Jewish Law Logo Jewish Law - Examining Halacha, Jewish Issues and Secular Law
Ensuring Enforceabiliy of Beis Din's Judgements
Yechiel (Gene C.) Colman

ENFORCEABILITY: The Beis Din must have the power and inclination to use all legal means at its disposal to enforce its judgments. What remedies are available within the Torah justice system? Also, there will still be occasions when one party will not want to implement the p’sak: there will be occasions when the dissatisfied party will move to set aside Beis Din’s rulings and there will be occasions when someone just does not implement and the innocent party will have to apply to the secular system to implement the p’sak.

Where the p'sak is sought to be enforced against a member of the Orthodox community, there are some very persuasive options open to Beis Din, if Beis Din will only use those measures.

In his article entitled, "Batei Din vs. Secular Courts", published in The Jewish Observer, January 1993, Chaim Dovid Zwiebel argues that the community itself is called upon to play a major role in upholding the honour of batei din and enforcing their judgments. He notes that the Agudas Yisroel movement has adopted some internal guidelines designated to isolate any person against whom there is an outstanding p'sak siruv l'din. Such an individual forfeits his right:

(1) to be a member-in-good-standing of any Agudah branch shul;

(2) to be called to the Torah for an aliya;

(3) to be a shaliach tzibbur;

(4) to host any kiddush or simcha;

(5) and the individual is to be explicitly advised that he is not welcome in the shul.

If someone can face these sanctions for failing to come to Beis Din, how much more so should more stringent prohibitions be imposed for someone who fails to implement the judgment of the Beis Din!

In order to avoid court challenges, the first priority must be to establish the political legitimacy of the Beis Din system. At the moment, the system in Toronto, for example, is ad hoc, with no permanent judiciary in place, as there is London, England. The dayanim who serve now do so on a voluntary basis. And, there is very little reward for their untiring efforts. They may know the litigants, their families, their friends - all of whom could possibly be contributors to community causes or shuls. No matter what the decision, there is likely to be broygis. While it is unthinkable to suggest that any particular Rav serving as a dayan would in any way be so influenced, one cannot ignore the popular perception that Beis Din is currently subject to political pressures.

Political and practical legitimacy can be established only through the installation of truly arms length dayanim, as is the case in London, England. The thankless job of judging cases must be removed from our learned rabonim (who in any event already entertain a full plate of responsibilities in their own shuls and in the wider Jewish community) and given over to trained dayanim. These dayanim must be paid a salary commensurate with their important positions. Clearly, extensive funding will be required.

We must avoid the problems that have plagued the American Jewish community where decisions of Rabbinical Courts have been challenged - sometimes successfully, sometimes not. The mere fact of a secular judicial challenge already represents an embarrassment for the Jewish community and a possible source of secular interference in and secular interpretation of our own Jewish laws, chas v'sholom. Therefore, we must construct our system and design our own Arbitration Agreements to avoid the problems experienced elsewhere.

Procedural Requirements

In order to ensure enforceability of Beis Din’s judgments, certain procedures must be adhered to. Here are my recommendations:

1. The system must function in such a way so as to insulate itself from successful judicial review and challenge (including appeals) at the hands of the secular court. Adoption by Beis Din of any procedure which might later permit a party to argue that the litigants were not "treated equally and fairly", opens the Beis Din to court challenge.

2. Zablah should not be employed.

3. The Arbitration Agreement employed must take cognisance of the problems experienced in past cases.

4. The agreement to arbitrate should be in writing, clear on its face as to delineating all the issues which are being arbitrated, and should include a catch all phrase such as:

In addition, the Beis Din shall have the jurisdiction to rule on any other issues that may arise from the [breakdown of the marriage] or [contract between the parties] etc., provided that before making any decision, the Beis Din shall give to the parties the opportunity to lead evidence on such additional issue and to make submissions on that issue.

5. The mode of resolution should be specified - p'shara or din.

6. The arbitration must be conducted in accordance with the procedures stipulated in the Arbitration Act, 1991 to the extent that such procedures are not capable of being contracted out of under that Act. While most provisions of Ontario’s Arbitration Act can be superseded by the Arbitration Agreement itself, the Act prohibits the tribunal and the parties from opting out of certain provisions. These provisions go to the root of procedural fair play. [See Addendum.]

