Our previous post discussed the crucial role of the arbitration agreement in granting the beit din jurisdiction to hear a case. The present post discusses the hazmana process leading up to the arbitration agreement.
When a claimant wishes to summon a party to beit din, he or she can open a case at the Beth Din. The claimant should provide a short description of the claim along with supporting documents for the Beth Din to review. If the Beth Din determines that the claim warrants a din torah, the Beth Din will issue a hazmana (typically by mail and e-mail) inviting the respondent to enter into an arbitration agreement and participate in a din torah.1
If the respondent signs the arbitration agreement, the Beth Din will schedule a hearing. Once the arbitration agreement is signed, the Beth Din is empowered to issue a decision, even if one of the parties later refuses to participate in the proceedings.2
If, after receiving the hazmana, the respondent does not wish to arbitrate at the Beth Din of America, he can pursue one of three options. First, the respondent can propose to arbitrate at a different beit din.3 Second, the respondent can propose to resolve the dispute through a zabla, an ad hoc panel where each party selects an arbitrator, the final arbitrator to be selected by the first two.4 Third, the respondent can attempt to demonstrate that the claim falls outside of the halakhic jurisdiction of beit din.5
What happens if the respondent fails to comply with the hazmana, either by ignoring it or by failing to provide an adequate response? Jewish law both provides a remedy for the claimant and sanctions the recalcitrant respondent. A respondent who fails to comply with three hazmanot6 is rendered mesareiv le-din and sanctioned with harchakot (severance or alienation from his community).7 These sanctions include barring the mesareiv from communal events and prayer and prohibiting members of the community from doing business with him.8 When appropriate, the Beth Din of America will issue a shetar seiruv against a recalcitrant respondent, which the claimant can then publicize or share with the respondent’s community.
Jewish law also provides a remedy to the claimant by allowing him—with the permission of a beit din—to pursue the claim in secular court. Although Jewish law generally prohibits parties from litigating in civil court, it does not require a claimant to forgo his claim at the respondent’s recalcitrance.9 In such a case, the beit din will issue a heter ’arkaot, allowing the claimant to sue the respondent in secular court. A seiruv issued by the Beth Din of America will generally include a heter ’arkaot.
- See Rules and Procedures Section 2(b).
- See Rules and Procedures Section 2(j) and Section 17(a), Shulchan Arukh Choshen Mishpat 28:16, 18:6 and Tumim and Ketzot in siman 13. For a discussion of the general issue, see Seder ha-Din 6:38-41 and 6:6 and note 9 therein.
- See Rules and Procedures Section 2, Shulchan Arukh Choshen Mishpat 14, Seder ha-Din 1:17-19.
- Shulchan Arukh Choshen Mishpat 13.
- Rules and Procedures Section 2(b), (g) and (h). For example, the respondent can argue that the dispute has already been ruled upon or settled. For these examples, see Shulchan Arukh Choshen Mishpat 26:1 and Shakh Choshen Mishpat 12:12, Bava Batra 138b and Shut Rosh 85:5.
- Shulchan Arukh Choshen Mishpat 11:1, Seder ha-Din 1:25.
- Rules and Procedures Section 2(i), Shulchan Arukh Choshen Mishpat 11:1. Seder ha-Din 1:26.
- See Shulchan Arukh Choshen Mishpat 11:1 and Yoreh De’ah 334, Seder ha-Din 1:27 and note 43 therein.
- Rules and Procedures Section 2(i), Shulchan Arukh Choshen Mishpat 26:2.