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The Halacha Center
The Center for the Study and Practice of Monetary Halacha
THE BAIS HAVAAD HALACHA JOURNAL: Volume 5777 Issue XXXV Shelach
Appealing a Bais Din Decision Part II
Is there a concept of appeals in the Bais Din system?
By: Rav Yitzhak Grossman1

Appealing a Decision of Beis Din: A Contradiction of Terms? Part 2

Introduction

In Part 1 of this series, we began examining a talmudic precedent for the possibility of appealing a decision of a beis din. We noted a few potentially relevant sources in the Gemara and Rishonim, some of which appeared to indicate that appealing a decision would not be recommended or permitted, while others may have supported the idea, at least when one of the litigants had been forced to go to a specific beis din against his will. We concluded with the citation of the Noda Byehuda who argued that even if a litigant received a summons to go to beis din, this too may qualify as being “forced” to go, and he may be allowed to question or appeal the decision afterwards.In Part 2, we will analyze whether it may be easier to permit appealing in later generations for some reason, and the practical opinions of poskim today on the subject.

  1. Are the Decisions of Later Generations More Liable to be Mistaken?

The Noda B’yehuda mentioned that in his generation, it was especially important to allow the review of decisions, since forgetfulness is common, and many errors are made by dayanim. This point is actually subject to a major dispute, which will play an important role in the halachic development of this issue through modern times. Although as we mentioned, the Beis Yosef, and many authorities after him, rule that one beis din should not reexamine the conclusions of another, a number of authorities argue that in later times, this principle is no longer operable. The Radbaz (printed by Rav Karo himself in Teshuvos Avkas Rochel Siman 21) was the first to adopt this position, and claims that even in his time, one beis din can reexamine the conclusions of another, because they are not as expert as in previous times. The Radbaz points to a number of passages in responsa of the Rashba and claims that the Rashba too supports this. It should be noted though that the Beis Yosef there (in the glosses) argues with the Radbaz and claims the case of the Rashba was “zar,” meaning it was unusual, and no proof may be drawn from there. The Shoel UMeshiv explains that to mean that that case was of a little known halacha, and only for that reason did the Rashba allow appealing that ruling, but in general, appeals are not permitted.

The Mabit (2:173), another contemporary of the Beis Yosef, cites the Tzror HaKesef (a student of the Rashba), who also agrees with the Radbaz that even in his time, many dayanim were not experts, and therefore the rule of lo dayki does not apply. The third source that adopts this position is the Maaseh Chiya, who adds that this is especially true in small towns. He explains further that even though the Gemara says there is no concern of a beis din to’eh, a beis din that errs, today everyone, even great Torah scholars, are less knowledgeable in Torah.

Despite the logic of the Radbaz, it seems that the majority of acharonim accept the opinion of the Beit Yosef and reject the opinion of the Radbaz. For example, the Shach says explicitly that even today, one beis din may not reexamine the conclusion of another, and this is the conclusion of Rav Refael Yitzchak Mayo as well.2 He writes that the Beit Yosef was doche dichui gamur, rejected the other opinions entirely. Therefore, since the Rosh, Rambam, and Beit Yosef and others all cite the rule of beis din lo daykei, and do not distinguish between earlier and later generations about this issue, we accept this principle for all future generations as well. He adds that the principle is quite logical even today, as if the losing litigant is allowed to appeal any decision that he wishes, it will have disastrous results, and cause degradation of the system. The

Chikrei Lev responds that the Radbaz is not a lone opinion, and as mentioned, a few other authorities agree with him. However, even the Chikrei Lev appears to nevertheless accepts the conclusion that the halacha is in accordance with the majority opinion.

Another authority who rules that reexamining decisions is never permitted is the Shoel Umeshiv. He too rules like the Beit Yosef, and cites the many other acharonim that agree with him. He acknowledges the arguments of the Radbaz, but says that we still reject them.3 The Chacham Tzvi also takes for granted that one cannot appeal a decision of beis din, though his argument is not focused on the consequences and lack of dignity for the first beis din; but rather with the fact that it is unfair to the winning litigant to be forced to have to undergo another case. Rav Chaim Palaggi also authored a large teshuva about this topic (in Semicha Lchayim), where he cites all of the above literature, including those that agree with the Radbaz. He concludes as well that the consensus is that we do not reopen the case.

