Siman 14

In the time of the sages of the Shas, there was the Great beit din of all Israel, and there were also "houses of assembly," which were places where great sages gathered. Our Rabbis said that when the plaintiff claims, "Let us go to the Great beit din or to the house of assembly," and the defendant says, "Let us litigate here," we compel the defendant to follow the plaintiff. Even though it was explained in siman 3 that we do not remove a case to another city when there is a beit din in their place, that refers to an ordinary beit din; and even if they are greater than the beit din in this place, we do not pay heed to this. However, to the Great beit din or to the house of assembly, for there are wondrous sages there, the plaintiff can compel the defendant. But when the defendant desires and the plaintiff does not desire, we compel the defendant to litigate here, for if not so, every defendant would say this in order to evade the judgment, such that the plaintiff would need to incur expenses according to the debt. And that which the plaintiff can compel the defendant is specifically if the beit din in this place sees that there is substance to his claim, such as if there are witnesses or evidence apparent to the judges; then the power of the plaintiff is sufficient to compel the defendant to go. But as long as it has not been clarified that his claim is a claim, he does not have this power, but rather litigates in his city; for if not so, unrefined people would set their eyes upon the wealthy and claim against them that they go to the Great beit din, and the wealthy person would be forced to appease them to avoid his exertion. And if there is no plaintiff and defendant in this matter—where one is not more of a possessor than his fellow, such as when they disagree over land, or two are holding a garment where both are possessors, or a matter placed in the hand of a third party—they do not have this power, but rather one compels his fellow to litigate in their city [Netivot HaMishpat]. And there are some of our Rabbis who say that specifically regarding a house of assembly is there a distinction between a plaintiff and a defendant, but regarding the Great beit din, even the defendant can compel the plaintiff to go there, for the Great beit din is the Great beit din of all Israel and is only one in every generation; therefore, the power of such a beit din is sufficient that even the defendant can compel this. And it is certain that if the plaintiff has a route to the Great beit din or to the house of assembly, such that even without this he needs to go there, everyone agrees that the defendant also compels him to litigate there, since he has no loss in this. And likewise conversely: that which the plaintiff can compel the defendant is when the plaintiff does not have a route there, for then it is evident that his desire to go there is because of the judgment; but when he has a route there, he cannot compel the defendant, for it is probable that if he did not have a route there, he too would not trouble himself for this, so how can we force the defendant? And if the judges needed to ask of the Great beit din, they send and ask, and they respond to them and not to the litigants, as I wrote in siman 13, section 11; see there.

Now, due to our sins, we have neither a Great beit din nor meeting houses, and although there is certainly a prominent beit din in every generation, nevertheless, since there is no agreement in the country that this specific beit din is the prominent one, we therefore have no involvement in this time with the previous law. Rather, in every place where there is a beit din, they compel both the plaintiff and the defendant to adjudicate in his city. Such is the custom, and the entire surrounding area that belongs to the cemetery of the city is drawn after that city, and neither of the litigants has the ability to defer himself to another city, except that he may defer himself until the third warning for the third day, as written in siman 11. These words apply when both litigants are from the people of the city or those belonging to the city, but a guest who sues one of the people of the city, or one guest who sues another guest when they both happen to be in one city and they do not dwell in the same city, he must go at the first warning. However, when the two guests are from the same city, he can say, "Let us adjudicate in our city," unless the beit din in this place sees that there is some deception in his deferment, in which case they compel him to adjudicate here. Likewise, a resident of the city who sues a guest, [the guest] is not to depart from the city until he adjudicates with him here, and he cannot say, "Come to my city," for since he is here, why should he trouble his litigant to travel with him to his city? And the villagers who come once a week to the city on the market day are obligated to adjudicate immediately, and he cannot defer him until the market day of the following week. And if the beit din sees some pretext that it is necessary for him to defer to another time, the beit din shall set another time for him. All this applies when there is a beit din in the city, but when there is no beit din in their city, each one can compel the other to travel to a place where there is a beit din.

