Monday, October 31, 2011

Botei Dinim & Toi'anim these days-enlighten yourself

Ami Magazine interviews Rabbi Hershel Schachter.

Q & A with Rav Hershel Schachter
Rabbi Hershel Schachter is a rosh yeshiva at Yeshivas Rabbenu Isaac Elchonon, one of the main halachic consultants for the Orthodox Union, and a renowned posek, marbitz Torah and author of sefarim. He is a passionate advocate for reforming the present bais din system.
Ami invites debate on the important issues raised by Rabbi Schachter and intends to run a series of articles including a spectrum of viewpoints on the subject.

Q: Unfortunately many kehillos in the charedi community are taking their disputes not to bais din, but to court. That seems to say that there is a problem with the way people perceive batei din, a crisis. You have been outspoken about the bais din system. What is your assessment?

A: The present system is terrible. There is a Mishna in Pirkei Avos that the oilam says a vort on. It says, “K’sheyihiyu habaalei dinim lifanecha, yihiyu b’einecha k’resha’im. K’she’yaamdu m’lifanecha yihiyub’einecha k’tzaddikim, shekiblu aleihem es hadin.” [“When the litigants stand before you (the judges), they should be in your eyes like wicked people. When they stand up from being in front of you, they should be in your eyes like righteous people, because they have accepted the judgment.”] They say from a few different dayanim that they would put a tallis over their face, to not see the face of a rasha. But that is wrong; part of the din Torah is to look at the person and see from his facial expression and how he talks...whether or not he is saying the truth. You have to be able to detect whether he is telling the truth. Any judicial panel must get to the underlying facts and the truth in order to render a proper decision. Unfortunately that is not always the case in the present-day bais din system.

Q: Did you come to this conclusion from personal experience?

A: I was once asked to sit in on a din Torah to see that there wouldn’t be any shenanigans. I believe that it was a yeshiva against an administrator. The administrator just sat there while the toain [lawyer in bais din] presented the whole case. You have to hear from the administrator himself! How can the toain present the case? The toain can say all sorts of shekarim [lies], because he just says whatever the baal din told him. If the baal din himself says it, he’d be scared; he’d be shaking. You can tell if he’s telling the truth; nikarim divrei emes, nikarim divrei sheker. I thought it was terrible. What kind of a din Torah was that?

Q: Is that experience indicative of dinei Torah today?

A: Certainly. I remember another case where a widow had died and she had no children. The question had become who would get the yerusha [estate]. One of her relatives probably thought that, just as in the case of a geir shemais v’ain lo yorshim [a convert who dies without inheritors], the nichasim [property] become hefker (the property becomes ownerless), so too in the case of this almanah everything would become hefker [which is not true]. This relative, I believe it was a great-nephew, pocketed all the money. The other members of the family wanted a din Torah. Someone asked me to watch. The head of the bais din asked the great nephew, “How many bankbooks were there when your great-aunt asked you to take care of her finances?”He answered, “Four.”The dayan asked, “How much money was there in each account?”Suddenly the toain screamed out, “Don’t answer! You’re not mechuyav [obligated] to answer!”That was the end of the case. Had this been a secular court, they would have thrown him out the window. What do you mean, you don’t have to answer? A chutzpah! The dayanim want to find out the facts. But that was the end; there was nowhere to go after that.

Q: Are you saying that this is nowadays the general trend to obfuscate the facts?

A: There are countless similar instances when the toain instructs his client not to respond to a question. It also became the style now that when a couple is getting divorced, the toanim tell the husband to say that he wants shalom bayis, so that the bais din assumes that she is a moredes (rebellious wife), and she doesn’t get the kesuba. Ridiculous. One of the latest pieces of shtick was where a wife had apartment buildings, and the husband wanted a heter meah rabbanim so that he could have peiros nichsei milug [proceeds from a wife’s property], even after he was living with the second wife. This was written up in the New York Times and the non-Jewish lawyers were laughing at us. Such a chillul Hashem! This is what our religion stands for? Now they tell the husband to take peiros nichsei milug, even though he never took peiros during the marriage. He doesn’t know about it, so why tell him? Even if he knows that there are nichsei milug, but he doesn’t know that the husband gets peiros nichsei milug, Rav Moshe Feinstein says in his teshuvos that they are considered nichasim she’sinam yiduim [unpublicized property] and the Gemara in Kesubos says that the husband doesn’t get peiros from that property. So why are the toanim telling the husband that he is entitled? Just to make more agmas nefesh (aggravation)?

Q: Would you call then the problem in the bais din system a crisis?