Rav Meir Melamed, (in the Mishpat Tzedek), also discusses this question, and notes that even if we accept that the Gemara’s rule of lo dayki is prescriptive, as the Rosh appeared to say, perhaps it only applies when the beis din is composed of great scholars, and this is what the Rosh noted that in his case, they were noted chachamim. However, he responds that the Chazeh Tenufa held that it did not matter, and therefore the rule should apply in this way in all cases. This is accepted by later acharinm.

Rav Mayo also cites this ruling of the Mishpat Tzedek that there is no difference in cases based on how great the dayanim were on the first beis din. However, the Chikrei Lev had mentioned that the Maharit held that certain complex and lesser-known halachos about which dayyanim might err we can only rely on the first beis din if it consists of experts. The Chikrei Lev also tries to argue that this may be the position of the Yad Ramah in Bava Basra. Thus, just like the Beit Yosef conceded that the Rashba held one could review the decision of a beis din, but claims that case was different and “strange,” so too the Chikrei Lev also says that some cases may be different from the usual rule, and in those where a mistake is likely, then even the Beit Yosef would agree in today’s times. However, the Choshen HaEfod follows the Mishpat Tzedek and Rav Mayo, and argues that one beis din may never second-guess another, regardless of the case.

  1. What if Beis Din Just Happened to See the Case?

Even if the rule is accepted that there may be no second-guessing or review, there is one exception mentioned by Rav Chaim Palaggi: He says that although the second beis din does not reopen a case intentionally, and they should rely on a chazaka, halachic presumption,that no error was made, if they do happen to see the ruling, and believe that it is incorrect, then their critique of the decision is accepted. He explains that in this case, the second beis din can’t simply pretend that they didn’t see the ruling; rather once they have seen it, they must evaluate it as they see fit. Rav Palaggi adds that this situation is a common occurrence, and is included in the Gemara’s case of to’eh bdvar mishna, a court that makes a clear error on an explicit Mishna or halacha, where of course the ruling must be retracted. He says we don’t presume it is incorrect, but if we know that it is, then it can be overturned. Moreover, he says that the first beis din themselves would be happy to have their psak overturned if they knew it was wrong, similar to the Gemara (Bava Metzia 59b) where Rabbi Eliezer demonstrated that his opinion about a particular issue was clearly correct and that even Hashem agreed with him. Nevertheless, the majority of chachamim there rejected it and said that the halacha is not determined in heaven, and the Gemara comments that Hashem was smiling at that time, and declared that “my sons have bested me,” meaning He was happy that the Sages did not rule in “His” favor if they felt it was incorrect.

  1. Appeals in Beis Din in Modern Times

During the modern era, this issue of halachic appeals has become even more relevant, as most western democracies have a formal system of appellate and review. Consequently, many modern poskim have needed to confront this question in this context.4

  1. The Choshen HaEfod

The earliest responsum on the subject is that of the Choshen HaEfod (mentioned above), which was written in the early 1900s. In Sofia, Bulgaria, there was a large meeting of roshei kehillos, heads of communities from Bulgaria, where they voted to establish a type of central beis din that could serve as the address for litigants who were unhappy with the ruling received by one of the local batei din. Following that decision, a case arose where the loser wanted to appeal, but the winner responded that it was not permitted, as that is not the halacha. The winner retorted that in their country, this is the accepted custom, and the loser must go with him, while the loser responded again that it does not matter, as the halacha does not sanction such a practice of compelling him to be retried. So the Choshen HaEfod was asked the question, and elaborates on the matter, focusing on zilusa d’beis din, degradation of the beis din, and he leans strongly to the side that the case may not be reheard, both due to this factor, as well as because of the unfairness to the winner.

In the middle of his discussion, though, he changes his direction entirely, and claims that all of the poskim who ruled that a case may not be reheard were referring to standard cases. However, in his case there was a takana, an actual enactment, and it was designed to function as a regular system. Given this, he concludes that it certainly must be done, and this type of takana is no different than any other takana discussed in the laws of Choshen Mishpat, which are permitted. He adds that even though it also involves a potential prohibition of zilzul beis din, nevertheless once this has become the official policy of the community, the consideration of zilzul is no longer relevant. Finally, he says since it is adaata dhachi, everyone who uses the system is aware in advance of the possibility of appeal, including the litigants, the witnesses, and the dayanim, and they accept this completely. Therefore, he concludes that there is no problem.

