Friday, October 12, 2007

The Pitfalls of Zavla, my position in the case in question

This is an excerpt from my final written communication with the to'ein concerning this case. Subsequently, the other two dayanim issued a psak din that they sent directly to the parties to the Din Torah. I have not seen a copy of it.


Dear Reb ..., shlita,

...It is simply one of "rabbinic malpractice," as the intention of the other "dayanim" to render a binding psak on the basis of a rationale that (to paraphrase): "Well, we don't know the halacha and we don't have to determine it ourselves (after all we can't find precedent!), the claimant has to prove it to us. Since he hasn't proved it, he loses." This is clearly not a din, nor karov l'din, but a miscarriage of justice. I cannot be a party to any further proceedings. I hope you will find a Beis Din that will redress this avlah. I am cc'ing the other individuals who sat in this "Beis Din."

My current positions on the psakim that should be rendered in this case are as follows, taking into account that no final disposition is implied:

... [In two other matters under consideration I wrote that in my view the halacha was (more or less) in accordance with the position taken by the nit'anim.]

3. Re severance pay: Rabbi ... is entitled to severance pay in full.

Explanation:

See Piskei Din Yerushalayim vol. 7 pp. 38-40 (it is in the Bar Ilan database, so I can send you a copy if necessary), that once the minhag of severance is established (as it is for mechanchim in ..., as we clarified with both the ... and Rabbi ...), its geder is that of a retirement savings account - i.e., the chodesh l'shanah eina mishtalemes elah l'ba'sof - it is only payable at termination, in one lump sum. This was reaffirmed in PDY vol. 9 p. 248. In the latter psak din
a cross-reference notes that there are certain conditions under which severance is forfeited. (See ibid., p. 293, concerning a case in which some Rabbeim in a yeshiva opened a rival yeshiva, in which case their severance is forfeited; see also ibid. vol. 8 p. 183 that when an employee quits a position of his own volition he thereby forfeits his severance).

Thus, severance is the equivalent of a thirteenth month's salary per year - with two caveats:

1. It is only paid upon termination of employment.
2. It is only paid in the absence of one of the conditions that renders it forfeit.

Thus, as is the case with back pay, the severance is a chov on the employer. Hence, the fact that the employer has chosen to shut down the function of its corporate entity that employed an employee is in no way an exemption from severance, just as it is no way an exemption from back pay. The employer must use its assets to cover this debt as it would any other debt.

The other "dayanim" claim that teshuvos issued in Eretz Yisroel are not binding, because the dina d'malchusathere is different. Of course, these psakim have nothing to do with dina d'malchusa. These same "dayanim" want to have it both ways as, claiming that Yeshivas ... is closed, despite the fact that according to dina d'malchusa the corporate entity is alive and functioning, with operations and employees.

Note 1:

In a telephone conversation, Rabbi ... [an outside authority] stressed to me that he never meant to say that the minhag was to not pay severance when a yeshiva is dissolved (which, in my opinion, has not occurred in our case in any event - as Yeshivas ... still functions, albeit as a Shul and Beis Medrash, and has at least one employee on its payroll). Rather, he said, he does not know what is customary in such circumstances.

He also stressed to me that the minhag of severance as established in regard to mechanchim emerged as a result of the hardship that mechanchim endure throughout their years of chinuch - i.e., since they are underpaid and overworked, the workplace has granted them this additional compensation.

Thus, obligation remains a lien outstanding on their remaining assets. [This halachic perspective on the parameters of severance was explained to me by one of the foremost experts in Halacha and Business Law in the United States, specifically in regard to the minhag of severance as practiced here.]

Note 2:

See Acting More Generously than the Law Requires: The Issue of Employee Layoffs in halakhah by Harry J. Van Buren III in Journal of Business Ethics 19, pp. 335-343 (1999) - upon request I can provide the essay in pdf or hard copy. While he is certainly not a posek, Mr. Van Buren demonstrates from several legitimate halachic sources that an industrial plant that has closed must pay severance to its laid-off employees.

