Q & A 

A. If you have been invited to attend a Din Torah, it is mandated by Halacha that you appear and defend yourself. This requirement is because only a third party can objectively determine the claim that you have wronged your fellow and decide whether you are required to make amends. [Though cognitive biases can be beneficial in certain fields such as business, finance, and management, they, unfortunately, hinder objective analysis of interpersonal dissonance.]

Having to appear before a Beis Din shouldn't be a source of anxiety for you, especially if you've only shown kindness towards this individual. If you have acted within your rights, the Beis Din will rule in your favour. On the other hand, even if until now you have done nothing wrong, refusing a Din Torah request is in itself a violation of Halacha. 

A Din Torah is the only Halachicly acceptable forum to absolve oneself of gossip.

A. Unless both the claimant and respondent belong to the same constituency (i.e. they live in the same area where a Beis Din Kavuah (a democratically elected Beis Din - Responsa Igros Moshe Ch"M 2:3) has jurisdiction), the respondent can reply that he prefers a different Beis Din. If his suggested alternative is within reason, the Beis Din issuing the Hazmono will instruct the claimant to either accept the alternative or opt for a Zablo (which is an arrangement where each party chooses one arbitrator, and the two arbitrators choose a third). A well-known self-appointed Beis Din is no more authoritative than one that is less well-known. Most Batei Din today (if not all) are self-appointed and cannot claim exclusive jurisdiction. 

You will sometimes see a Beis Din refer to itself as "recognised" or it will assert this qualification as a prerequisite to arbitrate. For example, The Federation's website states: "A Din Torah is a hearing of a dispute in front of a recognised Beis Din (Jewish court), in accordance with Jewish law." More accurately described, however, a Din Torah is a hearing of a dispute in front of three (3) individuals who profess knowledge of Halacha and are agreeable to conduct the hearing accordingly (cf. Shulchan Aruch Choshen Mishpat 3:1).

A. If the two arbitrators cannot agree on a third and both parties reside in the same locale, the original local Beis Din maintains the authority to arbitrate (cf. Ramo Choshen Mishpat 13:1 and Shu"t Ramo 104), in line with the principle of "Nizkokin Latoiveya Tchilo" (Bobo Kama 46b, "We attend to the claimant first." cf. Choshen Mishpat 24) and "Eved Loiveh L'Ish Malveh" (Misheli 22,7, "the borrower is a slave to the lender" cf. Shu"t Ramo 104). If the parties reside in different locales, the arbitration takes place in the respondent's locale (Ramo Choshen Mishpat 14:1). Accordingly, for convenience purposes, the second Beis Din might be asked to arbitrate. 

If the two chosen arbitrators cannot sit on the same panel (e.g., they are related), the respondent has the upper hand, and the claimant would have to select a substitute (cf. Shu"t Ramo 104).

A. Since you are not the one initiating secular court proceedings, you don't have to request Halachic permission to defend yourself in court. 

However, if you inform the claimant of his Halachic requirement to attend Beis Din instead, he might accept the invitation and cancel his claim in secular court. Also, if he ignores you and the Beis Din then accords you a Heter Arko'os (Halachic permission to take the matter to court), you would be entitled, halachicly, to the costs component awarded by the Court should you win.

A. As I'm sure you can appreciate, there aren't two Halachic systems, one for ordinary people and another for the elites. Attending Beis Din is a Mitzva, and it should be done with alacrity, not hesitation. If you will be away on the proposed hearing date, you should inform the Beis Din that you would agree to attend Beis Din at a different time.

[The individual rabbis with whom you have spoken might be unqualified in this area or, worse, they could be biased towards you. This is why rabbis of Synagogues generally do not involve themselves with Dinei Torah. A pulpit rabbi must be friendly and supportive of his congregants and financial supporters, which could on occasion impair his ability to offer honest and unbiased advice in matters of dispute.]

If you refuse to defend yourself before Beis Din, the claimant would receive a Heter Arko'os (Halachic permission to take the matter to court), and you could end up wasting a lot more time and money defending yourself there.

A. You shouldn't feel bad or guilty for having to request the intervention of the Beis Din to mediate or arbitrate again and again.  It's their raison d'être. And the chances are that the sooner the parties request assistance, the easier it will be to reach an outcome that they will be happy with.

A. A seasoned Dayan will never force you to compromise (see Urim 12:4), nor will he instruct you to run your business differently if you are trading within your Halachic rights. His role as arbitrator is to determine whether, objectively speaking, Halacha mandates a change.

The Dayan might ask you to compromise (cf. Shulchan Aruch Choshen Mishpat 12:2), but you would be within your Halachic rights to insist on "Din" (the strict letter of the Law). For more on this, see here.

