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Shabbat Parashat Vayeishev 5782

P'ninat Mishpat: Judging Someone who Refuses to Appear before Court

(based on preliminary decision in case 76084 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) claims that he bought a property from the defendants (=def), four brothers who inherited it. Def were supposed to have taken the steps necessary (somewhat more complicated than regarding most properties) to transfer ownership, but they failed to do so, even though a few years have gone by. The contract between them has an arbitration clause, which sets Eretz Hemdah as the place of adjudication and states that it will be done according to Torah law. Beit din sent the claim sheet to def, according to their official addresses. A person called beit din, identifying himself as one of def and asked for certain materials related to the case. Subsequently, none of def responded to beit din’s calls. Beit din set a time for a hearing and informed the sides by letter and tried to get hold of def. A final letter informed the sides that if necessary, a hearing would be held even if only one side came. A courier said that this letter was accepted at def’s main address by a woman who gave her first name. Some of the secretary’s calls were answered by def’s daughter and another, by his wife. They were requested to tell him to contact beit din. On the day of the hearing, one of def called. He claimed that he did not receive beit din’s notices and that he was not going to take part because he was unaware of the contract’s arbitration clause. Pl came to the hearing; none of def came. Pl requested a ruling in abstentia plus expenses.


Ruling: When beit din is presented with a contract with an arbitration clause that appoints them, they have a right to assume that it is authentic. If there is a claim that it is not authentic or binding, legally, the decision can only be made by the government’s regional court. Def has a right to appeal to them.

If they do not and do not appear, may beit din judge in abstentia? According to the Bach, K’tzot Hachoshen, and Tumim (all in Choshen Mishpat, siman 13), there are times when a person can be judged in abstentia. According to the S’ma, Shach, and Netivot Hamishpat (ad loc.) this can never be done. The remedy for one who does not comply with a subpoena is to put him in niduy (a form of excommunication) (Shulchan Aruch, CM 11:1). However, it is not legally possible to do that nowadays in Israel. Rav Z.N. Goldberg has ruled that under these conditions, all agree that one can adjudicate in abstentia (based on Rama, CM 28:16, regarding testimony against a person). This is also included in the arbitration agreement’s clause of ruling according to Torah law, which nowadays includes compromise (see Rav Goldberg, in Dinei Borerut p. 264).

Because pl, his lawyer, and the dayanim came to beit din and waited for def, we are charging def 2,000 NIS in expenses, to be paid within 45 days. If def appear before beit din and can explain their absence, it is possible to rescind this charge, as is the case if they can show that they turned to the regional court. Otherwise, beit din expects to rule in abstentia based on the material pl has presented.

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Tishrei 20 ,5781


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bat RMoshe Zev a”h.

Tamuz 10 ,5774


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Sebbag, z"l


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Iyar 18 ,5779


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Av 4


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Adar 28, 5781


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