בית הוועד לענייני משפט
The Halacha Center
The Center for the Study and Practice of Monetary Halacha
THE BAIS HAVAAD HALACHA JOURNAL: Volume 5777 Issue XXXIV Beha'alosecha
Appealing a Bais Din Decision Part I
Is there a concept of appeals in the Bais Din system?
By: Rav Yitzhak Grossman1
  1. Introduction

In most modern judicial systems, a litigant who is unhappy with a ruling issued against him by a local or district court may request to have the case reexamined by a higher level court. The higher court can then uphold, or override, the earlier decision of the lower court, which is known as the “appeals system.” Does the option of an appeal exist in the Torah system of judgment as well, i.e., when it comes to the decision of a beis din? May an appeal be made elsewhere by a litigant after a decision was rendered in one beis din? At first glance, it would seem that the answer is no, as no explicit mention is made of such an option in the Gemara or Shulchan Aruch. Rather, the decision of beis din is usually assumed to be final. However, in truth, the issue is somewhat more complex, and there are sources that do seem to indicate that this may be a possibility. In this series, we will explore the various sources on the topic and attempt to discern whether this is indeed possible, and under what circumstances.

The first possible mention of such an option is actually made by the Seforno in his commentary on Chumash. When Yisro, Moshe’s father-in-law, visits the Jewish people, and suggests the idea of appointing multiple judges to ease Moshe’s burden in dealing with every single dispute, he refers to creating “sarei alafim, sarei meos, sarei chamishim v’sarei asaros;”“leaders of thousands, leaders of hundreds, leaders of fifties and leaders of tens” (Shemos 18:21). According to Chazal, cited by Rashi, this somewhat ambiguous phrase refers to a hierarchy of multiple levels of judges. The lowest level judges would each administer to the needs of groups of ten individuals, the next level judges would oversee the legalities of a total of fifty people, and so forth.2

However, the nature of the relationship between the different level judges is still somewhat unclear, as if the sarei asaros would advise the people, the other levels of judges should not be necessary. Although the simplest explanation is that the higher-level judges were needed for cases where the lower-level judges were unable to answer the question, the Seforno suggests that the cases began at the lowest level, but one who felt the verdict was unfair would go to the next level and “appeal” his case. If after that hearing one of the parties still felt the ruling was not fair, they would bring the case to the next level judge, and so forth. According to this system, very few cases would actually reach Moshe himself (which was the goal of the system). This, in effect, is parallel to the modern system of appeals, and if this was indeed the system established for the Jews in the wilderness, perhaps it can serve as an early model for the concept. However, the comment of the Seforno cannot necessarily serve as an actual halachic basis for it, since the system of sarei alafim and sarei me’os does not directly parallel that of the system of batei din later developed by the halacha. Therefore, we must look to the classic Talmudic literature of the Gemara and Rishonim.

  1. Does One Beis Din Review the Decisions of Another?
  1. The Gemara

As mentioned, the Gemara does not address the issue directly. However, there are one or two passages that may be somewhat relevant to the question. The Gemara (Bava Basra 138b, Yevamos 106a) discusses whether a beis din must verify that the lineage of individuals who request that chalitza3 be done is accurate if the dayanim do not know them personally. The Gemara concludes (in accordance with the opinion of Rava) that they must do so, as another beis din who hears the case afterward will assume that the first one already performed the proper investigation, and that the facts are accurate, and will not initiate an additional analysis of the case, “bei dina basar bei dina lo daykei.” However, witnesses testifying about such a case do not have to know all of the details, as they can assume that the beis din will investigate properly. Essentially, the first beis din must make sure to get the facts and the ruling correct.

The simple interpretation of the Gemara is that in practice, a beis din will not question or review the ruling of another beis din. If so, this rule is simply descriptive of what occurs, but not prescriptive. However, a number of rishonim seem to interpret this statement as saying that a beis din is not supposed to review the decision of an earlier beis din.

  1. Interpretations of the Rishonim

The Rosh seems to take this approach in a responsum (Teshuvos HaRosh 85:5), where he says he is surprised that his correspondents were asking him a question about the ruling of another beis din, as once that beis din has already ruled, there is no reason to ask him, and it is impossible to issue an opposing psak. The Rosh then quotes this Gemara as a proof to this statement. Although the Rosh notes that the earlier beis din in that case consisted of “anashim gedolim v’nichbadim,” great and esteemed individuals, many acharonim claim that this does not affect the rule, and regardless of the stature of the first beis din, another beis din may not discuss the case again.