7. The lawyer should be permitted a role in Beis Din. Whatever that role is, it should be clearly described in the Arbitration Agreement. As part of that role, I recommend that lawyers should be allowed, as a minimum to suggest lines of questioning to the dayanim and even better, that lawyers be permitted to examine and cross examine witnesses.

8. Evidence must be received in a professional manner: Beis Din must receive relevant documents and evidence. All evidence should be heard in open court. Beis Din should not rely upon facts that are not relevant.

9. Beis Din must not ignore commercial realities such as corporations and their limited liability and protection inherent therein for shareholders and officers.

10. Any judgment of Beis Din must be expressed in terms that are easily understood, unambiguous, and enforceable in the civil court in the event one party will not comply. In order to ensure such enforcement, it is essential that all judgments be reviewed for style and intelligence of expression in English.

11. If Beis Din were to depart markedly from Canadian standards of fair play for all elements of society (eg. a woman's testimony will not be accepted in some situations) or Beis Din were to deny to a litigant his right to legal counsel, then surely the Beis Din's judgment could be struck by the civil court.

12. Exclude rights of appeal to civil court. Design and implement alternate procedures to afford due process in the event that one side is dissatisfied.

In the United States, there is at least one rabbinical arbitration panel that has dealt with the problems that I have discussed today in a most impressive, professional and at least on paper, thorough manner. The Beth Din of America was reconstituted in 1994. There is a June 1997 version of this body’s "Guide to Rules and Procedures" posted at its web site: http://www.bethdin.org/rules.htm. These Rules are deemed to constitute part and parcel of the parties’ formal submission to arbitration. Due recognition is given to the stringencies both of Jewish law as well as American law. Procedures are clearly laid out, especially in the area of due process where the Rules go to appropriate lengths to make certain that all parties have every opportunity to present their case. Abuses that many of us have heard of in the past and that have lead to striking down private arbitration awards by the secular courts, are cut quite short by the Rules. For example, Section 12 enshrines the right to legal counsel who must be "an attorney who must be licensed to practice law in any jurisdiction in the United States". Section 18 provides that "All evidence shall be taken in the presence of the Beth Din and the parties" and, "There shall be no ex parte communication between the arbitrators (dayanim) and the parties, or between the arbitrators (dayanim) and any witness unless the arbitration contract explicitly permits such activity."

The Rules of the Beth Din of America appear to address most, if not all, of the crucial issues relating to procedural fairness and due process. The Rules appear to be marked by a high degree of professionalism, procedural fairness to the parties, and safeguards against secular court challenge. Would that all rabbinical courts institute and follow such procedures!

In short, a revised system of Torah based justice must be premised on education of the lawyers and the public, revamping of the Beis Din administration, and implementation of procedures to insulate Beis Din from civil court challenge.

CONCLUSIONS

While the establishment of a full time panel of dayanim is not something that can be accomplished over night where a Beis Din kavuah does not exist, other recommendations could, if found to be appropriate, be relatively quickly implemented with little or no cost to the community.

If this community is inclined to consider any changes, it would be prudent to strike a committee of local rabbonim from across the Torah observant continuum, lawyers, accountants and others involved in dispute resolution to study the options and make decisions along with the appropriate community agencies which may be involved in funding.

I hope that this talk has helped to sensitize you, from the perspective of the civil law, to some of the issues involved within private arbitration by a Beis Din. Steps could ultimately be taken which would enhance the prospects of Beis Din's judgments being readily enforced and hopefully insulated from judicial challenge. We will have strengthened the institution of Beis Din in Toronto. We will have helped to prevent widescale chilul hasehm consequent upon yidden airing their machlokes in secular courts. We will have taken some steps to paying heed to Rashi who stated:

"do not bring the matter to their courts for one who brings law cases of Bnei Yisrael before [the courts of the] gentiles profanes the Name of Hashem. "

Page 3 of 3
1 | 2 | 3 | Addendum


Jewish Law Home Page


DISCLAIMER


Previous Page Article Index
Page 3 of 3
Next Page