  1. Rav Kook and the Rabbanut in Israel

In contemporary times, the most common example of such an appeals system is that of the Rabbanut in Israel, which utilizes a beit din l’irurim, a beis din of appeals, where unhappy litigants that were previously judged in a regional beis din can appeal their case. It was begun in 1920 when Palestine was under the control of the British, who may have pressured them to introduce this appellate system based on the western legal system. The rabbanim at that time argued about it, but Rav Avraham Yitzchak Kook, the chief rabbi of Palestine, felt that they could and should establish it.5 He doesn’t enter into all of the details of the sugya, but simply claims that this is a takana, and therefore it is valid, which is consistent with the approach of the Choshen Haefod. Rav Kook also gives several examples of other takanos that went against rules given by the Gemara.

  1. The Tzitz Eliezer

Rav Eliezer Waldenberg (Tzitz Eliezer 16:67) also discusses this question in the context of the Israeli beit din l’irurim, and notes that although the sugya of appeals is complex, this situation is totally different. He cites and expands on the same premise given by the Choshen HaEfod, that everyone who utilizes the system knows and agrees to the rules. He adds that even the charedim kitzonim, extremist charedi elements who do not accept the state, also use it for appeals, as he knows from his own experience.6 He also notes that such an institution existed in earlier times in other places, such as in Turkey. Moreover, he notes that because the beis din gives a summons to appear before them, the issue of lo dayki does not apply, as that is only when they appear voluntarily. However, if we issue a summons, then the litigant can ask for an explanation to bring to another beis din for review, which is based on the Noda B’Yehuda above. Rav Waldenberg concludes by assuring the questioner that in a case of such a modern system of appeals, “ein makom l’arer klal,” there is no reason to protest whatsoever.7

  1. The Mishpetei Uziel

Rav Ben-Zion Uziel, the first Sephardic chief rabbi of Palestine also has a long teshuva discussing this issue (Mishptei Uziel C.M. 1). He essentially attempts to defend the practice, against the objections of other rabbanim such as Rav Chaim Hirschenson (the author of the responsa Malki B’kodesh). He first argues that the expression of bei dina lo dayki in the Gemara only means that it was common practice not to do so, but it was never meant to be an actual issur, prohibition, and it is permitted for one beis din to review the decision of another. On the other hand, though, he agrees that this never existed in the times of the Gemara. Although they did have higher batei din (the beis havaad referred to in the Gemara Sanhedrin 31b), appeals was not its primary function. However, he insists that this is not because Chazal were against it, but rather because they wanted anyone who went to any beis din to rely on it and trust its decision, not expecting to appeal afterward. Therefore, if a mistake was suspected, then even in the time of Chazal it could be reviewed.8

Rav Uziel then segues into some more non-halachic considerations, stating his opinion that if the people desire it (which he assumed was true, as opposed to saying the British imposed it), then we don’t have the right to block the halachically legitimate demand of the people, and we must listen and give them what they want. He invokes the idea that when the non-Jews have a positive idea, it can be used within the Torah world as well, as well as a Midrash that says that the people tell dayanim what to do, meaning that they must satisfy the demands of the people if they are legitimate, and this will bring them closer to Torah. If they will appreciate this institution, and it will give people more respect for the Torah system, then that itself is a reason to do it.

Rav Uziel then returns to halachic considerations, and argues that if one would argue against the appeals system that a dayan is not allowed to invent new practices, we can respond with the argument given above in the Choshen HaEfod that since this is a takana and all accept it as being the normative system, it is justified. Thus, the Mishpetei Uziel agrees with many of the other modern poskim that defended its existence, but adds in some interesting additional thoughts along the way.

  1. Yabia Omer

Rav Ovadia Yosef also discusses this question (Yabia Omer 9:CM 2) with regard to the system that existed in Egypt when he was the rabbi there, as well as regarding the system in Israel. He first says, like the Mishpetei Uziel, that lo dayki means that they just didn’t do so in the times of the Gemara. Interestingly enough, Rav Ovadia does not cite the earlier Rishonim who argued with this in his usual encyclopedic style. He does cite the Chazeh HaTenufah, though, and argues that many cases involve being forced to submit to a decision, where kefiya would be a factor. In that case, he argues that one would be allowed to engage in appeals, based on the Noda B’yehuda. He continues to argue that as for the issue of the kavod of the beis din, they are allowed to waive it. He also mentions the point that once it is already an accepted custom, it is permissible. Rav Ovadia therefore rules that this system is very worthwhile to institute, since it will give legitimacy to all rabbinic rulings issued the batei din, and the government will cooperate with the system of batei din more because of it.