A similar ruling is issued by the Chazeh HaTenufa (cited in the Beis Yosef C.M. 12:16), a work also attributed to the Rosh, where he discusses one who won a case in beis din, whereupon the loser attempted to bring the case to another beis din. Here too, the author rules that the winner is not required to go a second time, or even respond at all. In addition, he says that the second beis din is not even permitted to listen to the case, since the first beis din had already ruled on the matter.

There is also a third responsum written by the Rosh, which is a bit harder to understand. He says that if two parties accepted the authority of a single dayan to rule in their case as opposed to the regular three, they may not retract their consent to the psak, even if they both agree to retract. However, it is difficult to understand why if they both agree, they cannot simply arrive at a different compromise, as no one is stopping them from doing so. The Beis Yosef raises this question and cites two possible answers. He prefers the second one, which is that one may not go to a different beis din as it is disrespectful to the honor of the first. The Darkei Moshe argues though that the issue of disrespect is irrelevant here: If the parties do not agree, then the ruling of the first beis din remains binding, and if they agree to a different compromise, then they are simply agreeing to a new deal, which is not a lack of respect to the dayanim. He therefore offers a different interpretation than those of the Beis Yosef.

The Bach and other acharonim though agree with the Beis Yosef, and rule that due to the kavod of the original dayan, one may not go to another beis din or attempt to reach a separate resolution. The Bach explains that the Rosh means that even if the baalei din, the litigants, disregard the prohibition and nevertheless go to another beis din, the second beis din itself is not permitted to listen to the case and issue a ruling. According to the Bach’s understanding of the Rosh, all three of his responsa revolve around the issue of kavod beis din, honor of the beis din. Thus, the Beis Yosef and Bach introduce a new dimension here to the issue of appeals: We would think that the question of whether appeals are allowed according to the halacha focuses on the rights of the litigant, who feels that he was not properly heard out in the first case, but according to this approach, there is also an additional concern of maintaining the honor of the first beis din as well.

This dual approach is adopted by the Choshen HaEfod (C.M. 42) in addressing the appellate system in his day (see below for more on the background of his ruling). He claims that this idea originates in the responsa of the Chazeh HaTenufah, and rules that appeals are not permitted. He explains that this is both because the winning litigant should not need to reargue his case, plus the issue of kavod beis din requires that we not disregard the first ruling, and that the Chazeh Tenufah accepted both of these ideas as true.

The Choshen HaEfod also cites a responsum of the Edus B’Yaakov, who indicates he is not concerned with the issue of kavod beis din, but the Choshen HaEfod says the halacha is not in accordance with this minority position. He elaborates that one might argue applying the concept of kim li like the Edus B’yaakov in this case: The losing party who does not wish to pay can argue that he holds like the Edus B’yaakov that he need not give the money until the second court is allowed to hear the case. However, the Choshen HaEfod responds that this will not help here, as no other beis din will be willing to take the case anyway, due to the consensus of most of the other poskim. Therefore, the litigant will be forced to accept the first ruling. Furthermore, argues the Choshen HaEfod, the notion of kim li should not apply here, as there is a prohibition involved of not demeaning the honor of a Talmid chacham, and certainly a dayan. Since the rule is that kim li may not be applied if doing so causes the relevant party to possibly violate a prohibition, it is not relevant. Therefore, the Choshen HaEfod concludes that one may not appeal a decision in beis din.

Another teshuva, responsum, brought by the Choshen Haefod and others that may be relevant here is authored by the Ran, who apologizes to dayanim for apparently issuing a ruling that he then discovered had been ruled upon by them already. He consequently asks for forgiveness, and explains that had he known, he would have sent the litigant away, since one who argues against the ruling of beis din is meaningless. However, the Ran says he was misled, and thought the original beis din was asking to hear his opinion, so he gave an answer. Clearly, the Ran holds this may not be done, and he too seems concerned about kavod dayan, since he apologizes to the beis din, not to the litigants.

  1. May One Ask the Ruling Beis Din for an Explanation of their Ruling?
  1. The Passage in the Gemara

There may be an additional relevant sugya as well, which is found in the Gemara (Sanhedrin 31b): If two disputing litigants argue as to where to take their dispute, with one requesting to go to the local beis din, and the other arguing to go to the makom vaad, the place where a higher beis din is convened, we may compel them to have the case judged in the local beis din. However, if the local one cannot rule or resolve the dispute, then they may ask other batei din by sending them questions in writing. The passage concludes that if one of the litigants wishes to know the reason for the ruling of the local beis din, me’eizeh ta’am dantuni, the beis din must accede to his wishes and give him a written account of the case.

Rishonim dispute whether this is required only in the case where one of the parties did not wish to go to the local beis din but was forced to do so,4 or whether it applies in any case where a ruling is issued that one party does not like.5 The Rema (C.M. 14:4) cites the former opinion as a yesh omrim, some say, and concludes that it should be the accepted one.

