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IS THERE? a Number of Reasons Family, Business, & Jewish Life Through the Prism of Halacha VOLUME 5779 • ISSUE XVIII• PARSHAS MISHPATIM • A PUBLICATION OF THE BAIS HAVAAD HALACHA CENTER Some batei din still will attempt to ascertain The ‘ORDER IN that the written hazmana arrived at the cor- rect address. on the THE COURT!’: Prior to issuing the hazmana, the beis din needs to hear some facts about the case for Bring the Parsha to Life! IS THERE? a number of reasons. Firstly, the hazmana must include the name Adapted from a shiur by Rav Yosef Greenwald on The Din Torah process in Parshas Mishpatim contemporary times of the tove’a, and the basic subject of the case. A defendant must be informed who is Adapted from a shiur by Rabbi Dovid Englander Eved Ivri and The Torah’s Message making the claim against him so that he may for Employees seek resolution or prepare a defense. והגישו אדוניו אל האלוהים והגישו אל הדלת או אל It is not uncommon for people to question the beis din’s procedures, action, and motives, es- Sometimes, the beis din will require that the המזוזה ורצע אדוניו את אזנו במרצע ועבדו לעולם pecially when they are first exposed to a beis hazmanah must specify the amount or the (שמות כא:ו) din as a party to a case. The first step toward item being claimed, so the defendant can understanding how and why a beis din acts Halacha recognizes two types of workers: is to attempt to see things from the perspec- choose to pay up to avoid the indignity of go- tive of a neutral party. As simple as this may ing to beis din. Po’el – Employee paid by the hour, e.g., an of- sound in principle, it is quite difficult to put fice manager hired for a 9-5 job into practice. The beis din must also make sure that the plaintiff has the authority to make the claim. Kablan – Employee paid by task, such as a con- A beis din is duty-bound to resolve the mat- tractor hired to build a deck ter without unnecessary delay. But for proper The beis din may also want to be sure that the The Gemara (Bava Metzia 77b-78a) rules that resolution, both sides must appear in court case is appropriate for this beis din. Imagine a po’el may sometimes quit a job after begin- to present their case in the presence of each if, at some point in the din torah, a litigant ning it due to the principle of ki li Bnei Yisrael other. For this purpose, the beis din will sum- were to discover that one of the dayanim also avadim stated concerning eved ivri — we are mon the opposing party to appear so they provides kashrus certification to a business servants to Hashem, and not to other humans. may address the claim. owned by his opponent. A beis din must be careful to avoid even the appearance of par- He may quit even in the middle of the day. When one turns to a beis din to resolve a tiality. In such a case, they may be referred to claim, it will summon the defendant to ap- He must be paid for the work that he did al- a different beis din. pear before the court to address the plaintiff’s ready. The hazmana process has a built-in sched- claims. If his leaving will cause a loss (e.g. a time ule to ensure that it is followed up with. Each Essentially, a hazmana is but a relaying of sensitive job for which there is no hazmana features a date and time, usually the dayan’s order to appear and respond to one else to replace him), he may about ten days from when it is being sent. a claim. In Parashas Korach, Moshe sends a not quit. If no response is received by the end of the messenger to summon Dasan & Aviram to A kablan may general- time of the appointment on the hazmanah, appear before him. From here the Gemara ly not retract with- a second hazmanah can be sent out. derives the proper procedure of summons out complet- spotlight Although the recipients are obligated to com- to beis din. To avoid the appearance of par- ing the Session II in Halacha ply with the first hazmana, the prevailing tiality toward the plaintiff, a shaliach, rather job. Seminar Series for Attor- custom is that the beis din sends a second neys than the dayan himself, will approach the de- (continued fendant in person and summon him in the and third hazmana before declaring him in on back) What language in a document makes it enforceable in bais din? name of the dayan or beis din. contempt. But it should be noted that one is still not