If the plaintiff and the defendant do not dwell in the same city, the plaintiff must go to the place of the defendant and descend with him to judgment there. And even if the beit din of the plaintiff's place is greater than the beit din in the defendant's place, nevertheless he must go to his place. And let it not be difficult for you why regarding the claim of a "great beit din" and a "meeting place [of scholars]" the power of the plaintiff is superior, for it is different there; since it has already been clarified to the beit din here that his claim is a proper claim, consequently the power of the plaintiff is superior, as it is written: "the borrower is a servant to the lender." But when the defendant is in another city and the beit din of the plaintiff's place does not know the arguments of the defendant at all—and perhaps he has witnesses or proof that he sues him for nothing—if so, how can we compel the defendant to go to the place of the plaintiff? Rather, we say to the plaintiff: go to the place of the defendant and there you shall judge. And if the defendant has money or merchandise in the place of the plaintiff, and in a manner that he is able to sequester them by law according to what will be explained in siman 73, then consequently the power of the plaintiff is superior and he is able to compel the defendant to come to his place. But if the plaintiff cannot sequester them by law, it is nothing. And when the plaintiff can sequester them by law, he must immediately send a messenger to the defendant to inform him and that he should come to his place to judge with him, and the expense of the messenger is upon the plaintiff.

A father or mother who has a claim against their son, the son is obligated to go to their city even though he is the defendant, and likewise a daughter, and likewise a primary student to his teacher. However, regarding other people, even though the defendant is obligated in their honor—such as if his older brother sues him, or his father-in-law and mother-in-law, or a husband who sues his wife, or a Torah scholar who sues an ignoramus, or if his father's father or his mother's father sues him—none of these have this law. For this is only regarding the honor of a father and mother, whose honor was equated to the honor of the Omnipresent, and likewise "the fear of your teacher is like the fear of Heaven." But it is not so regarding everyone whose honor the defendant is obligated in, for there is no reason that we should trouble the defendant outside of the law because of the honor of this person.

One who is established as a violent person in his city, such that everyone fears him and shows him favoritism, is obligated by the law to litigate in another city, whether he is the plaintiff or the defendant. This is so even if the beit din in his city are great in wisdom, for we fear that due to his violence they will not judge him properly. But if he is not a violent person, only honored in his city due to his wealth or his wisdom, and his litigant says, "I will not litigate with you here but rather in another city," it depends on the assessment of the judges in this place. For if there is truly a concern that they will show him favoritism here, they shall compel him to litigate in another city; and if not, they do not listen to his litigant, and they shall judge here.

When the two litigants agree to a beit din in another city and they do not wish to go before them in person, but rather they send their claims in writing, if one is a Torah scholar and the second is an ignoramus, they should not write the claims themselves so that they do not suspect the beit din in that place that because they recognized the handwriting of the scholar, they showed him favoritism. Rather, other people shall write: "Reuven claims thus, and Shimon claims thus," and they shall not mention their names explicitly so that they will not know who the litigants are. And both of them pay the writing fee even though the Torah scholar knows how to write himself. And similarly, when the Torah scholar and the ignoramus are judged in a beit din in their own place and they needed to inquire of a beit din greater than them, the Torah scholar who is a litigant shall not write his proofs himself; rather, the judges shall write without mentioning a name, only "Reuven claims etc.," and the reasoning for the claims of the Torah scholar shall be written by them and not in the name of the Torah scholar [Urim VeTummim]. And one should not raise a difficulty that if we come to be concerned for such things, if so, even when a Torah scholar and an ignoramus come to judge before a beit din, let us be concerned lest they show favoritism to the Torah scholar; for the answer is that certainly it is so, and regarding this the Torah warned, "do not honor the person of the great." And in truth, the judge is warned in these matters regarding "do not fear any man," "do not favor the poor," and "do not honor the person of the great," and behold there are several matters of showing favoritism in judgment, and the judge must fear God and be careful of all of these. However, since they are sending in writing to a beit din and it is possible to escape from this burden, it is certainly better and more proper to do so. But in a place where it is impossible, such as when the two litigants stand before the judges, perforce it is impossible to escape that the judges will not know them, and they must be careful. Therefore, it seems to me that if the ignoramus is not particular about this, that the scholar who is his litigant should write himself, and he does not suspect the beit din there that they will show him favoritism, he is permitted to write himself. And it seems to me that this is the custom, and in several responsa such is found [so it appears to me].

If there is no permanent beit din in the city and both of them do not desire to judge via zabla and zabla, and there are two scholars in the city, one greater and one lesser, it is proper that the two Torah scholars sit together. And if they do not desire to sit together, and one says to judge before this scholar and the second says to judge before the second, the power of the defendant is superior to judge before the scholar he desires, even when he is the lesser. Nevertheless, the power of the lesser is not sufficient to excommunicate the plaintiff for his refusal unless the greater one removed himself entirely from this case, such that he does not even desire to judge alone; then the lesser remains the expert in the city and can excommunicate the refuser since the greater one removed himself. And if one litigant desires to judge via zabla and zabla, he can compel the second, as I wrote in siman 13.