A: It’s worse than a crisis. They tell me that there is a prominent talmid chacham in Flatbush who tells his baalei battim to go to a secular court because they stand a better chance of yoshor [justice] in a goyishe [non-Jewish] court than in a din Torah. If you ask him, he’ll deny it, but that’s what he tells people. Unfortunately, I think that the comment about yoshor is true.

Q: Is the problem because of the toanim?

A: They drei a kup and obstruct the proceedings. They keep repeating the same things over and over. Rabbi Belsky says that they get paid by the hour, so….I asked Rabbi Belsky, “How do you allow toanim in your bais din?” He said that if he didn’t allow toanim, no one will go to him. They will go to a weaker batei din than his. Here in our yeshiva, when a baal habos wants to have a din Torah, we never allow toanim. One time a person did want to have a toain. We told him, “Stay in the other room. We’ll know what the din is; just tell us what the facts are.”

Q: But isn’t that a problem? Once there is a toain system, people feel that they have a better chance with a toain, so, like Rabbi Belsky said, if you have a bais din without toanim, everyone will go to other batei din?

A: Yes. It’s terrible.

Q: How old is this toain system?

A: Very recent. In the Shulchan Aruch it says that you’re not allowed to have a toain.

Q: But if the litigant doesn’t know how to express himself, can’t the toain present his claims for him?

A: If he can’t express it for himself, thereis a rule of psach picha l’ilaim [“speakingfor the mute”]. But what can’t he express? Tell us what the facts of the case are. Often there is no argument about what the facts are.

Q: When do you believe this system started?

A: I think it started in America. I wasn’t there in Europe, but I don’t think they had it years ago.

Q: If you would make a takana, you would say to abolish the entire toain system?

A: Absolutely. You don’t need a toain. If you have a katan (minor) or someone who doesn’t know the facts, you have to have psach picha l’ilaim; you have to help him out a little. But the bais din, who is learned, can do that. Tayninan l’yisomim;tayninan l’likuchos. Whenever the baal din doesn’t know the facts, we have to helpthem.

Q: When many people come to bais din, they are not coming because they are having a shaila l’halacha; they are coming to win. So they want a toain for that, don’t they?

A: It’s terrible. Bais din should tell them that every penny that they have shelo k’din [wrongly] is gezel [theft].Regarding the case I told you about the toain screaming out, “Don’t answer them,” I recently asked someone whether anything changed in the situation. They told me that no, nothing changed, but that the great-nephew who got the money had to spend it all on a relative who was very sick. That’s always the case.

Q: There is a recent case involving two kehillos that have been fighting for five years in bais din and have no psak. The proceedings are going on and on. Is this the norm today?

A: Rabbi Belsky told me that, in the case you are referring to, they’ve had over two hundred sessions. He told me, in this language, that why does someone have to go to graduate school and become an engineer? Just become a toain and you can make a fortune of money. Have unlimited sessions, and get paid by the hour. A shanda and a cherpa. [It’s a shame and repulsive matter.]

Q: How do we bring public awareness to these problems?

A: Rabbonim should speak about it. Why is there so much cheating in business? Rabbonim should get up once a year in shuls and speak about Lo sigzol, that you’re not allowed to cheat in business, and that you’re not allowed to cheat on your income tax. If you talk about it long enough it will have an effect on some of the baal habattim. Rabbonim have certain topics that they talk about in hashkafa. Let them give chizuk about gezel.

Q: Do you have a problem with the borerim system [in which two of the dayanim are chosen by the litigants and the two dayanim choose a third]?

A: The borerim system is also a shanda. A lot of the borerim act like toanim. I was involved in a din Torah. The borer took shochad (bribes). I had to resign from the case. He felt insulted. It was before Rosh Hashanah, and he told me that he was not going to be mochel [forgive] me. I told him, “I don’t need mechila. You took shochad. You’re pasul to be a dayan.”It says in Shulchan Aruch that you can’t have one litigant pay his dayan and the other pay his dayan, unless, which Reb Moshe writes in a teshuva, it is clear that both are being paid the same amount, in which case each one can pay his dayan and they both pay the third. But that isn’t what happens. They don’t pay the same amount. The payment depends on how long each one bothers the dayan. So they don’t pay the same amount and it is true shochad.

Q: You mean that they are not allowed to charge for the private sessions, as well?

A: Of course not. That’s shochad! They pay more money for the private sessions, and then the dayan, instead of talking like a dayan, talks like a toain. I was once involved in a din Torah. One of the dayanim was making up his mind: “This side is wealthier than the other, so let him pay.” What way to talk is that? A din Torah of a penny has to be treated like a din Torah of a million dollars.

Q: Are you saying there is a problem with the dayanim?

