Din Torah FAQ
Din Torah FAQs
Cases at the Beth Din are decided based on Jewish law, although there are many instances when Jewish law calls for the application of secular law to a case. In deciding a dispute arising under a contract that contains a “choice of law” provision, the Beth Din will respect that provision and apply secular law, except to the extent it runs afoul of a specific Jewish law prohibition (such as the collection of prohibited forms of interest). Even without a written choice of law provision, the Beth Din will apply secular law if it is clear, based on the circumstances and the context of their business dealings, that the parties intended for their transactions to be governed by secular law.
In some cases, such as certain bankruptcy matters, the Beth Din will apply secular law under the Jewish law principal of Dina D’Malchusa Dina (the law of the land is the law) even absent an intent of the parties for secular law to govern their dealings.
Dinei Torah (arbitrations) are conducted at the Beth Din pursuant to binding arbitration agreements signed by the parties prior to the first hearing. This means that the secular courts will fully enforce decisions issued by the Beth Din in business disputes, and that the decisions are subject only to the limited court review that applies generally to arbitration awards.
Not really, at least not in the sense that secular courts are bound by their precedents. The judges in a Din Torah apply their understanding of Jewish law, and not all judges understand the law in the same manner. However, the body of Jewish law is very extensive, so many questions do have a clear resolution that the judges can be expected to follow.
There are no such limitations in the Din Torah (arbitration) context. Although Jewish law contains detailed rules relating to who may serve as valid witnesses, those rules are practically limited to situations such as a marriage or divorce. A Beth Din deciding a dispute has complete latitude to gather information from anyone who has knowledge of facts relevant to the case.
Generally, Dayanim at the Beth Din treat corporations much like they are treated under secular law. Jewish law might not specifically recognize the existence of an independent entity with its own liability such as a corporation. Nevertheless, if you do business with a corporation, you are usually assumed to be following common business practice, and in the United States, limitations on liability are common business practice. Also, corporations would be effective under Jewish law according to some understandings of Dina D’Malchusa Dina (literally, “the law of the government is the law”).
Please note that even under secular law, corporations do not always shield individuals from liability. If, for example, the president of a company guarantees a deal with his own assets, then his personal guarantee would make him personally liable. Also, sometimes it is possible to “pierce the corporate veil.” This means that a corporation cannot just be a front. If it turns out that someone has a corporation that they use just like their personal bank account, putting money in and taking it out freely, they demonstrate that the corporation is not independent, and they are not protected by the corporation from personal liability. The details of exactly when this applies are beyond the scope of this guide.
No. However, under secular arbitration law, you have the right to have a lawyer present if you want one. Sometimes a lawyer can help you organize your case, and help you identify what is important to present to the judges.
They follow Jewish law, but Jewish law often takes the local law into account. For example, Jewish law often considers common business practice, which in the United States is often a product of American law. If someone enters into a contract that is binding according to American law, then they are generally bound by Jewish law as well, because the business community considers such contracts binding.
Also, there is a principle in Jewish law called “Dina D’malchusa Dina,” literally, “the law of the government is the law.” The exact parameters are somewhat complex, but this means that Jewish law recognizes many secular laws. Bankruptcy laws are often a good example.
Generally, cases are heard by a panel of three Dayanim. Small cases, usually those involving amounts in controversy of less than $10,000, are sometimes heard by a single Dayan.
No. The main advantage of a lawyer is to make sure that your case is organized, and that you do not neglect any evidence in your favor. The judges are responsible for identifying Jewish law relevant to the case.
Section 31 of the Beth Din Rules and Procedures sets forth a process whereby litigants may appeal to the Beth Din or his designee to modify a decision that has been issued. Decisions may be modified on certain grounds, including where the Beth Din panel improperly calculated the amount of an award.
Jews are forbidden to charge each other interest on loans, so if a contract calls for interest, a Beth Din will often strike that provision. Jewish law considers many payments that allow one to pay more but pay later to fall under this prohibition, so even things that do not seem like interest may be included. Jewish law allows a workaround called a heter iska, which restructures a transaction with interest into a different kind of transaction with mostly similar effects, but if the parties do not enter into a heter iska, interest is generally unenforceable.
Every seven years, at the end of a shmittah year, loans between Jews are nullified, unless the creditor executed a document called a pruzbul after the loan was made but before the nullification. The nullification takes place immediately before Rosh Hashana following the shmittah year. The next such nullification will take place in 2022. There are several exceptions even without a pruzbol, but it is generally a good idea to have one.
Inheritance rules are very different, particularly in the absence of a will executed according to halachic specifications. Generally sons inherit to the exclusion of their sisters, among other differences. There are provisions that may be included in a will allowing it to be enforceable under Jewish law. Also, if the parties to a litigation stipulate that the provisions of a will should be honored, the Beth Din will respect the provisions of the will.
Jewish law forbids the defendant to refuse. It is a violation of Torah law, similar to eating non-kosher food or violating other Jewish laws.
In the event that there is an existing agreement to come to a particular Beth Din (for example, if the parties signed a contract which refers any disputes to a particular Beth Din), the Beth Din can hold a Din Torah in the absence of the person who was summoned. The Beth Din considers the evidence that the claimant brings and issues a ruling on that basis. Otherwise, the summoning Beth Din generally issues a “heter arkaos,” which grants permission to the plaintiff to go to secular court, so the defendant does not simply avoid a hearing.
A summoning Beth Din may issue a “seruv,” or a contempt order. A seruv is simply a public declaration by a Beth Din that someone was summoned to Beth Din but refused to meet their obligation under Jewish law to appear in front of the Beth Din. Sometimes, Jewish communities or synagogues impose sanctions on such people, such as not giving them aliyos (being called up to the reading of the Torah) or refraining from social interaction, to pressure the person to meet their obligation. The Beth Din is not necessarily involved at that point – the community or synagogue decides what measures are appropriate.
Occasionally a summoning Beth Din may issue an “ikul,” a restraining order.
Typically, hearings take place at the offices of the Chicago Rabbinical Council in Chicago. The Beth Din can also send Dayanim (Arbitrators) to other locations. In some situations, the Beth Din has conducted arbitrations by video or phone teleconferencing.