Note 3:

I am indebted to two friends and colleagues, one in Monsey, NY and the other in Elizabeth, NJ, with whom I discussed these issues and who advised me and assisted me, both in sevara and in practice.

20 comments:

  1. "Well, we don't know the halacha and we don't have to determine it ourselves (after all we can't find precedent!), the claimant has to prove it to us. Since he hasn't proved it, he loses." ]

    That is disingenuous RYGB; you admitted research was done by the third dayan.
    Whether or not severance is an halachic minhag depends partly on dina demalchusah; if there is no minhag hamaqom people expect (often) the default to be American law, and that is very relevant.
    While you may be right, the halachah is not obvious, and you simply lost to the majority.

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  2. I guess I dont understand. Why is it too much to ask for the plantiff to prove his case? That is the way it works in a secular court. If you take someone to court, you have to prove your case and it is not for anyone else to do for you. Can plantiffs (toein) come to a Beis Din completely unprepared and expect the dayanim to do the leg work for them? That seems wrong.

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  3. Why is it too much to ask for the plantiff to prove his case?

    It;s too much to have to prove your whole case in one session; it's skews things against the plaintiff.

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  4. A Beis Din is not comparable to an American civil court, in which the plaintiff must prove his own case. It is more comparable to the Continental system, in which the magistrates do their own investigations and analysis.

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  5. It is very, very nice to see that your monitor is working once again. You have been sorely missed! Now, if only I can find the time to go through this whole zavla thing.

    Gut Shabbos.

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  6. Unless a Beit Din is convened in days, a plantiff has time to put together some evidence and expecting that is not putting the individual at a disadvantage. For the love of G-d, can adults not do anything for themselves?

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  7. Does the former Yeshiva (now Shul and Beis Medrash) owe the Toen back-pay? Was that an issue in this Din Torah? If so, what was the Psak?

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  8. I recall the normally polite, soft-spoken Rav Bechhofer LOY"T using very harsh language (in an earlier post) to characterize the conduct of the Nitanim and their Dayanim. I cannot believe the only issue was severance pay (which has never been clearly defined for Yeshivos). What actually earned the other parties the wrath of a highly-regarded Talmid Chacham?

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  9. Anonymous said...
    I recall the normally polite, soft-spoken Rav Bechhofer LOY"T using very harsh language (in an earlier post) to characterize the conduct of the Nitanim and their Dayanim. I cannot believe the only issue was severance pay (which has never been clearly defined for Yeshivos). What actually earned the other parties the wrath of a highly-regarded Talmid Chacham?


    A very fair question.

    I removed those comments.

    Not because they were undeserved.

    But because they relate to the mistreatment of the to'en in ways that I cannot put into print, not only to the specific issues I have raised here.

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  10. I suggest you get in touch with the noted Mohel, Rabbi Eliyahou Zimmerman. He and a number of his collegs went through the EXACT same case in the late 1970's. Mosad closed and 'reopened' the next year in a diffrent fourm. Some of the biggest Gedolim of the time were involved including (I beleive) RMF. They did end up getting severence. BTW, it will be 1000% impossible to get any other Bes Din to look over this issue once your BD gives a Psak, no matter how weird it is.

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  11. There are so many rumors of Dayanim accepting bribes.
    There are also so many rumors of Dayanim dishonestly helping their friends who are one of the litigants, and of other types of corruption.
    It is true that it is only rumors, but there are too many rumors to ignore.
    If there is no evidence that the Dayanim are honest sincere Talmidei Chachomim, then I see no reason why you are required to go to Beis Din.
    Anyone can start a Beis Din - every commenter on this Blog can start a Beis Din? This just sounds like a circus!
    Does anyone believe that just because some guy starts a Beis Din, a person is required to go to him and not secular court.
    If you are confident that the Dayanim are honest sincere Talmidei Chachamim like R' Moshe Feinstein, then go to Beis Din - otherwise you have to be crazy to go to Beis Din.

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  12. It is obvious to me, that the halachic requirement to go to Beis Din is only if we are confident that the Dayanim are honest sincere Talmidei Chachamim like R' Moshe Feinstein.
    If not, then go to secular court just like you would if you lived in a country that didn't have a beis Din.

