Tuesday, January 18, 2022

Is there a concept of appeals in the Bais Din system?


  • The Gemara comments that one beis din does not investigate the conclusions of another. It is unclear whether this is a descriptive statement, or a halakhically binding one that must be followed. Many commentaries feel that it is indeed instructive. If so, two reasons are offered for it:
  • The right of the victorious one not to have to reargue his case
  • Respect for the first dayan
  • The Gemara writes elsewhere that the losing litigant may ask the beis din in writing for an explanation of why they judged him in the manner that they did. The acharonim explain that this may be due to the right he has to appeal the decision. Some commentaries held that this is only allowed where he was forced to appear before that local beis din that issued the decision, while the first passage in the Gemara is where both willingly appear.
  • The consensus opinion is that in principle, the rule of lo dayki, not reviewing a case in another beis din, does apply, even if the dayanim are not great Talmidei chachamim, though some, such as the Radbaz, disagreed.
  • Some poskim held that if the halacha in question was complex and not well-known, we may suspect a decision in error, and review the case. Rav Ovadia felt today that everyone would agree with this assessment, as we are on a very low level of Torah knowledge.
  • Many modern poskim argued that even if we accept that the rule of lo dayki applies in all cases, this is only true where no universally accepted system of appeals exists, and only ad hoc review takes place. However, if the community and its leaders establish a system, takana, enactment, or minhag, custom, to introduce this system, and everyone participates and enter with full understanding of how the system works, then many (though not all) argue that this is completely permitted. No degradation to the beis din exists, and it does not violate the rights of the litigant. Finally, as noted by the Tzitz Eliezer and Yabia Omer, this system has already been in place in Israel for a while, many gedolim even sat on it, and it is the common custom today.

1 comment :

  1. On Lo Tzais dino:

    Hil.Sanhedrin 25


    When a person is summoned by the
    court and does not appear in court, a ban of ostracism is pronounced
    against him. This ban is recorded in a legal document; he is liable to
    pay the fee of the scribe who composes the document. When he comes to
    court, this document is torn.

    If such a document was composed because a litigant did not accept a
    judgment, it may be torn up when he states that he is willing to accept
    it. When a court summons a litigant to appear on a certain day and he
    does not appear at all that day, a document recording the ban of
    ostracism is composed that evening.

    When does the above apply? When he lived in the city and stubbornly
    refused to come. If, however, he lived in the outlying villages and
    would go in and go out from the city at times, we summon him to appear
    in court on Monday, Thursday, and the following Monday. If the second
    Monday passes without him appearing, we do not compose a ban of
    ostracism until the following day.ח

    שֶׁשָּׁלְחוּ לוֹ בֵּית דִּין לָבוֹא וְלֹא בָּא לַדִּין מְנַדִּין אוֹתוֹ
    וְכוֹתְבִין עָלָיו פִּיתְחָא וְנוֹתֵן שְׂכַר הַסּוֹפֵר וּבָעֵת
    שֶׁיָּבוֹא קוֹרְעִין הַפִּיתְחָא. כָּתְבוּ לוֹ פִּיתְחָא מִפְּנֵי
    שֶׁלֹּא קִבֵּל הַדִּין כֵּיוָן שֶׁאָמַר הֲרֵינִי מְקַבֵּל הַדִּין
    קוֹרְעִין נִדּוּיוֹ. קָבְעוּ לוֹ בֵּית דִּין זְמַן שֶׁיָּבוֹא הַיּוֹם
    וְלֹא בָּא כָּל אוֹתוֹ הַיּוֹם כּוֹתְבִין עָלָיו פִּיתְחָא לָעֶרֶב.
    בַּמֶּה דְּבָרִים אֲמוּרִים כְּשֶׁהָיָה בַּמְּדִינָה וּמָרַד וְלֹא בָּא.
    אֲבָל אִם הָיָה בַּכְּפָרִים וְיוֹצֵא וְנִכְנָס קוֹבְעִים לוֹ זְמַן
    שֵׁנִי וַחֲמִישִׁי וְשֵׁנִי. וְאִם שָׁלַם יוֹם שֵׁנִי וְלֹא בָּא אֵין
    כּוֹתְבִין עָלָיו פִּיתְחָא עַד לְמָחָר:


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