The Time has Come for Uniform Beth Din Rules and Procedures — Part I
Daniel Retter, Esq.
(How to curb Beth Din abuse)
There is no denying that we live in a litigious society, and, moreover, litigation is no longer the dominant domain of the secular courts. As it had been the public policy of both the New York State legislature and the secular courts to encourage Alternate Dispute Resolution (ADR), an increasing number of disputes are now being resolved outside of the secular State and Federal Courts, and arbitration panels. One such ADR panel is the Orthodox Beth Din Tribunal, which Orthodox Jews are generally obliged to utilize to settle their monetary and marital disputes.(1)
Unfortunately, concurrently with this trend to resolve disputes before a Beth Din, there has also been a marked increase in attempts by the losing party to a Beth Din decision to try to vacate the Beth Din decision in the secular courts, due to alleged improper conduct, both procedurally and substantively (these terms are defined below), with the Beth Din’s knowledge and consent. In fact, the New York State Civil Procedure and Practice Law (CPLR), Article 75,(2) specifically gives the secular courts the right to vacate an ADR decision if it finds that the Beth Din’s conduct violated the statute.
Based upon Article 75, section 11, there has been an increasing number of secular court rullings vacating Beth Din decisions (both in matrimonial and monetary areas), which result in confusion and a lack of confidence in the Beth Din process in particular, and in the institution of the modern Beth Din in general.
If Orthodox Jewish litigants (or any party to a Beth Din litigation) are to have confidence in the institution of the Beth Din, we must examine the reasons for these recent secular court decisions to vacate Beth Din decisions, and immediately institute a process by which a Beth Din litigant can feel confident that his basic due process procedural and substantive rights will be protected, and that he will receive a fair and impartial decision in conformance with the Halacha and, at the same time, the laws of the State of New York.
Background to Beth Din Litigation:
It should be pointed out to the reader that there is no inherent conflict between Halacha and New York State law in the following context.
There are generally two facets to litigation. One is called procedural and the other substantive. The procedural aspect relates to the manner in which the proceedings are conducted. This would include (but is not limited to) impartially of the Beth Din panel, the right to counsel, the right to be heard, the right to question the opposing sides’ witnesses (either by the Beth Din or the litigant himself), the right that Beth Din not discuss the case with one side in the absence of the other (ex part) or that Beth Din rules on a matter which is within its jurisdiction, not exceeding the scope of the Shtar Berurin.(3)
The substantive aspect of litigation involves the law being applied to the facts of the case. An instance of substantive halachic violation which falls within CPLR Article 75 would be if the Beth Din decision is irrational, however. An example would be if the claimant asked for damages of $10,000, and proved $10,000 worth of damages, and yet the Beth Din awarded the claimant $100,000.
Thus, in a Beth Din forum, the procedural protection to be accorded to both parties are mandated by both Halcha and the CPLR whereas the Shulchan Aruch,(4) and its commentaries, are the source of the substantive law, rather than the laws of the State of New York.
It is axiomatic that every Beth Din proceeding must comply with both halachic and secular procedural requirements, yet apply Halacha only to the substantive aspect of the case, which is exactly the intent of the CPLR.
Once the parties have agreed to be bound by a Beth Din Tribunal, its decision has the full force of law as if the decision were rendered by a secular court. In accordance with the CPLR, the prevailing party can enforce the Beth Din decision by asking the secular court, within one year of the decision, to confirm the decision. Once confirmed, it is enforceable like any other secular decision. Bank accounts can be attached, liens can be place on property, and severe sanctions, including contempt, can by imposed on the party that refuses to comply with the Beth Din’s decision.
Actually, in one respect, the Beth Din’s decision is even “stronger” than the decision of a secular court, as there is generally no right of appeal from a Beth Din decision. It is final! The reason for this is that ADR is supposed to bring an end to litigation and allowing appeals defeats this purpose.
The only way a party can effectively appeal a Beth Din decision is if he can prevail upon the secular courts to recognize that one or more of the above four sections of Article 75 of the CPLR were violated (relating primarily to procedural defects in the Bes Din process). Thus, there is no appeal to a secular court, or even a higher Beth Din, arguing that the Beth Din may have interpreted or applied a halacha incorrectly. Although, technically, an aggrieved party can demand a “bameh dantyni hearing”(what was the basis of your decision), albeit before the very same Beth Din, nevertheless the effect of the Beth Din cannot be stopped. The prevailing party can have the decision confirmed by the secular courts if there was no violation of the CPLR Article 7511 requirements. Thus, the prevailing side can commence enforcement procedures immediately.
