Now, the most significant demonstration of naivete on my part (call it stupidity, if you'd like), was my failure to realize the full portent of this line in the shtar birurin:
Al ha'tzedadim l'hitztayed im kol hochochusaihem u'mismochosaihem v'eideihem kdei she'Beis HaDin lo yitztareich l'diyunim nosafim.
Sounds innocent enough? We ask for the BD's convenience that everyone bring all matter of evidence that they know of the first time around so we don't have to reconvene, right?
Nope.
What it means is that unless the Beis Din decides for some overriding reason to admit it later on, any evidence, including Halachic reasoning, presented after the Beis Din's one and only sitting, was inadmissible.
I'm not sure I can describe the impact this approach has on a case.
The "dayan" of the nit'anim understood and implemented it thus:
This was a case of ha'motzi mei'chaveiro alav ha'ra'ayah. The to'ein had several claims, but let us focus on the major one. The to'ein had been a Rebbe for many years in a yeshiva. Several years ago, the yeshiva decided to "close", and terminated several Rabbeim. However, it still exists as a corporate entity with assets, retains (at least one) former Rebbe as an employee, and functions as a Shul and Beis Medrash. If you call the institution's phone number, you will still be answered: "Yeshivas X." The to'ein asked for the customary chodesh l'shanah severance that is paid upon termination. [Rabbi Michael Broyde from Atlanta has a frequently cited essay demonstrating that the minhag in the American chinuch system is to pay severance of chodesh l'shanah, and Torah U'Mesorah guidelines for its schools incorporate this standard.] Without getting into details, the yeshiva refused, on two grounds:
1. It had not itself established a minhag to pay severance.
2. It had not terminated the Rebbe, but had closed, and was therefore not required to pay severance.
In a future post I will lay out my position on a psak in this matter, and my reasoning, but the "dayan" of the nit'anim took a very simple and straightforward position:
This is a case of ha'motzi mei'chaveiro alav ha'ra'ayah. Unless the to'ein produces at the Din Torah itself (as per the clause above) verified and documented precedents of severance being paid in the makom in which this yeshiva is located and verified and documented precedents (again, at the Din Torah itself) of severance being paid in a case in which a yeshiva closed, he loses. Period. No further research or reasoning necessary.
In short, the burden of birur ha'emes and paskening is lifted from the shoulders of the "dayanim" and placed upon the to'ein. Any concession on the part of the "dayanim" to engage in independent research and analysis is purely their own condescenion, not a requirement of due diligence.
Excuse me, R. Bechhoffer, but that reading of "VAl ha'tzedadim l'hitztayed im kol hochochusaihem u'mismochosaihem v'eideihem kdei she'Beis HaDin lo yitztareich l'diyunim nosafim." you cite from one of the dayanim is just silly. What happened to the dayan you yourself were borer, did he side with that? I agree this was a travesty of justice, but you have to take some of the blame for your choice.
ReplyDeleteAnonymous is right. The Rabbi does not seem to feel the need to take responsiblity for any of his actions instead passing them off as the fault of others. If you go into something without basic knowledge or understanding, it is no one's fault but your own if you do not fulfil your role completely.
ReplyDeleteThe third dayan was willing to, and did, do some independent research - but only to a point (e.g., he did not demand that the yeshiva produce its bylaws and open its books, etc.) - while the dayan of the other side was opposed to any research. However, even the third dayan did not engage in any independent research as to the minhag ha'makom in the locality of the yeshiva in question, nor did he engage in any research and analysis of the available Halachic resources beyond what was presented to him at the Din Torah.
ReplyDeleteOf course I share in the blame. I was naive and gullible.
I am taking responsibility in the only way I know how. I am exposing my foolishness l'einei Elokim v'Adam to try and warn others away from the same pitfalls.
ReplyDeleteThe third dayan bought this?
ReplyDeleteAnonymous I and II, "the Rabbi" is taking responsibility, but "the Rabbi" can't believe his fellow Rabbanim would countenance a moral wrong and call it justice.
Anyway, are you precluded for opening a case in civil court over this (i.e. was there a binding arbitration agreement)? If that's a silly question, sorry, I have never done one of these things.
chaim b. (I'm anon I) it sounds like his choice for a dayan did NOT go along with the reading and did some of his own research. How much research is necessary is a good question, given that 2 of the 3 dayonim had already decided, as a matter of halachah, that the ruling would follow the narrow reading of "minhag hamakom" as described by RYGB. So, in fact, the "travesty" doesn't seem so bad at all. While R. Broyde may be correct that one is obligated to pay out the year, that is not an obvious halachic position in general, despite torah u-mesorah adopting that "practice" as a sort of voluntary severance package. In short, I don't get what the big deal is.