Rav Ovadia also claims that he believes this idea should be viewed as actually explicit in many of the poskim. He explains that when an appellate overrules an earlier decision, it is often due to sources that they discovered of which the first beis din was unaware, or did not apply correctly. Therefore, says Rav Ovadia, this case is one of to’eh b’dvar mishnah, making an error regarding an explicit ruling, which all agree should be corrected by others. He adds that many rabbanim did indeed review and find mistakes with earlier rulings, since today forgetfulness is common. He then cites the Radbaz discussed above and claims that even though the Beis Yosef rejects it, maybe today, all would agree with the Radbaz, due to the notion of yeridas hadoros, the deterioration of the spiritual level of the generations. Therefore, he says, although the practice was controversial, it has already been adopted as the widespread custom, and is permissible. It should be noted though that with regard to his point that many overturned rulings should be considered to’eh b’dvar mishna, the truth is that many cases are unclear, and the decision might be based on logic and different perspectives rather than simply different sources quoted.

Summary

Let’s summarize the main points of what we have seen here:

  1. The Gemara comments that one beis din does not investigate the conclusions of another. It is unclear whether this is a descriptive statement, or a halakhically binding one that must be followed. Many commentaries feel that it is indeed instructive. If so, two reasons are offered for it:
    1. The right of the victorious one not to have to reargue his case
    2. Respect for the first dayan
  1. The Gemara writes elsewhere that the losing litigant may ask the beis din in writing for an explanation of why they judged him in the manner that they did. The acharonim explain that this may be due to the right he has to appeal the decision. Some commentaries held that this is only allowed where he was forced to appear before that local beis din that issued the decision, while the first passage in the Gemara is where both willingly appear.
  1. The consensus opinion is that in principle, the rule of lo dayki, not reviewing a case in another beis din, does apply, even if the dayanim are not great Talmidei chachamim, though some, such as the Radbaz, disagreed.
  1. Some poskim held that if the halacha in question was complex and not well-known, we may suspect a decision in error, and review the case. Rav Ovadia felt today that everyone would agree with this assessment, as we are on a very low level of Torah knowledge.
  1. Many modern poskim argued that even if we accept that the rule of lo dayki applies in all cases, this is only true where no universally accepted system of appeals exists, and only ad hoc review takes place. However, if the community and its leaders establish a system, takana, enactment, or minhag, custom, to introduce this system, and everyone participates and enter with full understanding of how the system works, then many (though not all) argue that this is completely permitted. No degradation to the beis din exists, and it does not violate the rights of the litigant. Finally, as noted by the Tzitz Eliezer and Yabia Omer, this system has already been in place in Israel for a while, many gedolim even sat on it, and it is the common custom today.

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

2 One Teshuva of his is printed in the Chikrei Lev, and another one is found in his sefer, the Sfas HaYam.

3 It should be noted that the Shoel Umeshiv has another teshuva where he discusses the second sugya of dantuni brought above, where the litigant is allowed to ask for a written explanation for the ruling. In this context, R. Nathanson actually cites the Avkas rochel’s presentation of the Mabit (mentioned above) that today the beis din is not completely authoritative, and batei din should therefore always spell out the claims of each side and the ruling. This ruling, though, is essentially identical with that of the Radbaz, since the point of spelling out the case in writing was to allow it to be reviewed elsewhere, as discussed earlier. If so, it seems that it is unclear with which opinion the Shoel Umeshiv sides. This ambiguity is itself a product of the fact that the two talmudic passages themselves are somewhat contradictory, and it remains unclear exactly how they are to be reconciled.

4 In addition to the sources quoted in this section, see also Techumin 15, p.187, where Rav Chaim Dovid HaLevi (former chief rabbi of Tel Aviv) has an article surveying the issue.


5 This exchange took place in a number of letters, including one cited in Techumin (Vol.1 p.5), where he simply says they should establish it.

6 Rav Waldenberg himself served on this beis din, together with Rav Eliashiv and other great rabbanim.

7 This is also a play on words, as the Hebrew word for appeals is irur, the same root as l’arer, to protest.

8 On this point, he argues against even the Radbaz and others who said that times have changed, and review would not have been allowed in the times of the Gemara.

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OTHER ARTICLES IN THIS SERIES:

APPEALING A BEIS DIN DECISION- PART I