Answer:

I understand your frustration. According to the Chasam Sofer, cited by Pischei Teshuva Choshen Mishpat 9:5, if a knowledgeable scholar (Talmid Chochom) is capable of serving as a judge, it is his responsibility to prioritise that duty, even if it means cancelling a Shiur (lesson), and he should not charge any fees to the parties involved. In this case, not only did the Beis Din disregard the halacha you mentioned, but it also compounded the issue by dishonestly informing the claimant that you were unwilling to participate in a Din Torah (religious court proceeding). This action of spreading false information (Moitzi Shem Ra) is a serious transgression. Additionally, by suggesting that the claimant pursue the matter in Arko'os, the Beis Din placed an obstacle before someone who may not have the necessary knowledge or fear of Heaven. [In Judaism, there is a principle known as "Lifnei Iver" which is a Hebrew term that refers to the prohibition of placing a stumbling block before the blind. This concept prohibits intentionally misleading or endangering others, whether it involves leading someone into sin or allowing them to proceed without awareness of potential harm or culpability. The origin comes from the commandment וְלִפְנֵ֣י עִוֵּ֔ר לֹ֥א תִתֵּ֖ן מִכְשֹׁ֑ל וְיָרֵ֥אתָ מֵּאֱלֹהֶ֖יךָ "Before the blind, do not put a stumbling block" (Vayikra 19:14).]

Although this might not be too practical, in technical terms, you could summon the Beis Din to a Din Torah, as no one is exempt from the authority of the Law.

Changing the system will take time. In the meanwhile, try finding a Beis Din that will adjudicate without cost, or consider paying their fees (cf. Bechoros 29a). Litigation is usually a lot more stressful, and costly.

[*Update: The Beis Din was contacted and made aware of the above, and immediately retracted as follows:

Dear ******, 

Please be advised that Hazmana File # 2079 has been cancelled.

Please take note any mention or reference to your being Mesarev Din has been rescinded.]

Answer:

In order for advice to be considered Halachic, it must be rooted in Jewish Law. However, the guidance provided to your neighbour, unfortunately, is erroneous. When a Beis Din sends a Hazmono, they possess the authority to impose a Nidui (a ban or excommunication) on an individual who refuses to comply with the summons. The purpose of this Nidui is to serve as a punitive measure against the recalcitrant individual for showing disrespect towards the Court.  But the obligation to accept the Hazmono and attend a Din Torah is established when an individual is informed that there is a claim against him and is requested by the claimant to appear before a Beis Din. If the individual refuses to attend, a Heter Arko'os (Halachic permission to take the matter to secular court) document may be issued. For more on this topic, see here.

Nevertheless, you could consider applying for a Hazmono through a Beis Din, albeit it will not guarantee a better result. 

To apply for a Hazmono through Mehadr Beis Din Tribunal, please see here.

Answer:

You, as the respondent, are under no obligation to accept a hazmanah that conditions your participation on payment. Nor are you required to propose an alternative Beis Din, and you are certainly not obligated to participate in a Zablo where the boirerim are partial. Consequently, at present, you are under no halachic obligation to enter into a Zablo.

If the Beis Din issuing the hazmanah chooses to offer its services free of charge, your options would then be to:

1. accept the invitation,

2. attempt to secure the claimant’s agreement to an alternative Beis Din, or

3. insist on a Zablo.

In that scenario, you may insist on a halachically proper Zablo, in which both boirerim are impartial.

Regarding the rabbi you referenced: he cannot serve as a borer once he has received payment from one of the parties, unless the opposing party explicitly consents. Similarly, he may not act as a to’en without your agreement, as representation in Din Torah requires the mutual consent of both sides.

If, after you have clearly explained this to the Beis Din, its members nevertheless issue a Heter Arko’os, they would be in violation of multiple biblical prohibitions.

See Sema, Choshen Mishpat 7:20 (and Be’er HaGolah there), which states that if a Borer is disqualified by Torah law—such as being a close friend of one of the parties or receiving a bribe—he remains invalid even in a Zablo arrangement. See also Rashi, Sanhedrin 23a s.v. “Yatza din emes le’amito,” Sema 13:6, and Tumim 7:19, who laments:

“In our times, a Borer often exerts all efforts to justify the party who appointed him, whether rightfully or wrongfully, and even teaches him false claims—on account of which the Torah is desecrated and justice perverted.”

A Borer who accepted a wage from his appointer cannot help himself but do exactly that.

The argument that it is “common practice” (minhag pashut) for each Borer to be partial or to accept payment from the party who appointed him is without halachic basis. There is in fact no uniform practice in this regard. Some arrange Zablo proceedings so that each Borer is paid by his appointer; others require both parties to share equally in each Borer’s fee; and others conduct the Zablo in the proper halachic manner—where all Borerim are qualified dayanim acting with complete impartiality, as required by Shulchan Aruch.