If one of the litigants said to the dayanim, "Write for me from what reasoning you judged me," if they compelled him to the law, they write and give it to him immediately whenever he requests. And they do not need to write the reasons for the law, for other sages will also understand the reasons, as there is one Torah for us all; rather, they write, "Ploni claimed thus and Ploni claimed thus, and we ruled such and such." And the litigant is obligated to immediately fulfill the psak din, and if he brings from those greater than them in wisdom that they erred, then they shall overturn the psak din. And it appears to me that the dayanim must write that they give permission to examine the psak din, for if not so, it has already been explained in siman 12, section 3, that it is forbidden to judge based on a psak that others ruled. And specifically a small beit din must do so, but a beit din great in wisdom does not need to give, and we do not fear that they erred, for if not so, there is no end to the matter. And if they did not compel him to the law but rather he came of his own will, even a small beit din does not need to give it to him even to show to a beit din greater than them.

But if the dayanim see that the litigant suspects them and there is room for error in this law, then even if they are great in wisdom, and even without the request of the litigant, they must tell him the reason for the ruling, explaining the matter with its reasoning, in order to remove themselves from suspicion.

A defendant who refused to come to beit din, and the plaintiff was forced to incur expenses against him, and the defendant was found liable in the judgment, he must pay all the expenses to the plaintiff. And if he was found innocent, then if the plaintiff sued with artifice, it is revealed that he refused himself with integrity and he does not need to pay; but if he did not sue him with artifice, but rather thought that the law was with him, he must pay, for in any event he should have stood with him in judgment, and this matter depends on the understanding of the dayanim. And even if the defendant was found liable in the judgment, but the plaintiff's expenses were not due to the defendant's refusal, but rather that the plaintiff was forced to litigate with him in another city, such as when there was no beit din in their place or according to the details that were explained previously, and he incurred expenses, the defendant does not need to pay him even though he was found liable, since he acted according to the law.

If there is a contradiction between them regarding the matter of the refusal, where the defendant says that he did not refuse and the plaintiff says that he did refuse and incurred expenses due to his refusal, the plaintiff must bring proof since he comes to extract money from him. And if he did not bring proof, the defendant shall swear that he did not refuse and is exempt. And if the defendant claimed that he did not summon him at all, and the plaintiff brought witnesses that he did summon him, and afterwards the defendant claimed that he did not refuse, he is established as a liar and must pay. And if before the witnesses arrived he admitted that he summoned him, but that he did not refuse, if he admitted not due to the fear of witnesses, he is believed. And if he admitted due to the fear of witnesses, it is a legal doubt whether he is believed or not [Shach].

When the plaintiff was forced to incur expenses in secular courts due to the refusal of the defendant, and the secular courts forced him to go to judgment, if the plaintiff went with the permission of the beit din according to what will be explained in siman 26, the defendant is obligated to pay him. And likewise, if he has a judgment and the defendant does not want to fulfill it, and the beit din gave him permission to go to the secular courts and collect from him, and he incurred expenses for this, he is obligated to pay him.

When the defendant does not know how much expenses the plaintiff expended due to his refusal, the plaintiff must bring clarification of how much he expended, or the beit din shall assess for him the expenses according to their estimation. And if it is a matter that is impossible to clarify, neither through clarification nor through assessment, the plaintiff shall swear how much he expended and take [Urim VeTummim]. And the plaintiff can say to the beit din: "Assess for me according to the minimum of expenses in such a matter, as I do not wish to swear." And when the plaintiff brings clarification of how much he expended, nevertheless the beit din shall look into this, for perhaps he expended more than what was appropriate, as the defendant is only required to pay him according to what is appropriate to expend on such a matter [see Shach, subsection 16].

If a beit din obligated him to pay and he left and returned and said "I have paid," it will be explained in siman 79 whether he is believed or not; see there.

If the one who prevailed in the judgment comes to the beit din and requests that they write for him a verdict, it will be explained there whether they write and give it to him or not; and likewise, if he has a verdict in his hand, whether his fellow is believed to say "I have paid" will be explained in siman 39, see there.