The Beis Din system

Adversarial or Inquisitorial?

One the many commercial advantages of going to Beis Din is the system it uses.

In the adversarial legal system each party (or their representatives) takes opposing positions to debate and argue their case, whilst the Judge's role is to uphold principles of fairness and equality, to remain neutral until the very end when he gives judgment and to ensure that the dispute is resolved (relatively) efficiently and in accordance with the overriding objective of enabling it to deal with cases justly and at a proportionate cost. This contrasts with the inquisitorial legal system which sees the Judge take a much more active role in questioning witnesses and finding the truth.

Whilst the adversarial legal system empowers the parties to the dispute to take control of their own case and enables them to better present the merits of their respective positions, there is however a tangible, observable and manifest unfairness in situations where the parties do not have 'equality of arms'; a better resourced party may be more able to gather evidence and present a stronger case to the Judge than their opposition. Furthermore, because the parties have near complete conduct of the case from start to judgment, they are able to choose what evidence they put before the Court. In comparison, in an inquisitorial system the Judge is involved throughout the process and actually steers the collation and preparation of evidence enabling him to issue a more comprehensively accurate verdict.

Generally speaking, a Beis Din will use the inquisitorial system to achieve an accurate, efficient and fair outcome and comparatively speaking it is almost always an exceedingly inexpensive option than going to Court. Alternatively the parties can jointly request a hearing similar to that of court, and they could also bring lawyers and To'anim to argue on their behalf.

It should be pointed out that the most important reason a Jew goes to Beis Din is that halacha mandates it. Monies lost at a Din Torah is a blessing (cf. Sanhedrin 7a) whereas monies gained in secular court can sometimes be considered "stolen" and unfit for use (cf. Rabbi Akiva Eiger to Choshen Mishpot 26). This is aside for the general prohibition to voluntarily pursue or defend a claim in secular court.

Anyone can access Beis Din. Not only Jews.