Even were one to contend that a fixed minhag has been established—which, as noted, is not the case—the poskim (Nos’ei Keilei HaShulchan Aruch) have unequivocally ruled that a corrupt or improper minhag isn't followed. As stated by numerous Rishonim and Acharonim at the beginning of Bava Basra, and codified in Shulchan Aruch Choshen Mishpat, “אין הולכין אחר מנהג גרוע” — a flawed custom is not to be followed, aside from matters of taxation.

It is therefore of particular relevance that it is universally accepted under halacha that each borer must be qualified to adjudicate and must be free of bias or financial inducement, as affirmed by all God-Fearing halachic authorities. And even were there to exist certain lenient opinions suggesting that either party might insist upon maintaining the corrupt minhag, the nitva may, in any event, assert kim li in accordance with the opposing and authoritative view.

Accordingly, the claim of “common practice” cannot override the halachic requirement that all Borerim be impartial, unbribed and righteous.

The issuance of a Heter Arko'os in this situation could reasonably lead to concerns about the objectivity of the process, including whether personal relationships or improper incentives may have affected the decision-making. 

Regrettably, many Batei Din today appear to be influenced by financial considerations rather than guided by an unwavering commitment to justice and truth. 

Any misrepresentation of the said Beis Din to the claimant that you were unwilling to attend a Din Torah, or the dissemination of false information (Motzi Shem Ra), constitutes a grave transgression. By advising the claimant to pursue the matter in secular court (Arko’os), they would also cause others to stumble, violating the Torah prohibition of “Lifnei iver lo siten michshol” (“Do not place a stumbling block before the blind,” Vayikra 19:14). This forbids misleading or enabling others to sin or to act without proper awareness or fear of Heaven.

In principle, you are entitled to summon that very Beis Din to a Din Torah, as no individual or institution is above the jurisdiction of Torah law. Should they refuse to appear, you would be entitled to obtain a Heter Arko’os authorizing you to pursue an action for defamation in civil court.

Answer:

I have responded to Rabbi Kirsh on your behalf as follows.

Rabbi Kirsh,

With due respect, the inability to acknowledge the flaws in the commonly employed Zablo model does not stem from any lack of rabbinic insight. Rather—as the Torah warns—“bribery blinds the eyes of the wise and distorts the words of the righteous.” The financial structure of the current system creates pressures that compromise impartiality and, in practice, enable and even incentivize extortion. The need to preserve the industry and its revenue stream is being used—perhaps even subconsciously—to override the explicit Halacha in Shulchan Aruch, Choshen Mishpat 9, as well as the extended ruling of the Alter Rebbe, who unequivocally classifies such conduct as improper and akin to theft and extortion.

Allowing a respondent to search for three alternative Batei Din does not cure the underlying impropriety. It is reminiscent of the dynamic in Melachim I 19:17—“He who escapes the sword of Hazael shall Jehu slay, and he who escapes the sword of Jehu shall Elisha slay.” 

It is undisputed that the popular Zablo arrangement is halachically deficient. Rav Wosner ז״ל explicitly ruled that a standard Beis Din—without partial Borerim—may be insisted upon by either party. All the more so, a proper Shulchan Aruch–style Zablo, as described by the Rema, is preferable* and may certainly be insisted upon.

This leaves three possible structures. Mr. ***** [the respondent] insists on the highest and most halachically sound option. By contrast, Rabbi **** [the claimant] and yourself permit insistence on the lowest and most problematic option—contrary to the ruling of Rav Wosner and in disregard of the rights of the nitva, whose position is, halachically, stronger due to the principle of kim li.

Although you have not explicitly mentioned a Heter Arko’os, the implication created by sending three Hazmanos is unmistakable. You are hereby notified that should you proceed to issue a Ksav Siruv or Heter Arko'os, you will be violating numerous biblical prohibitions.

Furthermore, a Beis Din that requires financial compensation is halachically incapable of issuing a Ksav Siruv (bill of refusal) or a Heter Arko'os (permission to pursue a claim in secular court) when a respondent ignores or rejects a Hazmono. Since the parties to a dispute bear no halachic obligation to compensate Dayonim for their lost income, issuing such ultimatums constitutes Gezel—extortion.

Furthermore, a Beis Din—whose very purpose is to uphold justice—must observe the highest standards of integrity. Any injustice on its part is therefore far more severe. And when such coercion is carried out under the guise of righteousness and justice, its gravity is magnified significantly.

In light of all the above, your assertion that the respondent is attempting to evade a Din Torah is particularly inappropriate and deeply troubling. Such a characterization is unfounded and unfair, especially given that I have already stated explicitly that if you are unable to accommodate a standard Shulchan Aruch–style Din Torah, I am fully prepared to arrange one—something I do regularly. To misrepresent the respondent as avoiding adjudication when he is insisting on the most halachically proper forum is not only incorrect but unbecoming of a Beis Din.

Sincerely,

--

Rabbi Shabsi Tayar

Dayan | Halachic Counselling

Mehadr Beis Din Tribunal