Does either litigant in a beis din case have the right to insist on zabla?

Does either litigant in a beis din case have the right to insist on “din” (and not peshara)?

Answer:

Where there is a Beis Din Kavua a litigant cannot demand zabla.

However, where there is no Beis Din Kavua, which is the situation today for most places according to the ruling of Rav Moshe Feinstein and others (see Rema, Choshen Mishpat 3:1; Iggros Moshe, Choshen Mishpat 2:3), a litigant has the right to demand zabla.

See also Shut Shevet HaLevi (8:302), who disputes the ruling of Rav Moshe – but the principle ruling remains that today a person can demand zabla.

Concerning Din and Peshara, a similar principle will apply: In a Beis Din Kavua a litigant cannot make demands, but in a Beis Din that is not Kavua the mandate of the Beis Din will depend on the scope of the Shtar Borerus that is signed by the parties. Today, the Shtar Borerus always mentions the option of Peshara.

Best wishes.

 

Tags: Zabla

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2 Responses to “Litigant Insisting on Din or on Zabla”

  1. Just to clarify, in a non-kavua beis din, prior to the start of the case can either of the litigants absolutely insist (i.e. state they will only accept) din and adamantly refuse to accept peshara as a basis? Regarding the shtar borerus, can the litigant insist he will only sign a shtar borerus that does not allow for any decision other than din?

    Especially if the insisting litigant is the defendant, and it is the plaintiff seeking recourse from him, if the defendant exercises his halachic right to demand din and won’t accept the jurisdiction of any non-kavua beis din that insist on using peshara or sign a shtar borerus that allows peshara, that leaves the plaintiff if the position of having to find a mutually acceptable beis din or zabla that can accommodate the defendants insistence for din?

    • This is something of a problem. Although a non-kavua Beis Din cannot impose peshara, today it is not easy to find Batei Din that are prepared to adjudicate a case without having the option of giving a peshara pesak.
      This will be more possible for a zabla arrangement, and not for a regular Beis Din. A defendant however has the right to insist on zabla, and at the same time he can request that the zalba panel grant a judgment based on Din and not peshara.
      If he doesn’t succeed in finding such an arrangement, he will have to eventually go to a Beis Din that will retain the right to give a peshara pesak.

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