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Beit Midrash Series P'ninat Mishpat

Chapter 319

Taking Guarantees from Parties to Assure Mutual Participation

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(based on Chelkat Yaakov, Choshen Mishpat 3)
P'ninat Mishpat (576)
Various Rabbis
318 - Disqualifying a Dayan for Having His Lost Item Returned
319 - Taking Guarantees from Parties to Assure Mutual Participation
320 - Money Lost in Transit
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Case: Reuven from Belgium, who is visiting Zurich, is suing Shimon in beit din in Zurich. Shimon agrees to participate only if Reuven is willing to put in escrow the money for which he wants to sue Reuven in another case. Shimon explains that he is afraid that Reuven will leave and never agree to adjudicate on his claims. Does Shimon have the right to link these two cases?

Ruling: The Rama (Choshen Mishpat 14:1) says that even though the plaintiff generally has to go to the defendant’s place to adjudicate, one can sue a visitor in the town he is visiting. This halacha, which comes from the Maharik (14) is based on the same reasoning that Shimon is using.
The Rama also says that when one has the authority to have the courts seize funds to secure possible future payment, this requires the defendant to come to the plaintiff’s place to adjudicate. The Rama (CM 73:10) says that in our days, we are relatively willing to seize funds in that way without proof of great need, and the Shach (ad loc.) says that it is quite common to even let the non-Jewish courts carry out this process. In our case, we are not even talking about unilaterally seizing new funds from Reuven, but just having Shimon refuse to adjudicate in Reuven’s suit against him until such guarantees are made.
Although there is a concept that we "first address the needs of the plaintiff" – i.e., we do not wait until the defendant presents material for a counter claim (Shulchan Mishpat, CM 24) – we do not do so when this will cause a loss to the financial standing of the defendant. In any case, there it is talking about a case where the plaintiff is in possession of an ostensibly valid document. The concept also does not apply if that which the defendant is claiming can be used as payment for the plaintiff’s claim, as it is then considered as if the defendant is claiming that he already paid (see Netivot Hamishpat, ad loc.). In this regard, it is important to compare, at first glance, the apparent strength of the mutual claims. In our case, neither side starts off with an obviously strong claim.
It is true that the Maharsham (II:165) says that we pasken like the Shach that beit din does not generally force a defendant to put money in escrow, due to a concern that the money may get lost. However, when it is possible to make a guarantee for the defendant, it is permitted to demand escrow. In this case, Shimon is deserving of financial guarantees that Reuven will agree to go to a din Torah on his claims in return.
On such matters, we say that the level of guarantees and other necessary steps are up to beit din’s discretion (see Shach, CM 75:34). Therefore, beit din should try to determine to what extent Shimon’s claim that Reuven should not be trusted is convincing. In order to even things out, it is also suggested that beit din similarly take financial guarantees from Shimon, who also could be guilty of evasive behavior, despite his ostensibly well-founded claims.
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