Q: The common practice in batei din is that prior to a din Torah, the litigating parties sign a shtar beirurin and perform a kinyan in which both parties obligate themselves to accept the ruling of the beis din or the Dayan. Are these prerequisites truly necessary? Doesn’t the very fact that the two parties have appeared in beis din already obligate them to accept the ruling even without a kinyan and shtar beirurin?
A: There are several reasons why a shtar beirurin is necessary.
1) Without a shtar beirurin, one of the parties could decide, in the middle of the case, that he wants to bring the case before a different beis din. The kinyan on the shtar beirurin requires the parties to keep the case in this beis din (Rashi, Bava Metzia 20a, s.v. “Zeh”; Shulchan Aruch, C.M. 13:2).
2) The shtar also serves as proof that the parties agreed to have these Dayanim adjudicate their case (Ohr Zarua, B.B. 232). If the defendant refuses to accept the ruling of beis din, the plaintiff can use this document in court to enforce beis din’s ruling, because civil law recognizes batei din as arbitrators if the parties accepted their authority by signing an arbitration agreement.
The Poskim add that if one of the parties refuses to sign the shtar (or an arbitration agreement, in jurisdictions that require one to be drawn up), which refusal will make it impossible to enforce the psak, he is consider a sarvan (one who refuses to appear in beis din), because his refusal to sign the document indicates that he will not accept beis din’s ruling. He is then subject to the penalties of a lo tzayis dina, one who refuses to follow the ruling of beis din (Kesef Hakodashim 75:1; Shu”t Ha’elef Lecha Shlomo, C.M. 1, Divrei Geonim 52:8).
Even if there is no foreseeable reason to have to enforce the ruling in court — e.g., it is a small claim — a kinyan, at minimum, may still be necessary, because without it one of the parties might be able to retract his agreement to follow beis din’s ruling.
If it was a beis din of three Dayanim, neither side can retract. Even if there were only two Dayanim, appearing before them is still considered an agreement to accept their ruling, and the parties are required to follow that ruling (C.M. 3:2, Shach 10).
If the two sides agreed to have a single Dayan decide their case, there are several factors that must be considered. If the Dayan is a mumcheh (expert; see Sma 3:5, Shevet HaLevi v. 8, 300:4 for the delineation of a mumcheh), his ruling is binding (Shulchan Aruch 3:2; Shach 7).
If he is not a mumcheh, even if he is a talmid chacham and posek, there is a dispute among the Poskim whether his ruling is binding. The Sma (22:6) holds that a mutual agreement to follow a non-mumcheh’s ruling is binding. The Shach (22:2) argues that this is considered a case of tarti l’rei’usa, two deficiencies in the Dayan’s ability to rule (one Dayan acting as two is one deficiency, and acting as three is a second deficiency), and without a kinyan his ruling is not binding.
While the Acharonim rule according the Sma, in some cases it could be problematic even according to the Sma.
It is quite common, for instance, for litigants to want their case heard at night, when we are not supposed to judge monetary matters (Shulchan Aruch 5:2). Some Poskim say that this halachah is so stringent that a judgment rendered at night is not binding (Shach, ibid. 5, ruling against the Rema, ibid. 2). If the parties agreed to have their case heard by a proper beis din at night, that agreement is binding (Sma ibid. 7). But if that judgment is rendered at night by one Dayan who is not a mumcheh, those are certainly two deficiencies and the ruling would not be considered binding — unless a kinyan was made at the outset (see Nesivos 5:1).
In addition, if the Dayanim rule that the two sides should compromise (pesharah), even if they initially agreed to accept the pesharah, they could retract that agreement — unless they made a kinyan requiring them to keep the pesharah (Shulchan Aruch 12:7).
To avoid these numerous pitfalls — and more — many batei din and Dayanim will not adjudicate a monetary dispute without a shtar beirurin and/or a kinyan.