Rabbi Meir Orlian
Mr. Weiss lent his downstairs neighbor Mr. Feder $25,000 for six months. During the loan period, a dispute arose over substantial water damage that Mr. Feder had suffered. Mr. Feder was emphatic that Mr. Weiss was liable for the damage, while Mr. Weiss denied responsibility.
When the six months were over, Mr. Weiss asked for repayment of the $25,000.
“I don’t have to repay you,” Mr. Feder said. “You owe me at least that much for damage that you caused!”
Mr. Weiss filed a suit for $25,000 in Rabbi Dayan’s beis din, which sent Mr. