to be the first of several articles. R’ Marburger is the director of the Business Halacha Institute and therefore focuses on Choshen Mishpat, but most of his discussion applies to Beys Din in general.

The article begins with a very important disclaimer: The fact that Beys Din has issues does not mean secular court becomes automatically permissible. We have had an illustrious visitor to this blog argue that Tamar Epstein was justified in going to secular court because Beys Din has problems. It was noted at the time that no Rabbonim permit such an indiscriminate amendment to the Shulchan Aruch, but the misconception is unfortunately widespread.

Before we get to the legitimate complaints, it is important to define several terms. A Beys Din Kavua is a Beys Din established with the consent of the community. A Zabla Beys Din is a process in which each litigant chooses one Dayan and then the two Dayanim choose a third Dayan. A Zabla Beys Din is more problematic than a Beys Din Kavua in all of the issues at hand.

R’ Marburger primarily discusses four issues: The cost of a Din Torah, the inability to appeal the Psak, private communication between the Dayanim and litigants, and the lack of a written explanation of the Psak. All four are against the Shulchan Aruch. Yet all four are common practice and therefore justified by the Acharonim on various grounds. However, the real question is not how is it permissible, but why are we looking for loopholes? Regarding cost, the answer is simple: Dayanim don’t get paid by the community or the government, so if they wouldn’t charge the litigants they would starve. R’ Marburger notes that Zablas cost more than a Beys Din Kavua and tend to take longer (the beauty of charging by the hour). The lack of appeal is also justified by the legal requirement that arbitration agreements be final. However, the other two problems are a lot harder to justify. R’ Marburger does not present a reason per se why a Beys Din would want to communicate privately with a litigant (other than the obvious, which we’d rather not think about), rather he presents a Halachik justification for Zablas to engage in this behavior. This leads to two important ramification: A Beys Din Kavua has no such Heter, and even a Zabla can be forced to abide by the original Halacha if a litigant insists beforehand. Finally, the most difficult issue to explain is why Beys Din often does not provide a written explanation of its psak. R’ Marburger provides three possible reasons: Cost, potential embarrassment to the losing party, and the possibility that someone will make fun of the psak. This third concern seems to be based loosely on the Gemora Avodah Zarah 35a or Igros Moshe Y’D 4’ 38’ 7’, which is primarily a concern that someone will not follow the psak, not that he’ll make fun of it. Whatever the reason for the custom, in today’s climate when people already have questions with the system, it seems counterproductive to ask for blind trust from litigants.

The article is certainly thought provoking, but something very curious appears after the article: an addendum from R’ Shlomo Miller that in some ways is more significant than the entire article. It represents the first time that a mainstream publication has published a rebuke of the actions of R’ Herschel Schachter and R’ Shmuel Kamenetzky against Aharon Friedman. No, R’ Miller does not say any names. But he states that no one other than a Beys Din Kavua can issue a Hazmana; in other words, Rabbis Schachter and Kamenetzky and certainly Martin Wolmark cannot issue a Hazmana to anyone, and if you can’t issue a Hazmana then you obviously can’t issue a Seruv for failure to respond. Ben Bno shel Kal V’Chomer that you can’t order that someone be beaten, as R’ Schachter stated publically about Aharon Friedman. R’ Miller also says that you can only force the opposing litigant to use Zabla when the Dayanim are distinguished people, but otherwise they do not have the status of what the Shulchan Aruch calls Zabla. This is a remarkable statement that allows more people who are leery of Zabla to avoid it.

So what are the Gedolim going to do to fix the problems? Ask not what the Gedolim can do for you; rather ask what you can do for the Gedolim(and klal yisrael)! According to R’ Marburger, the fix will have to come from the bottom-up. He states “Change will require… widespread grassroots insistence by the end-users of the system”. Sounds like a job for a blog!

Note: As per R’ Aharon Feldman, anyone who has something to add to the discussion is encouraged to write a Letter to the Editor of Dialogue.

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