Shabbat Parashat Pinchas| 5766
Mishpat Ve halacha Be Israel - Part XVII - Temporary Measures - Harav Yedidya Kahane
In the Rules of the Beit Din it is written that the both the plaintiff and the defendant have to write their claim and their response to the claim, respectively, prior to the hearing. The claim form should specify the nature of the claim, and in the response, the defendant should refer and respond to the details of the claim. Let us investigate the halachic basis for this requirement.
The Shach (CM 11) cites the B’er Sheva, who says that a plaintiff can summon a defendant to court without revealing what it is he is claiming. He cites a Talmudic concept that “one is apt not to reveal his claims outside of beit din.” The Shach himself argues on this ruling and explains as follows. The defendant can say that it is logical for the plaintiff to have to state his claim in order to give the defendant the opportunity to agree to the plaintiff’s terms rather than go to court. Therefore, he says, as long as the plaintiff refuses to state his claims, the defendant is not obligated to come to court at all. The Shach explains the gemara’sconcept of not revealing one’s claims differently. It only means that one’s failure to mention a specific detail of his claim outside court does not preclude his mentioning it in court. That does not mean that the defendant must come to court even if he is not being told the nature of the claim in general.
Based on the classical sources alone, a defendant is not required to provide a written response to the claims against him prior to commencement of the proceedings. The gemara (Bava Batra 167b) says that one does not write a document of “birurim” without consent of the two sides. One opinion in the gemara explains that it is referring to a record of the claims. Thus, without each side’s agreement, one cannot write the claims and counter-claims. The Nimukei Yosef explains that in general, the court’s scribe would write down the sides’ claims to prevent them from changing them as the case proceeded. Since this documentation could be damaging to the sides, it required agreement to be written. As opposed to oral claims, which can be changed with an explanation (amatla), written ones cannot.
Despite all of this, the minhag in most batei din, including the Israeli Rabbinate’s official courts, is to have the plaintiff write down his basic claims. The rationale is that this saves significant time and curtails confusion in the court, which can delay the pursuit of justice. We should stress that the written claims are not intended to replace orally presented claims, which are presented during the actual court case.
What our beit din has implemented, which the government-sponsored batei din do not, is the requirement of written responses from the defendant. Our intention is to allow the beit din the opportunity to reach the root of the dispute in a quicker, more efficient manner.
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