It was a privilege to interview Rabbi Yosef Rosenfeld, mazkir (administrator) of the
RYR: A bais din is a group of three dayanim
(judges) who hear cases and give decisions based on halacha for people who have
a dispute. Generally, the disputes that come to bais din are about
monetary issues or divorce issues. Jewish people have an obligation to resolve
their problems in a bais din rather than going to secular courts. This
is not just a custom but a very strong halacha.
The Shulchan Aruch uses very harsh language to describe a Jew who goes
to secular court. The
RYR: There are four parts to the Shulchan
Orach (Code of Jewish Law). A person who is proficient as a dayan
has to be an expert in Choshen Mishpat, which deals with monetary halachos and also in Even
Haezer, which deals with laws about marriage and divorce. A potential dayan
will also often get training under more experienced dayanim in order
to learn how to apply what he has learned to practical situations.
RYR: The Av
Bais Din of the
In the process of
selecting a panel of dayanim, the
litigants choose a number of names from the list of dayanim. I then contact the rabbanim to see who is available to
serve on that particular case.
The rabbanim
who are selected serve as volunteers. The only fee is a $75 filing fee that the
tovea (plaintiff) pays at the
beginning of the process. After that, the whole process is done as a community
service, with no other fees assessed on the litigants.
RYR: Sometimes the litigants can decide to go
to just one Rav to get a judgment rather than to a bais din of three.
This is more common in cases of smaller amounts of money.
RYR: The litigants may voluntarily agree to
create an ad-hoc bais din, called a Zabl”a. It is often not
practical, because a Zabl”a lacks the
organizational structure of a bais din by its nature.
RYR: I am the person who is called when
somebody wants to have a din Torah. My job is to first listen to the
party filing the claim and clarify what is the issue of dispute. I then contact
the defendant and notify him/her that someone has filed a claim against them.
If the parties are not able to reach an agreement before the din Torah, then we schedule a din
Torah.
Sometimes the
parties are willing to try to reach an agreement, and I will work with them so
that it will not be necessary to have a din Torah. I have training as a
mediator, and I put that to use when the parties are interested in pursuing the
mediation process. This also reduces the number of cases that need to be heard
in Bais Din, so that those cases can
be scheduled more efficiently.
Rabbi Simcha
Shafran, zt”l, was the mazkir before me. I took over close to
five years ago.
RYR: Most of the time he does, but sometimes
he may recuse himself from the case if he has a connection with one of the
sides.
RYR: Before every din Torah, the parties sign an arbitration agreement. This is a
legally binding document, and can be used to enforce the judgment of Bais Din in civil court. By signing the arbitration
agreement, the parties are committing to adhere to the decision of the Bais Din. The arbitration agreement
gives some parameters that govern the din
Torah. It also stipulates that the din
Torah will follow the procedures of the
The hope and
expectation is always that, if a party is found to be liable, he/she will
accept the decision and will make good on payment or execution of what is
expected from him/her according to the psak
(decision) of the Bais Din. However,
if a party does not comply, the Bais Din may
give permission to the other party to enforce the psak in civil court. The civil court recognizes the decision of the
Bais Din based on the fact that both
parties accepted and signed the arbitration agreement.
RYR: The Bais Din can judge either
according to strict halacha, or they can give a ruling called a peshara, which is a compromise based on halacha.
The arbitration agreement allows the Bais
Din to decide whether the Bais Din will
use din, strict halacha – or peshara, halachic compromise, depending
on which is more appropriate.
RYR: In terms of the first question, the answer
is yes. Litigants may bring a lawyer to counsel them. The role of the lawyer is
not to present the facts of the case but to assist the litigant so that the
litigant can present his/her case in an organized fashion. We have found many
competent lawyers who understand how a bais din works and are helpful to
the litigants in presenting their case. It should also be noted that one of the
secular rules governing the legality of the arbitration process is that both
sides in an arbitration hearing have the right to counsel.
In terms of the
second question, a to’ein is a person who typically is not a lawyer but
is experienced in helping his client in bais din. To’anim are more common in batei
din outside of
RYR: It is almost inevitable that the losing
party will be unhappy with the bais din,
even if the bais din was 100% perfect
in its handling of the case. That is a function of a system where a judicial
body is forced to decide in favor of one party and against the other. It is
also a good reason to encourage the parties to engage in mediation and make an
agreement, because then there is no need for a decision; rather, the parties
themselves govern the resolution.
It is also the
responsibility of the bais din to
carry out its mission with professionalism and integrity. That means that the bais din must be responsive to the
litigants, treat them with respect, investigate the situation to uncover the
truth, and issue decisions that are based on integrity to halacha and the facts
of the case.
The Procedures Document,
which was mentioned before, is also very helpful because it gives the litigants
a formal system that governs the operation of the
Before the
hearing, I try to educate the litigants about the process and spend the
appropriate time answering any questions that they have. When I took training
in mediation, I had a trainer whose motto was “Better process, better outcome.”
RYR: This issue is most relevant for the
divorce cases which we handle, which are more sensitive than monetary issues.
Going to bais din can be very
intimidating for a woman, especially in divorce situations. The dayanim encourage the women express
themselves fully and to take any measures that will make them more comfortable.
For example, we encourage women is these situations to attend the bais din session with someone who can
serve as an emotional support, such as a family member or good friend. It is
important that the litigants feel comfortable and are able to express
themselves effectively in order for the bais
din process to run smoothly. They are also more comfortable with the
outcome if they felt comfortable and in control throughout the process.
I offer to make
time to speak to both the man and woman to explain the bais din process and try to answer their questions. After speaking
with them I hope they gain some sense of trust.
RYR: Yes, it is very true that we are blessed
with a community where the rabbanim
work together. This can help because rabbanim
are able to collaborate in order to bring resolution to issues so that they do
not need to come to bais din. It also
helps the Bais Din to get cooperation
from the litigants, because the rabbanim
support the local bais din system.
RYR: If a Jew and a non-Jew have a dispute,
and the non-Jew agrees to go to bais din,
then bais din will hear the case.
Usually, the non-Jew will not want to go to bais din, so the Jew will
get permission to go to court.
RYR: The halachic jurisdiction of the bais din is determined by the location of the nitva, (defendant). That means that if the defendant lives in
Rabbi Yosef Rosenfeld, the administrator of the
