This week we will continue our discussion of Beit Din issues. We will now focus on the issue of Hazmana, summons to Beit Din. We will begin by discussing the rules of Hazmana and then discuss how one should respond to a Hazmana.
Source of the Rule
The Gemara tells us (Moed Katan 16a) the source of Beit Din summoning a defendant (1;"3) to a Din Torah:
From whence do we derive that an agent of Beit Din is sent to summon a defendant to a Din Torah? As it is written (Bamidbar 16:2) "Moshe sent forth to summon Datan and Aviram the sons of Eliav..." From whence do we derive that we inform the defendant that they will be judged in the presence of a great man? As it is written (Bamidbar 16:16) "Moshe said to Korach you and your entire assembly, appear before Hashem..." From whence do we know that we maintain the plaintiff? As it is written (ibid) "you, they, and Aharon." From whence do we derive that a set date is mentioned in the Hazmana? As it is written (ibid) "tomorrow." From whence do we derive that a second Hazmana is sent? As it is written (Yirmiyahu 46:17, as explained by Rashi) "place Paroh king of Egypt in excommunication for having ignored his appointed time more than once." (see Ritva for an alternate explanation) From where do we learn that the agent of the court [who delivers the summons] is permitted to report to the Beit Din [about the actions of a recalcitrant defendant] without concern for violating Lashon Hara prohibitions? As it is written (Bamidbar 16:14) "even if you would gouge out the eyes of those men, we shall not go up." (Rashi comments that had the court agent not told Moshe of their remarks, how else would Moshe have known about the remarks.) From where do we derive that we excommunicate (1*$&*) one who refuses to appear in Beit Din? As it is written (Shoftim 5:23) "curse Meroz [for their refusal to join the battle against Sisra, king of Chatzor]."
Delivery of the Hazmana
The Shulchan Aruch (Choshen Mishpat 11:1) describes the Hazmana serving process as follows: "Beit Din sends their agent (Shliach Beit Din) to summon the defendant to appear before Beit Din." In other words, the Hazmana is served the same way Moshe summoned Datan and Aviram; a messenger appeared personally to the defendant and issued a verbal summons. Of course, this is hardly feasible in today's context. Thus we find that the Israeli Rabbinic Courts permit a written Hazmana to be delivered by mail (see Takanot Hadiyun Bebatei Hadin Harabbaniyim Beyisrael 5753, p.17). This is also the practice of Rabbinic Courts in this country.
Professor Eliav Schochetman (Seder Hadin p.148) puts this issue into perspective. (he is writing about State of Israel Rabbinic Courts):
The reason [why contemporary authorities permit Hazmana to be delivered by mail] appears to be due to the great number of cases litigated in Beit Din - tens of thousands per year. Each case has at least two litigants to be summoned, and if we consider that court dates are postponed and that Hazmanot need to be sent a second time for various reasons, we realize that perhaps more than one hundred thousand Hazmanot are sent per year. This is certainly a situation in which it is virtually impossible for a Shliach to personally deliver the Hazmana each time.
It should be noted that this author finds that a personally delivered Hazmana can often be effective in influencing a recalcitrant party to appear in Beit Din. A personal visit often affords the opportunity for the skilled Shliach Beit Din to develop a rapport with the disputant which may lead to conflict resolution.
Sometimes, though, it is difficult to serve a Hazmana. Unfortunately, some unscrupulous individuals try to evade receipt of the summons. Thus, we find the State of Israel Rabbinic Court providing alternate means for delivery of Hazmanot, such as printing a notice in a newspaper and leaving the Hazmana with a neighbor or co-workers (Takanot Hadiyun p.18).
Content of the Hazmana
Achronim debate whether the Hazmana must include the matter to be adjudicated in Beit Din (the reader will recall that the Gemara does not mention such a requirement). The Aruch Hashulchan (Choshen Mishpat 11:2) rules in accordance with the Shach (C.M. 11:1) that the 1;"3 has the right to be informed what the cause of action is. The 1;"3 can claim that he wants to be given the option of settling the matter out of Beit Din.
Interestingly, Rav Moshe Feinstein (Igrot Moshe C.M. 2:6) rules that although Halacha follows the Shach on this matter, this rule does not apply when the Hazmana is sent by a recognized Beit Din. He reasons that in such a case the 1;"3 should realize that if this was a small matter that could be settled out of Beit Din, the Hazmana would not have been sent.
Rav Gedalia Schwartz (Av Beit Din of the Beit Din of America) told this author that experience indicates that the prudent course of action is to inform the 1;"3 what the Din Torah will be about. Experience shows that when this is done, that chances are greater that the parties will resolve the matter without the need of recourse to Beit Din. Indeed, the practice of State of Israel Rabbinic Courts is to mention the cause of action in the Hazmana (Takanot Hadiyun p. 17).
How Many Hazmanot are Sent?
The Shulchan Aruch (C.M. 11:1) speaks of three Hazmanot presented to a rural resident who occasionally visits the city and one Hazmana to a city dweller. Achronim (Tumim, Netivot, Piskei Teshuva, Aruch Hashulhan C.M. 11:1) point out that the practice has become to send three Hazmanot even to a city dweller, because our lives have become more hectic and thus we need reminding.
The practice of sending three Hazmanot remains the rule in this country. A difference is, though, that in the time of the Shulchan Aruch the respondent was given one day (!) to appear in Beit Din. Today, Batei Din allow more time for the parties to respond to Hazmanot. The amount of time allowed depends on the determination of the particular Beit Din.
In Israel, the practice has developed to send only one Hazmana. This is the practice of both Chareidi Batei Din (Badatz) and State of Israeli Rabbinic Courts (see Teshuvot Minchat Yitzchak 9:165 and Takanot Hadiyun p. 17).
The practice of Batei Din in Yemen is particularly instructive. If a party responded only to a second or third notice, the Dayanim did not question him before the conclusion of the proceedings, so that they should not be biased against him. They assumed that there was a legitimate reason for the delay. However, after the final decision was issued (#/9 $*0) they inquired as to the reason for the delay. If there was not a legitimate excuse for the tardy response, the Dayanim would reprimand him (Rav Yosef Kapach, Halichot Teiman p. 71).
Next week, we will, "3'9; %', discuss what is the appropriate response to a Hazmana to appear in Beit Din.