Siman 11

How one is summoned to the beit din: thus was the custom of the ancients, that the beit din sends their messenger after the defendant to come on the day fixed for the session of the judges. And if it is a place where the judges sit every day, it is not necessary to tell him for which day, but rather he warns him generally, and they wait for him the entire day. If the day passed and he did not come, if the defendant is present in the city, it is insolence that he did not come, and they place him under a ban [in ancient times] on the following day. And if he is occupied with business outside of the city, the beit din estimates according to the matter of his occupation to fix a time for him. And if he is a person who constantly goes out and enters from the city to outside the city and from outside the city to the city, they give him three warnings on three days, and when he does not come on the third time, they place him under a ban on the following day. And it has already become the custom that even for one who is in the city, they do not give a refusal of the beit din until after three warnings on three days [Urim VeTummim and Netivot HaMishpat]. And the reason is because nowadays everyone is occupied, and he is no worse than one who goes out and enters from outside the city to the city, and they attribute it to the fact that because of his occupation he was unable to come, unless he is a transient, for then he must come on the first time, as will be explained in siman 14. And the plaintiff pays the fee for the summons.

The defendant is able to say to the plaintiff before descending to the beit din: "Tell me for what reason you are suing me," and if the plaintiff says, "I will not reveal the claim to you except in the beit din," the defendant is able to say, "I will not go with you until you tell me, for perhaps when I hear your claim I will appease you without a beit din" [Shach]. The defendant informs the messenger of the beit din of this. And likewise, if the defendant has some reason that he is unable to come now to the beit din, or that he is forced now to go on a journey, he informs the messenger of the beit din of this, and the beit din sets another time for him. If he did not do so, they excommunicate him, for it is insolence that he did not respond to the beit din with his excuse. And likewise, one who says that he does not care about the decree of the beit din or a sage, even if he came, it is insolence. And if he says, "I will not litigate before this beit din but rather before another beit din," it was explained in siman 3 and will be further explained in siman 14. The messenger of the beit din is believed to say that he insulted him or the beit din, as written in siman 8, and it was explained there that to extract money he is not believed; and consequently we have learned that in a place where they write the refusal and do not permit him until he pays the fee for the writing, the messenger is not believed regarding this matter.

Our teacher, the Rema, wrote that if the beit din went to another place, the defendant must follow them, and if he did not go, they place him under a ban. Thus far his words. All the poskim did not cite this law, and it is wonderous from the perspective of logic. It appears to me that this law applies only if the one who was warned is not from this place where the judge dwells, but rather from the surroundings of his place, and when the judge went to another place, the one who was warned does not have a distance of place to that location; for then he is certainly obligated to go to the place where the judge went, since he does not have a distance of place in this. [And so it appears from the source of the law in Rosh Hashanah 31b: that they summoned a certain woman to Nehardea and she was not from there, similar to the witnesses of the sighting of the moon in the Mishnah who are from another place; and therefore the Rambam and the Tur omitted this law because it is not common, and delve into this]:

When the messenger of the beit din warns the litigant, he must speak to him in the name of all the judges, or in the name of the head of the beit din, or in the name of the rabbi in the city. However, if he spoke to him in the name of one of the judges and he did not come, they do not excommunicate him. In what case does this apply? When it was on a day that is not fixed for the session of the judges. But on a day fixed for the session of the judges, everyone knows that all the judges are gathered, and even if he came in the name of one, it is as if he came in the name of the three of them, provided that he does not mention him in the name of the least of the judges [Shach]. And it is proper to show honor to the expert among them and to warn in his name. And it appears that in a place where the beit din sits every day, he must mention in the name of all of them or in the name of the expert; but if he mentioned in the name of one of them and he did not come, they do not excommunicate him. And it is not similar to the time fixed for their session, where when he comes in the name of one it is as if he comes in the name of all of them; for there, since they do not sit every day and at the fixed time they are obligated to sit, the litigant knows that certainly all the judges will sit. But when they sit every day, the litigant can say: since he mentioned to me one of them, I thought that perhaps the other judges do not have time today. And there are places where the messenger of the beit din warns the litigant in the name of his fellow litigant, and says: Reuven warns you to the beit din.

When the messenger of the beit din did not find the one to be warned in his home, this is not included in the warnings. Even if he requested of his neighbors that they should tell him when he comes to his home that they warned him, and they promised him, this is nothing. And even though we maintain the legal presumption that a messenger performs his mission, and certainly the neighbors told him, for we fear that the neighbors will reconsider and say, "Certainly he found him himself and told him." Therefore, this is only when the litigant is in the city, for then they will say that the messenger of the beit din himself found him. But if it is the way of this man to be all day in the environs of the city and he comes every night to his home to sleep, the messenger of the beit din may deliver the warning to one of the neighbors, and even to a woman, if she promises that she will tell him that they warned him for the beit din that he should come tomorrow. And if he did not come, they place him under niddui on the day after that day, for the presumption is that a messenger performs his mission and they told him, since they know that the messenger of the beit din will not see him. Therefore, if the path that the one to be warned takes from outside the city to his home goes by the place where the beit din sits, the warning is not considered, for the neighbors say, "When he went to his home by the house of the beit din, they saw him and told him." And likewise, if it is not his way to come every day to his home but only on the following day, we do not rely on the neighbors, for perhaps until the following day they forgot about this and did not tell him, since the matter does not concern them. And it appears that even when the messenger of the beit din requested of his wife and the members of his household, it also does not avail, for it is a near matter that they forgot and did not tell him.

One against whom a document of niddui was written because he did not come, and he said that he will come, they do not tear the document of niddui until he comes, because as long as he has not come, it is considered insolence against the beit din. However, one against whom a document of niddui was written because he was refusing to perform the command of the beit din, immediately when he says, "Behold, I take upon myself to perform your commands," they tear the document of niddui; for as soon as he takes upon himself to act, the insolence is removed, and as for the fact that he does not fulfill it immediately, perhaps it is not within his power to fulfill it immediately. But to go to the beit din, it is certainly within his power to go immediately. And he pays the fee of the scribe, for he sinned against himself by acting insolently toward the beit din.

One against whom a document of refusal was written because he did not want to fulfill a ruling of the beit din, and after some time the claimant sues him based on the refusal, in a manner where without the refusal he would not have been liable—for example, a woman who sued her husband for maintenance and the beit din ruled that he must give her a fixed amount every week, and he did not want to accept the law, and they gave her a document of refusal, and after a period of time she sues for the amount the beit din ruled for her, and he says, "Since you remained silent, you waived it," while she says that she remained silent because the refusal was in her hand and she did not waive it, and he says that he did not hear of the refusal—he is not believed, for an act of beit din has a public voice [Mordechai, chapter 13 of Ketubot], and similarly in other matters.

Distinguished women if they are summoned to a beit din, and likewise a talmid chacham whose Torah is his profession, and likewise if the defendant can appoint a representative in his place to go with the plaintiff to the beit din, will be explained in siman 96 and 124; see there.

When the dayan sends a summons after the litigant, he may sign his name on the side, even though regarding witnesses it is disqualified in such a case, as will be explained in siman 45; in this case it is valid, for this is not a legal document at all, but only to inform the litigant that he should come to beit din.