ReplyDeleteI think the third dayan is basically a decent fellow, but of limited acumen, and gullible in his own way. He is known to be a talmid chochom, and although I did not know him personally, was generally thought to be honest and upstanding.
ReplyDeleteThe problem with a secular court is that severance is a halachic minhag. My understanding is that it is only enforceable in a secular court after the binding arbritration of a Beis Din has ruled it is due.
In this case, I think that the only way the to'ein can get a fair hearing is to find a Beis Din Kavu'a that will agree that the Zavla's misconduct was such that they should reopen the case.
Anon. I:
ReplyDeleteIn the end the third dayan agreed that the minhag ha'makom in that locality is to pay severance. He exempted the institution on the basis of the lack of precedent in the case of an institution that has "closed".
In the end the third dayan agreed that the minhag ha'makom in that locality is to pay severance. He exempted the institution on the basis of the lack of precedent in the case of an institution that has "closed".
ReplyDeleteI don't get it. Why are they exempted from minhag hamakom?
Because, he maintained, we only know that a yeshiva that is open and ongoing, in the sense of possessing a student body, is mechuyav - in that locality - to pay severance. We don't have a precedent, and therefore do not know whether a yeshiva that no longer has students (although it may be an ongoing concern with assets in other respects) has to pay severance.
ReplyDeleteI'm sorry but that's just stupid. If that were true you can always avoid minhag hamakom by leaving the locality whenever anything comes up. That, to me, is a clear error in d'var mishna.
ReplyDeleteHonestly, though, your posts sound polemical and don't properly describe the halachic or the facts-- I think it's a bit of a diatribe and loshon horah on the third dayan- whom you describe as "of limited acumen"-- because he did not agree with you.
ReplyDeleteThere are many problems with our BD system and you described only a few. I make a partial list, only what I can recall right now:
ReplyDelete1.No process. There are no rules for how litigants and dayanim are supposed to behave. Some talk on cel phones, discuss other dinei torah in the presence of other people, make small talk with one side, which can intmidate the other side etc. Farthermore, a toen is allowed to be forceful and sometimes overwhelm the dayanim in his arguamntation, especially if they are quieter and retiring kind. I secular courts judges get respect but not in BD.
2.You already described the problems of just getting someone to come to BD,. Whoever is not scrupulous and does not want to go can avoid it.
3.No fear of perjury. Litigants can outright lie without penalty and if dayanim dont do their own research, they can paskin based on false information.
4.No expert testimony. Most cases are complex in this day and age. Without access to expert testimony, dayanim often apply inapplicable halachos, e.e. calling a consultant a "sofer" and payng only for tehhwritten part of the work and not for meetings, site visits, consultations and thinking involved in the reports. Sometimes, dayanim protect themselves from complex cases by methods you describe, because they cant deal with constantly evolving information.
5. Some changes in lifestyle are not relfected. F.E. zoning is crucial to how people live now. Most B"D will allow anything to be built anywhere as if we still leave in overpopulated ghettoes.
6.All Dayanim are generalists. To be really good in anything, one must specialize.
At the end we must believe that Hashem makes everything right... but we really should be doing better...
"Unless the to'ein produces at the Din Torah itself (as per the clause above) verified and documented precedents of severance being paid in the makom in which this yeshiva is located and verified and documented precedents (again, at the Din Torah itself) of severance being paid in a case in which a yeshiva closed, he loses."
ReplyDeleteWas the the to'ien able to produce the evidence that was requested of him?
The BATEI DINIM that had this documentation would not release it to the Toen because of confidentiallity issues. However they said they would give it to the Dayyanim upon request.
ReplyDeleteI attend a shul where RYGB also attends periodically. The Rav there has been very vocal, on many occasions, that Zablah is 100% corrupt and that no one should participate in one.
ReplyDeleteR' Bechofer,
ReplyDeleteIf you are familiar with the Chassidic dialect of Yiddish, I suggest that you listen to the shiurim on these abuses of Beis Din at the following phone number, where hundreds of sources in hilchos dayanim are discussed:
(212)990-6003
http://www.zbermanbooks.com/Page.asp?ID=913866aaca735b055c48328a6c1074c7d146d2af85ba1e45c7fcf415dfe230e1&ProductID=167356
ReplyDelete