ENSURING ENFORCEABILITY OF BEIS DIN'S JUDGMENTS

INTRODUCTION

What can we do to ensure that the judgments of Beis Din will be enforced? How do we make our Jewish justice system accessible to the Toronto area community?

Briefly and to the point, let me give the answers: There are halachas that apply to the proper conducting of a din torah. These halachas enshrine what we secular lawyers call "due process" or "natural justice". If we "get it right" and if we afford some modest recognition to some procedural matters mandated by Ontario’s Arbitration Act, then should have very little problem with enforcing our judgments. And, more importantly, we will not be transgressing any elements of Jewish law either!

Aside from proper procedures, there are two associated requirements that we need in Toronto: 1. Accessibility to the system; and 2. Education.

But first let me tell some stories.

STORY #1: (Hellman v. Wolbrom,¹)

There once were two yiddishe partners in a wholesale egg company. They had a machlokes so off they went to their local Orthodox Rabbi. They did not clearly lay out what mode of dispute resolution within halacha was to be used: Was it according to the strict letter of the law - din? Or was it supposed to be on the basis of p’shara or compromise? They did not sign a written Arbitration Agreement as contemplated by their own Partnership Agreement or as contemplated by New York State law. The hearing was conducted in a somewhat hefker manner. One party claimed to not having received the Rabbi's written judgment. What did the New York court do with the Rabbi’s psak? They threw it out!

STORY #2: (Mikel v. Scharf,²)

A corporation (the tenant) signed a lease with a partnership (the landlord). (In both New York and Ontario law, corporations and to some extent, partnerships, have separate legal identities from their shareholders and members.)

Some dispute arose; the details are not important.

A minor partner of the landlord had a summons issued to some of the shareholders of the tenant to come to Beis Din. The shareholders claimed that they were not proper parties to the Din Torah and appeared before the Beis Din solely to dispute the jurisdiction of the Beis Din to rule. The Rabbis had appeared to accept this at first.

In this case, they did sign an Arbitration Agreement which the Rabbis represented only dealt with the jurisdiction issue.

The shareholders’ lawyer was thrown out of the first meeting and was excluded from subsequent sessions.

The Rabbis refused to accept some documents that were tendered.

Beis Din referred to the petitioner's financial means, which showed the rabbis were far from being impartial.

Part of the ‘hearing’ took place in private absent some of the shareholders.

STORY #3: (Meisels v. Uhr,³)

Some partners had a falling out.

The two sides, with their lawyers, met with a Rabbi and signed an "Irrevocable Consent to Arbitrate" whereby they agreed to submit certain unspecified disputes to a tripartite Rabbinical Court. Hearings were held. Various orders were made and then the dissatisfied litigant moved before the New York court to vacate the arbitration award, claiming that the Beis Din had exceeded its jurisdiction.

What happened? At the first level of court in New York, the judge examined the arbitration agreement very carefully. He concluded that the agreement was too vague, that it failed to properly identify the issues or disputes to be resolved; he overturned the p’sak. Two appeals followed. There, the conclusion was just the opposite. The agreement was not vague and the parties had continued in a process of their own choosing. The p’sak was upheld.

STORY #4: (W v. W,⁴)

A Toronto couple who were embroiled in a costly and protracted bit of divorce litigation went to New York behind the backs of their lawyers. They signed an Arbitration Agreement with a Beis Din in New York. Each side had its own toyen. A formal hearing was held and a p’sak was rendered in writing. The wife would not implement the p’sak. The husband applied to the Ontario Court to summarily enforce the Rabbinical Court judgment.

What happened? First of all, the court here did not hesitate to investigate whether or not the wife had the legal capacity to instruct counsel before Beis Din (finding that she did, in fact, have such capacity or that she was otherwise protected through family intervention and assistance of a rabbinical pleader).

Secondly, the Ontario Court reviewed the reasonableness of Beis Din's judgment, remarking: ⁵

There being, then, no evidence before me that the judgment of the Rabbinical Court was improvident, I would then hold that the parties, as is their right, have submitted to a forum of arbitration by which they had agreed to be bound, and that, therefore, it is appropriate to grant summary judgment upon the judgment of that arbitration forum, namely, the Rabbinical Court in New York.

While the result was favourable in terms of summary enforcement of Beis Din judgments, the approach of the judge indicated that the decision could have been otherwise if:

(1) the wife's interests had not been fully represented and protected before the Beis Din; or,

(2) the judgment itself had offended the civil court's own notion of what was fair and reasonable under Canadian law.

Therefore, this judgment clearly demonstrates that while due deference will be afforded to the Beis Din as an arbitration tribunal, likewise the civil court will not hesitate to scrutinize Beis Din's internal procedures and reasonableness of its judgments.

In Canada at least (and I have no reason to believe that the situation would be any different in the U.S.), I suggest that if Beis Din were to depart markedly from Canadian (or American) standards of fair play for all elements of society or Beis Din were to deny to a litigant his right to legal counsel, then surely Beis Din's judgment could and would be struck by the civil court. This has implications for the status of testimony from women⁶ and non Jews, a problem that must be addressed in a halachicly acceptable manner while not infringing upon common law standards of proper judicial procedures.