Our system

Adversarial or Inquisitorial?

One the commercial advantages of having your dispute managed by 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 generally a less expensive option than going to Court. However, 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 halachicly considered "stolen" (for example if the judgement amount is greater than the amount the winning party is entitled to according to halacha (this can be because halacha does not recognise such a claim, or more commonly, because one may not be halachicly entitled to certain components of the award such as interest and/or legal costs)) 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 where Beis Din is an option.

Anyone can access Beis Din. Not only Jews.

If the parties signed a binding arbitration agreement, then legally once the Beis Din issues a ruling, the winning party could take the Award to Court to have it enforced.

The creditor however has a halachic duty to first give the debtor an opportunity to manage the debt outside of the secular legal system. If the debtor says that he is unable to fully comply with the Award, the matter is referred to Beis Din. The management process employed by the Beis Din is called Mesadrin and is described in Choshen Mishpot 97:23. Briefly, the debtor must hand over to the creditor all of his assets and commit to also hand over any future asset that comes into his possession (Choshen Mishpot 99:1. See also Shulchan Aruch Admur, Halvoh para. 5). He must also affirm this by taking an oath while holding a religious object such as a Sefer Torah (Rambam, Malveh 2:2. and 22:10. Choshen Mishpot 99:1) or after Kabolas Cherem (cf. Rambam Malveh 1:4. cf. Sefer Even Ho'Ozel, Nizkei Momon 8:10:3. Piskei Din - Yerusholayim, Dinei Momonos 1 page 94.)

If the Beis Din realises that it is unable to manage this appropriately (this could be due to certain legal restrains or because the debtor refuses to comply with the instructions he was given), it is obliged to grant the creditor a heter arko'os (halachic permission to bring the Award to Court) for enforcement (cf. Shulchan Aruch Admur Nizkei Momon para. 6 and Seder Hadin page 473-474).