Translation:Shulchan Aruch/Choshen Mishpat/14

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Paragraph 1- If two parties were fighting over a case and one said to have the case judged locally and the other says to go up to the beis din hagadol, we force the party to be judged in his city. If a party says write down the reason for your ruling and give it to me because you may have erred, we write it and provide it to him and then we take away the item that was litigated. If the judges need to ask the beis din hagadol a question, they write the question, send it and ask. They then judge in their city based on the response back from the beis din hagadol. The two parties pay for the messenger’s wages. If, however, one of the parties or judges wants to send the question afar and there is a competent scholar close to them, they send to the close scholar, even if the other scholar is wiser, becauseone does not have the power to cause a party to lose the excess costs of the messenger. All the more so where there is another scholar in the city who is qualified to judge. If the two scholars are equals we would ask the older one. This is all in a standard case where each party makes a claim or the lender says let us judge here and the borrower wants to go to the beis din hagadol. If the lender wants to go the beis din hagadol, however, we force the borrower to go with him. Similarly, if a party claims that someone caused him damage or stole from him and the plaintiff wants to go to the beis din hagadol, we force his adversary to go with him. The same applies in all similar cases. This is only true where the victim or lender has witnesses or another proof. With respect to empty claims, however, we would not obligate the defendant to leave. Rather, the defendant takes an oath in his locale and is exempt. The same applies today where we have no beis din hagadol. (Some say that the most prestigious court in each generation is considered the beis din hagadol.) If, however, there are places in that country that has great, expert scholars or places with unique students, if the lender says let us go to such and such place in such and such country and be judged in front of such a great judge, we would force the borrower to go with him if (the plaintiff) has witnesses or another proof and the local court sees that his claim has substance. Otherwise we would not force him to go. There are those that say that the right to force a party to go to beis din hagadol does not depend on which party is making it, and each one can force his adversary to go. This is all the letter of the law. Today, however, we have the custom that any time a city has a court, a party cannot force his adversary to go to a different court because we don’t have a beis din hagadol or meeting-place so a party cannot push his adversary off. He is, however, able to push him off so that the case does not occur until the third day and then they would select judges immediately. With respect to a guest that calls a citizen or where two guests have a case, however, they must judge him immediately and he cannot push him off. Similarly, a citizen can call a guest to court in any place that he finds him if the court has the power to force him. This is all where there is a court in their city. If, however, there is no court there, each party can force his adversary to go with him to another city. The plaintiff must follow the defendant if he is in a different city, even if the plaintiff’s city is larger and even if the defendant had money placed as a deposit (in the plaintiff’s city) or in another city, unless he is able to gain possession of the defendant’s money in his city. In such a case, they would judge in the city where his money lies. See later Siman 73 where I wrote when one can take possession of the other’s money. If a father has a claim against his son, the son must follow the father, even though he is the defendant as will be explained (in Yoreh Deah Siman 240). We force a powerful, rich individual to leave his city and be judged in another city, even if the court in his city is greater.

Paragraph 2- If one of the parties is a scholar and knows how to write his proofs, and his adversary is an ignoramus, the scholar cannot write the claim himself when they send the issue to the beis din hagadol. Rather, the judges will transcribe it. Both parties pay the scribe’s wages.

Paragraph 3- There are those that say that if there are two scholars in the city and one is greater than the other, a party can say I do not want to be judged in front of this one, but in front of the other one, even if that other one is inferior, since they are both in the same city. If one of the judges recuses himself from the case, it is as if he is not there and if the second one calls him to come and he does not, we would put a nidui on him. Any situation where one does not have to go in front of a person to be judged, he does not have to worry about being called and he does not have to come for anything.

Paragraph 4- There are those that say that if a judge observes that one of the parties suspects the judge is twisting the ruling against him, the judge must give an explanation for his ruling even if the party does not ask. All the more so where a party demands they write the reason for the ruling. Some say, however, that this is only where the judged him by force, but otherwise we would not write, and this is the primary rule. When they are required to write the reason for their ruling, there is no set time for the issue. Any time that the party comes, they must write and give it to him. They don’t have to write the reasons and proof- just the claims and the ruling. The losing party must pay immediately. If they change their ruling, they will return it to him. The only concept of writing is for an inferior court for a superior court. A superior court that judged, however, does not need to write because we do not suspect that they erred. Otherwise, there would be no end to this.

Paragraph 5- One who is found liable in judgement is not obligated to pay his adversary’s expenses, even if he forced him to be judged in another city. This is only where he did not refuse to be judged, but just insisted on going to another city. If, however, he refused to be judged and the plaintiff incurred expenses to force him to go to court, the defendant is required to pay his expenses he incurred from the time of refusal. There are those that say that if he called him to a secular court and incurred expenses on judges and attorneys, he is not required to reimburse him even though his refusal caused him to go to secular court. There are those that disagree and are of the opinion that if he was forced to incur expenses in secular courts to compel him to be judged, he is required to pay. This seems to me to be the primary rule so long as he did it with the permission of the court as is explained later in Siman 26. One who tells his adversary let us go and be judged in another place, and the adversary responds, go and I will follow you, and the first individual goes but the second does not follow, the second must pay all of his expenses. When a refuser is paying expenses we do not require an oath as to how much was incurred. Rather he must prove how much he spent or the court will evaluate his expenses and charge accordingly.

Paragraph 6- If the court obligated him to pay and he left the court and claimed he paid, whether he is believed or not will be explained in Siman 79.

Paragraph 7- If the victorious party comes to court and asks for a written ruling, whether we write it or not will also be explained there.

Paragraph 8- If a party has a written ruling that his adversary is required to pay him, whether or not he is believed to say he paid already will be explained in Siman 39:10.