  1. The Logic Behind this Passage

What is the logic for the opinion that the litigant is only entitled to say eizeh taam dantuni if he was forced to go to the local beis din? Why would he only be allowed to request clarification if he was compelled? The Sma explains that once a person has accepted the authority of a verdict of beis din, he may not retract. This seems to indicate that the reason for writing this is that he was forced to go to that beis din, and now he does not wish to accept their verdict. Instead, he would like to take to the case elsewhere afterward and bring the accompanying explanation with him. This is explicit in the Nimukei Yosef who explains that when the beis din does write him an explanation, it does not mean that they issue a ruling with a reason, but rather they send him a short summary of the claims, and explain which one they think is right, but without any background explanations. Clearly, the reason for doing so is that the litigant can later take this to a different beis din and attempt to be tried again, and the other beis din will be able to understand the reasons of both sides without them being specified in this document.

The Sma and the Gra explain further there is no need to write the reason in this case, since all dayanim would regardless arrive at the same logic as each other for either side. Therefore, the second beis din (or the beis havaad, the higher beis din, in the Gemara’s case)can determine the logic for both sides, and then judge if the decision of the first beis din was correct or not. It is implicit from these sources that the reason for writing this document is not for the litigant’s edification and to explain to him the reason behind the ruling.6 Rather, the reason for doing so is to take the transcript to another beis din to have it reconsidered.

If so, then it seems from this sugya, as explained by the above sources, that there is indeed a possibility that a second beis din may be allowed to review a ruling of an earlier one. This would appear to contradict many of the sources discussed in the previous section above, who state that this may not be done. According to the opinion brought by the Rema that the beis din need only provide an explanation for the ruling where the litigant was forced to go there, one could resolve the contradiction by saying that only in this case may the decision be reviewed. However, where both litigants agreed to go to the local beis din, it is never permitted to take the case to a different beis din. This is indeed the approach taken by some contemporary acharonim. However, if one accepts the opinion that even where both parties agreed willingly to have it judged locally, one may still request an explanation to take elsewhere, the problem must still be resolved, and the relationship of these two passages in the Gemara is truly unclear.

  1. Expanding the Parameters of Being Compelled

Rav Yechezkel Landau (Noda B’Yehuda Mahadura Tanyana C.M. 1) expands the parameters of kefiya, being compelled to go to a specific beis din, even more broadly. He was asked by a dayan whether the dayan must justify his ruling in a specific case where one of the litigants insisted on him doing so. The Noda B’Yehuda responded that even if there is no concern, the dayan must still give the transcript of the case in writing to the litigants. He then adds that even if the litigants did not come willingly, but received a summons, it is still classified as kefiya, as the mere act of issuing a summons is akin to saying “I didn’t want to come.” Therefore, the Noda B’Yehuda rules that in any case of a summons, the losing litigant may appeal the ruling, especially “in our generation,” where there are numerous errors made by dayanim.7 He concludes that it is a “davar pashut,” an obvious matter, that it must be put into writing, and “no rabbinic figure is suspected by me of not wanting to do this [to accept his ruling without review], except if he knows his ruling is incorrect.” It seems clear from R. Landau’s response here that he too permitted reviewing the case.

In Part two of this series, we will continue to examine sources about appealing a decision in beis din, and focus mainly on whether later generations are more likely to err, and the implications for using an appeals system in batei din in contemporary times.

1 This article is based on a shiur given by Rabbi Yitzhak Grossman, dayyan in Beis Din Maysharim.

2 There are other explanations given for this as well. For instance, according to Ibn Ezra, the “thousands” and “hundreds” refer to the servants and helpers, not the people whom they were supposed to judge. Therefore, sarei alafim refers to prominent individuals who had thousands of servants or other staff, and sarei meos means those who had hundreds of servants.

3 Chalitza is the ceremony required by the Torah when a married man dies without any children, and the brother of the husband, who is enjoined to marry the widow through a process called yibum does not wish to do so. The Torah describes how the brother must declare that he does not wish to marry her, and she then removes his shoe and spits on the ground (see Devarim 25:7-10).

4 This position is quoted by the Darkei Moshe (C.M. 14:8*) in the name of the Mordechai, as well as the Nimukei Yosef (Sanhedrin 10a in the pages of the Rif), and possibly the Tur as well. Tosafos (Sanhedrin 31b) also appears to adopt this position.

5 This is the position cited by the Beis Yosef (C.M. 14) in the name of Rabbeinu Yerucham.

6 This is therefore different from another case discussed there where this may be allowed.

7 The Noda B’yehuda here, like many other poskim throughout the generations, understands that the dayanim in his time were less competent than those of preceding generations.