It becomes painfully apparent that there is simply no relief available to a losing party before a Beth Din, even if the substantive decision is abusive, but is not so abusive as to be considered by the secular courts as irrational. Since the Beth Din need give no accounting or “din vecheshbon” to any higher secular or religious authority, the parties are literally at the mercy of the potential whim, arbitrariness, or corruption of the Beth Din.
Generally, the secular courts will very reluctantly vacate an ADR decision, as it would encourage losing parties in every ADR decision to start the litigation anew in the secular courts. Secular judges will generally defer to the (ADR) decision and it is rare, indeed, that the secular courts would vacate or invalidate a decision based upon an alleged abuse or procedural or substantive law. Unfortunately, this judicial restraint has weakened, and recently, Article 75 Motions to Vacate are being increasingly granted to losing parties in Beth Din litigation, who have successfully claimed that Beth Din has not acted properly, resulting in a Chilul Hashem Chas Vesholom.
Moreover, there are Batel Din which fail to comply with even the minimum standards of Halacha and the CPLR, but manage to avoid public censure because the losing party is either unable to afford the exorbitant expenses of secular litigation, or because the very act of “appealing” a Beth Din as a violation of Halacha, and may subject the losing party to Beth Din sanctions which involve public humiliation and the like.
The sad truth is that Batei Din in the United States need give no accounting or “din vecheshbon” to any higher secular or religious authority, and the parties are literally at the mercy of the potential whim, arbitrariness or corruption of the Beth Din.
The current Beth Din System in the United States does not instill confidence in those members of the Jewish community who would be willing to settle their disputes according to Halacha, but are afraid to subject themselves to the Beth Din’s jurisdiction.
Accordingly, the time has come for a uniformly accepted mechanism to be instituted to protect litigants from Beth Din abuse, which will have the consequence of not only protecting the integrity of the Beth Din process, but will encourage litigants to utilize the Beth Din ADR process to resolve their disputes.
We would like to suggest the outline for such mechanism, recognizing, however, that without the full support of a “blue ribbon” panel of rabbinical and lay leadership of Orthodox, these suggestions cannot be implemented. Yet, with the support of these leaders, a new era in Beth Din ADR can be inaugurated which will be a model par excellence of how ADR should be applied, resulting in a Kiddush Hashem.
In order to set forth uniform rules which would govern all Beth Din proceedings, the reader must understand the dynamics of Beth Din’s power prior to the case ever being tried before the Beth Din.
If a plaintiff wishes to resolve a dispute through Beth Din, he need only ask a Beth Din to issue a hazmana (summons) to the proposed defendant, and the process has begun.
Even if the defendant has no desire to resolve the matter through ADR (and is not contractually obligated to do so), the Beth Din can bring to bear a sanction known as a seruv,(5) which cannot be restrained or prevented by a secular court under any circumstances. The secular courts have held, in numerous decisions, that the seruv is purely religious in nature, and is nothing more than “pressure”, (not duress, a legal term), and is effective only because the recipient of the seruv is a member of a religious sect, and is affected by it due to peer pressure and embarrassment. Although the seruv is a painful and humiliating religious document, it is precisely because it is a religious document, with no force of secular law, that the secular courts will not and cannot prevent it from being issued.
Thus, as long as a Beth Din has the ability to issue a seruv, which is recognized and respected by the Orthodox rabbinate and laymen alike, it is virtually impossible to rein in a Beth Din, even if the Beth Din has not in the past, or will not in the future, conduct itself under CPLR and procedural halachic rules. This issue of the seruv power of any given Beth Din begs the question: What constitutes Beth Din in the first place? (To be continued…)
1. See Shulchan Aruch Choshen Mishpat, Ch. 26 (a).
2. CPLR § 7511. Vacating or modifying award
(b) Grounds for vacating. 1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds the rights of that party were prejudiced by: (i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral; except where the award was by confession; or (iii) an arbitrator or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect ad without objection.
The courts have held that this includes an “irrational” decision.
3. A Shtar Berurin is the Arbitration Agreement entered into between the parties and the Beth Din, defining and limiting the parameters of the dispute over which the Beth Din shall have jurisdiction, and issuing its Psak (ruling) accordingly.
4. Jewish law is codified by the Sulchan Aruch, The Code of Jewish Law by Rabbi Joseph Caro.
5. A Seruv is a document issued by Beth Din after a party has ignored three hazmanot, which publicly announces that the non-appearing party had defied and insulted the Beth Din. It demands that he should be ostracized and excommunicated from any social (shidduchim) or commercial dealings, and this proclamation is generally published in Jewish newspapers, and posted in shuls throughout the area frequented by the Seruvee.
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