A: Of course. Do you think that all of the dayanim are honest? Many are acting like toanim; many of the toanim are acting like criminals. They make up their minds in advance that their side has to win. I don’t walk into a din Torah with the attitude that my side always has to win. If I think my side is wrong, I’ll pasken against them. The Rosh in the beginning of Perek Zeh Borer says that people think that their dayan always has to side with them. He has to explore their position; that’s true. But not to invent reasoning out of nowhere. Once we had a din Torah here. It was over real estate in California where they had invested a couple of million dollars. We asked them, “Do you want a din Torah, or would you rather have a peshara [compromise]?”We told them that a peshara is not a fifty-fifty split. It is whatever yoshor dictates. They agreed. The din of peshara in this case turned out to be one hundred percent in favor of one person. That was the peshara. They thanked us. They shook hands with us, shook hands with each other. That’s the way it should be. Regrettably, dayanim today don’t judge with yoshor.

Q: An individual person is affected by this greatly. The big groups can go to a court, because they aren’t worried about any social repercussions. If a regular person did that, he would not be able to get a shidduch for his children, because he would be called a rasha.

A: It’s terrible. The dayanim themselves are misusing the system. Someone told me that he was divorcing his wife. He gave the get (divorce) first; he didn’t want to hold it up. So now every time there is a question about custody, his wife goes to court with impunity. Each time he goes to court for anything, the bais din sends him a seruv [summons]. They misuse the seruv. They vilify him, and if there would be a seruv against him, he would lose his job. He is a rabbi.

Q: Could there be a watchdog group, with rabbanim getting together to examine how the batei din are behaving?

A: It’s a safek sakana [possible danger] for the watchdog group; they’re going to be killed.

Q: Meaning physically?

A: Yes. These people are chashud [suspected] on shifichas damim [murder].Many years ago, Rav Dovid Cohen from Gvul Yaavetz visited me in the summertime. He said that he wanted to set up a dayanim system from all the yeshivos. Whenever someone would want to have a din Torah, they would have to pick three dayanim from the group. They wouldn’t be able to pick a professional who would act like a toain. They would get paid from an outside source, not by the baalei dinim at all. He asked me if I would join, and I said,” Fine.” He said that he would be working on it. It never got off the ground. I don’t know what happened. That we can’t have a bais din system that works is an embarrassment, a shanda and a cherpa.

Q: What should a person who has a claim do, other than go to secular court?

A: People who have a dispute should find an honest rav to make a din Torah between them. I remember that the Mirrer Yeshiva in Yerushalayim had an arrangement with a headhunter in New York. They ended up having a din Torah between them. The headhunter was Modern Orthodox. Mir wanted a veryyeshivish bais din; he wanted a Modern Orthodox bais din. Somehow they both agreed on me. So they came and presented both sides, and I paskened that the yeshiva owed him the money. But then I took out my checkbook and wrote the yeshiva a check. Everybody knows that the Mirrer Yeshiva needs money. So the baal habayis also realized that he should give the yeshiva money. I think that he gave up all his claims.

Q: Are you saying it is preferable to go to one upstanding rav?

A: If you can find one trustworthy person, that would be the best. The zabla system [of choosing dayanim by each party choosing one judge] is no good. The borer will sometimes say things that are not true. The party tells him something in the private session, where he is being paid by the hour, and he repeats what he has been told, and then in the next session we find out that it’s not true. Better to just have one person that both trust. Q: Is it common to choose one dayan to hear a case?

A: I remember one time there was a chassidishe rebbe who died and was buried in Eretz Yisrael. There was a plot next to him and the question became who would get it. His oldest son was in business, though he had semicha. The second had taken over the title of rebbe, so he felt that he should get it, but the oldest said that he should get it because he was the bechor [firstborn]. They both came to Rav Soloveitchik. He told them that kol hakodem zacha; whoever would die first would get it. Eventually the oldest son died first, but he had realized that his brother was right and before he died he asked to be buried in another cemetery.

Q: Do you want to share another personal anecdote?

A: I remember that I was in a din Torah, and the toain was acting so nastily that I said, “Reb So-and-so, you’re a genius!” He didn’t realize that I meant a chacham l’ra [an evil genius] and he went around saying that Rabbi Schachter had said that he was a genius.

Q: But doesn’t a toain assist a litigant in the halachic research related to his case?

A: The toanim will quote a line from Shulchan Aruch or a line from a teshuva sefer out of context. They quote it out of context because they know that it will be beneficial for their case.

Q: Any solution?

A: The rabbanim should give drashos and tell people that if they take money shelo k’din, Hakadosh Baruch Hu will see to it that they lose that money

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