Part II
Last week’s discussion focused on the halachic justification for allowing ligitants to appear at a hearing remotely. If the litigants appear via video conference, is there still a need for the dayanim to sit together in person?
The Gemara (Brachos 6a) indicates that the Shechinah rests upon three dayanim who convene in person for a commercial din Torah. However, it is not clear from this Gemara that the resting of the Shechinah upon dayanim is a necessary prerequisite for a din Torah to take place. In fact, R. Moshe Feinstein (Igros Moshe Yoreh Deah 3:142:2) suggests that the Shechinah rests upon dayanim not because they are engaged in a din Torah per se, but because in doing so they are involved in Torah study. Rav Moshe argues that it is possible that even if a single dayan adjudicates a case—either because he is an expert who is authorized to do so or the parties agreed to accept him as a dayan—the Shechinah may rest upon him because of the Torah study that is involved in a din Torah. If this is the case, perhaps the Shechinah may even rest upon three dayanim who are connected via videoconference, as they are no worse than a single individual engaged in Torah study. (Whenever there is a need for a formal act of a beis din to confer halachic status, as opposed to adjudicate competing claims in a dispute, the dayanim must be physically proximate to each other [see, for example, Rema Even Haezer 141:60]).
However, Rav Moshe acknowledges that the resting of the Shechinah upon dayanim may derive not only from their engagement in Torah study, but also from their engagement in mishpat, pursuing justice. He suggests that the question of whether the Shechinah rests upon a single dayan adjudicating a case may depend on a dispute as to how to understand the exhortation of the Mishnah in Avos (4:8) not to serve as a single dayan. Tosafos (Sanhedrin 5a s.v. k’gon) assume that this is simply good advice, so as not to open oneself up to the possibility of making a mistake in a ruling, but fundamentally there is nothing wrong with serving as a single dayan. However, Rambam (Sanhedrin 2:11 and Peirush HaMishnayos Avos) understands that one objectively should not judge alone, and doing so demonstrates a lack of k’vod shamayim. According to Rambam, it is unlikely that the Shechinah would rest upon a single dayan who is demonstrating a lack of k’vod shamayim. According to this analysis of the Rambam it is possible that if three dayanim convene via Zoom the Shechinah may still reside over them, as the mode of their gathering does not necessarily bespeak a lack of k’vod shamayim.
Rav Moshe suggests that irrespective of the Shechinah’s presence, a beis din should convene in person in order to better facilitate proper dialogue and deliberation among the dayanim. However, this does not necessarily preclude the dayanim from engaging in such a dialogue via videoconference. At the very least, it would seem that just as the consent of the parties to waive their right to appear in person at a din Torah is effective, so too should their consent allow the dayanim to appear remotely through videoconference. If, however, one of the parties insists on the dayanim sitting together in person, it would be difficult to dismiss their right to such a demand.
If we assume that the parties must provide their consent before initiating a Zoom din Torah, what form must that consent take? Regarding the consent necessary to convene a hearing at night (required per Shulchan Aruch Choshen Mishpat 5:3, but see Sema 5:7), Bach (Choshen Mishpat 5:6) writes that formal verbal or written consent or a kabbalas kinyan (a symbolic action indicating consent, such as having the parties lift up an object like a pen or handkerchief belonging to the beis din) is unnecessary; the very appearance of the litigants at a hearing convened at night constitutes a de facto acceptance. Bach assumes that the same is true for the acceptance of any otherwise inadmissible procedural matter.
Even if the appearance of litigants in front of a beis din constitutes de facto acceptance of its authority, there may still be a need for a formal kabbalas kinyan in order to prevent the possibility of retracting that authorization (based on Rema Choshen Mishpat 22:1). For this reason it would be advisable to have the parties effect a kabbalas kinyan in advance of a din torah conducted via videoconference. However, we generally assume that the execution of a binding arbitration agreement serves as the halachic equivalent of a kabbalas kinyan. For example, whereas Shulchan Aruch rules (Choshen Mishpat 12:7) that the agreement of the parties to be governed by peshara (equity) requires a kinyan, Rema adds that the signing of an agreement to that effect suffices in place of a kinyan. Maharsham (5:45) writes that even if the signing of a binding arbitration agreement would not constitute a kabbalas kinyan per se (see Sema 12:18), it would still be effective as a situmta, a form of acquisition based on common practice, in jurisdictions where it is legally binding. As such, if the parties sign an arbitration agreement that allows for a hearing to take place via video conference (such as the arbitration agreement currently utilized at the Beth Din of America), they would not be able to rescind that authorization.
Rabbi Michoel Zylberman is the sgan menahel (associate director) of the Beth Din of America. In addition to his work at the Beth Din of America as an administrator, mesader gittin, and dayan, Rabbi Zylberman serves on the Rabbi Isaac Elchanan Theological Seminary faculty as a rosh chabura and functions as the director of geirut for the Rabbinical Council of America. An expanded version of this article is scheduled to appear in the forthcoming volume of the RJJ Journal of Halacha and Contemporary Society.
The Beth Din of America administers gittin (Jewish divorces), mediates and arbitrates family and business disputes, and resolves halachic personal status issues. The av beth din of the Beth Din of America is Rabbi Mordechai Willig, and Rabbi Yona Reiss serves as its sgan av beth din.