    Daniel

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  13. Rabbi Bechhofer,

    Thanks for writing about this important subject. Due to all the rumors of corruption in the Beis Din System, I think many people are very scared of a Din Torah. They would much rather be in a secular court.

    Daniel

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  14. Reb YGB,

    There seems to be one point in this discussion that has been overlooked that would greatly enhance our understanding of the process.

    To the best of my understanding of halacha and Batei Dinim, no party involved in a dispute that is heading towards Beis Din is required to accept a Beis Din other than a Zabla. That is even if a 'standing' Beis Din exists in a locality. And especially if one does not exist or many exist. So any litigant that finds the Zabla process to be to his advantage, can force the other party to come to a Zabla rather than any standing Beis Din.

    And even if there is a basis in todays day and age to somehow argue that one may insist on a standing Beis Din rather than a Zabla process, the defendant who is insisting on Zabla can simply argue that he is only required to appear at a Zabla, and no other Beis Din, take it or leave it.

    If so, there is no alternative to Zabla, and we must make the best of the (bad) process, rather than ranting about it.

    Am I missing a point?

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  15. No, it is not that utterly hopeless. I will address the topic of possible eitzos in a final post on the topic within the next day or two, IY"H.

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  16. It seems that RYGB removed himself from the BD before it gave its decision.
    "I cannot be a party to any further proceedings. "

    In this case are the other two still allowed to issue a binding decision? Would thier decision have any meaning according to civil law, even if both sides had signed an arbitration agreement?

    To the comenter who wants to know why adults can't prove their own case - how can they prove it if they do not have access to all the relevant documents? The plaintiff could not get the by-laws without the BD insisting on it. The plaintiff also cannot know before the first meeting exactly what documents he will need, because he does not know the other sides arguments.

    I am unconvinced that the line about the Aruch Hashulchan has any meaning, since it has no meaning in the context it was quoted. The AhS in that paragraph allows the sides to discuss the case with their respective judges outside of BD, but the context of the agreement saya - "We accepted these judges to judge for us, in accordance with the AhS". (Note that it says paragrah 4, not paragraph 3). Since the AhS is not discussing the formation of the BD or the manner of holding court, it is irreleavnt in its context. (The line can also be read "and in line woth the AhS they can decide based on Di or based on a compromise" -- which is not what the AhS says, again making it meaningless.)

    Further, the line requiring the sides to bring all thier documents --
    does not allow the BD to refuse a second sitting if it is necessary.
    It should also mean that the sides must bring all relevant documentation - not only htat which is good for them. The nitva was derelict in not bringing the by-laws of the schools, and their behavior cannot then be used to refuse the toveia a second hearing.

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  17. We sincerely appreciate the leadership of Rav Bechhofer SHLIT"A on this very important issue for Bnei Torah. As a much larger audience than those who visit this blog site can benefit, have plans been made to publicize the Rav's experience and his recommendations in the Jewish Press or other appropriate forums?

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  18. The halacha of "hamotzi michavero alav haraya" only means that he has to prove what happened - not that he has to prove what the halacha is. Here there is no dispute about what happened, so this halacha does not help.

    The reasoning of the defense is a different claim. They are saying that the toveia was 'mochel' his right to bring any proofs after the first sitting, and that he agreed to forfeit the use of any such claim.
    It turns out then that the nitva is the motzi - he is trying to deny the toveia the right to use otherwise legitimate proofs - and he is the one who must prove that the toveia was actually mochel. This is more commonly called 'yad baal hashtar al hatachtona'.


    I would also add to my previous comment that since the other two people sent out their decision without including RYGB or asking him to sign, and they did not even send him a copy, that means that they acknowledged and accepted his departure from the BD.

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  19. Yasher Koach to the Rav SHLIT"A for these very helpful and informative Halachah LeMaaseh posts. We are eager for more. As he has not updated this blog over the past five days, we hope that it is because he is very busy, but otherwise B"H fine.

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  20. Just busy. Have to get Artscroll work done.

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