Shabbat Parashat Eikev| 5766
Location of Din Torah When Litigants Come From Different Places
The gemara (Sanhedrin 31b) discusses a case where one litigant wants to adjudicate locally, and the other wants to go to the beit hava’ad (a particularly distinguished beit din). The gemara concludes that generally they stay locally, but a lender can force a borrower to go to the beit hava’ad. The poskim discuss many details in this regard. These include if the power of the lender is specific to a lender or applies to other examples of plaintiffs and the extent to which the alleged lender needs to substantiate his claim (see Choshen Mishpat 14 with commentaries). The gemara does not discuss the case where the only issue is the location.
The Maharik (1) in discussing matters of jurisdiction says, as a simple matter, that a plaintiff cannot make the defendant come to his place to adjudicate. He does not provide a source, a reason, or the parameters, which leave the matter to discussions until today. The Gra (CM 14:18) says that it is based on the same concept as the law that without proof, the plaintiff cannot extract money from the defendant. Although the Gra is cryptic as usual, Rav Yisraeli (Mishpatei Shaul 42) sees this as an indication that this is a fundamental rule and not a pragmatic rabbinic institution.
Others say that the rule of following the defendant’s location is a pragmatic institution. (K’nesset Hagedola attributes it to protecting the defendant; see variations of explanation in Mishpatei Shaul 40). This approach lends itself more easily to exceptions. Therefore, Rav Goldschmidt (ibid.:42) says that if the plaintiff is a woman suing for divorce in Israel, where the courts have real authority, then the husband cannot opt for a beit din near his home abroad, where a beit din lacks governmental recognition.
The Maharashdam (CM 103) makes a different distinction. If the parties did business in the plaintiff’s location and the defendant moved elsewhere, then he is required to return to the location of the affair to adjudicate. The question is how broad a rule this was intended to be. For example, what happens if the business was performed not by the defendant himself but by his agent or if it was known at the time that the defendant was not planning to stay in that location? It is this writer’s understanding that the Maharashdam’s exception to the rule applies only when its logic is relatively compelling (see more in Mishpatei Shaul 41).
The Aruch Hashulchan (CM 14:3) and Rav Yisraeli (Mishpatei Shaul 42) say that that which normally gives the defendant the advantage is the fact that their alleged obligation to pay has not been substantiated, not the fact that they have possession over the money. Therefore, if the there are clear grounds for payment, but the defendant has a counterclaim that, if proven, exempts him, then he would have to go to the plaintiff’s location to substantiate his counterclaim.
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