In any legal proceeding, it is necessary to limit the procedure in the legal order, in order to enable and focus a fair process that leads to the investigation of the truth and to prevent the use of legal proceedings intended to harass the litigant and cause him harm.
In modern legal systems, the matter is regulated by laws and regulations for legal procedures, but in Jewish law, legal procedures are few and not rigid, as the investigation of the truth is the dominant consideration. The law assumes that litigants have a presumption of innocence and are innocent and will not exploit the process to harass and cause harm. However, we have nevertheless found sources that draw a line between the need to investigate the truth on the one hand and the need to prevent a vexatious proceeding on the other.
There is a Mishnah in Tractate Sanhedrin[1] which can shed light on this issue. The Mishnah consists of a general law and three more parts, each part containing a law. In the first parts there is a dispute regarding the law mentioned as a dialogue between Rashbag and the sages, but in the third part the law is agreed upon by all. And the following:
Agreed law
Every time someone brings evidence that contradicts the law.
Dispute A
He said to him, "Bring whatever evidence you have from there within thirty days. If you find it within thirty days, it contradicts you. If you find it after thirty days, it does not contradict you." Rabban Shimon ben Gamliel said: What should he do if he did not find it within thirty days and found it after thirty days?
Dispute in
He said to him, "Bring witnesses," and he said, "I have no witnesses." He said, "Bring evidence," and he said, "I have no evidence." And after a while, he brought evidence and found witnesses. This is nothing. Rabban Shimon ben Gamliel said, "What should one do who did not know that he had witnesses and found witnesses? He did not know that he had evidence and found evidence?"
Agreed law
He saw that he committed a crime and said: "So-and-so approached me and I was fined," or that he brought out evidence from under his own head, then this is nothing.
Let's analyze things briefly:
The general principle is that a verdict can be overturned by new evidence unless the judges are asked to rule otherwise.
The first controversy is: When a litigant seeks to limit the opposing litigant from presenting evidence for 30 days, the Sages believe that the court can make such a decision. The Rashbag believes that this is not within their authority, as this could result in injustice if it is discovered later that the litigant is being restricted from presenting evidence. It is clear that the dispute between the Rashbag and the Sages is which interest to prioritize, the investigation of the truth or the finality of the law, order and stability that allow a person to plan his financial future.
The second controversy This is a more advanced stage. This is a case where the litigant admitted that he has no more evidence and no additional witnesses, and there is no request on behalf of the other litigant. Can this admission limit him in the future and constitute a basis for order and stability? Here too, the Sages and the Rashbag disagreed, with the Rashbag preferring the manifestation of justice over stability.
The last paragraph, "He saw that he was committing, etc." - Rashi interprets it as a continuation of the previous case in which the litigant said he had no evidence and found evidence. That is, after seeing that he was about to lose, he changed his mind and said he had evidence. Here Rashbag agrees with the sages that the circumstances indicate that he sought to have witnesses testify out of a desire to mislead the court and save himself from committing himself to the case, and if he had known about these witnesses, he would not have admitted that he did not have additional evidence.
The poskim disagreed on whether the law was based on the Rabbinate or the Sages, with the poskim touching on a variety of circumstances in which a person attempts to continue the discussion or embark on a fishing expedition for witness evidence and documents.
However, in practice in today's property courts, since they adjudicate according to their authority as arbitrators, and in the existing arbitration agreement they are granted the authority to deviate from the law and broad discretion, they do not see themselves bound by cogent jurisprudence and act in each case on its own merits for reasons of justice and an individual balance between the conflicting interests.
Furthermore, as part of the interpretation of the Mishnah, the Gemara brings up a dispute between litigants, where one wants the parties to conduct the hearing at the "committee place" where more knowledgeable and important scholars are present and because of this the litigants will be ashamed to lie to them, and the other claims that this involves great expenses that would be saved if they were to hear the case in the city. Rabbi Yochanan believes - force him to go to the committee place and Rabbi Elazar believes - force him to hear the case in his city.
Here too, the dispute is not so significant at this time, as in the current legal situation the parties must agree on a specific composition and appoint them as arbitrators. However, it can be concluded that in the event that they have accepted arbitrators and a party requests to appoint an expert, or requests the court to travel a distance and personally experience the condition of the property or the scene of the event that is the subject of the financial dispute, then the court will make a decision that balances the advancement of justice with the expenses involved.
In general, this issue is also consistent with the Jewish legal system on other issues, to prioritize the pursuit of justice over public order, as there is a goal in law beyond social harmony, which is the fulfillment of law and absolute justice, through the laws of the Torah as a divine revelation and an expression of the will of the Creator.
Rabbinical advocates and experienced attorneys carefully review the wording of the "Bill of Arbitration" in this matter, and in cases where the opposing party has difficulty obtaining evidence, such as in circumstances where there is no documentation in the documents, or when the circumstances took place abroad, or a long time ago, they will seek to limit the authority of the court and prevent a fishing trip from the outset. However, the court generally does not agree to change much in the "Bill of Arbitration" if at all, and this should be discussed at the first invitation before signing the bill of agreement.
In the next article, we will deal with another issue, which is finding evidence after the verdict has been rendered. Is it possible for a situation to arise where the court has already ruled in a ruling and then one of the parties finds evidence? Is it permissible for him to contradict the verdict and reopen the proceedings?
We will also review specific cases from the sources of the jurists of recent generations, in order to illustrate and see a concretization of the exercise of the considerations within the authority of the dayanim as arbitrators, and we will attempt to establish rules and have them translate the principles into the language of action.
Attorney and Rabbi Eliyahu Schwartz fromWolfson Weinstein & Co.', specializing in Torah law andLitigation.
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