permitted to simply thumb his In our day, instead of a messenger, the cus- These and other business halacha questions nose at beis din by flouting a first related to the real estate industry were the fo- tom of batei din is to issue a hazmana writ hazmana. cus of the second shiur in the Bais HaVaad series for and to rely on the postal authority for delivery. lawyers presented by Dayan Shmuel Honigwachs. (continued on back) Don’t miss our upcoming Business Halacha Journal topic on Ribbis. Don’t yet receive it? Visit www.thehalachacenter.org/signup, call us at 1.888.485.VAAD(8223) or email us at [email protected] (continued from front pg.) l’din, the beis din may issue a heter arkaos, If they do respond, they can ask for the case which is a license to bring the matter before a to be heard in another beis din. If, after some The secular court. time, the defendant has still not scheduled a The entire hazmana process can take any- din torah with the other beis din, the plaintiff in can ask their chosen beis din to resume the where from a few weeks to several months, de- hazmana process, or you can return to the pending on how compliant the defendant is. first beis din. If that sounds like a long time, keep in mind Bring the Daf to Life! The defendant may request a change of date that if one were litigating in secular court he if he needs it. According to halacha one must would still be months or even years – and hefty מסכת חולין give a valid reason for postponement but as legal fees – away from a trial. He would have to long as one is acting in good faith, beis din will hire an attorney to serve and file a complaint, try to accommodate. to which the opponents would be given three weeks to respond. If the plaintiff survived their With the third hazmana, the beis din will This Week's Topics Motion to Dismiss, he would wait again for usually issue a warning that it is the final preliminary conferences to fight over the dis- RAV AVRAHAM YESHAYA COHEN hazmanah and that failure to respond may covery process. Then, months of discovery can result in a seruv. The seruv is a grave declara- ROSH KOLLEL OF KOLLEL OHEL YITZCHOK OF LAKEWOOD easily stretch into years of depositions, inter- tion, conveying to the entire community that RAV YOSEF GREENWALD rogatories, subpoenas, delaying tactics and all the recalcitrant party is a mesarev l’din, and DAYAN, BAIS HAVAAD YERUSHALAYIM sorts of shtick. Then, if the case makes it past should be treated with all attendant conse- RAV SHMUEL BINYOMIN HONIGWACHS Summary of Judgment intact, it would go on quences. It is a punitive instrument of enforce- DAYAN, BAIS HAVAAD LAKEWOOD pretrial order. The protracted trial still hasn’t ment that most batei din use very judiciously, begun, and the litigants have already expend- so as to preserve its weighty significance for THE KOSHER ANIMAL LIST דף ס"ו ed a significant portion of their life and fortune only the most compelling instances. If a liti- on the legal process. ?ARE THERE WORMS IN YOUR FISH דף ס"ז .gant feels a seruv is in order, he may request it As justice systems go, you’re in the fast track Alternatively, since the defendant is a mesarev BEN PAKUA: A DOUBLE STATUS דף ס"ח .with beis din WALLED CITY: THE FUNCTION OF דף ס"ט (continued from front pg.) Pischei Teshuva – A rabbi may sign with his YERUSHALAYIM’S MECHITZOS If the worker community for longer as long as he may still SURROGATE MOTHERHOOD IN דף ע' The was paid up on the quit in the middle. front before he HALACHA Bring the Parsha to Life! The message for us: ?WHAT IS KEDEI ACHILAS PERAS דף ע"א -began work ing, may he still Our true job in life is to serve Hashem, our em- THE BERACHA OF A BEN PEKUA דף ע"ב Bais Horaah quit? ployment is simply the means to maintain a Hagahos Maimonios – Only if he has money livelihood, and should not control us. left now to return for the work left undone. The eved ivri’s ears are pierced when wanting Maharik/Rema (Y.D. 333:3) – Yes, and he can re- to stay because he did not heed this message pay the rest of the money later. heard at Har Sinai of ki li avadim May one sign a long-term contract with an The Brisker Rav: Our job is our livelihood, but if employer for more than three years? we are asked who we are, we respond like Yo- nah (Yonah chapter 1): Ivri Anochi, v’es Hashem Rema (C.M.
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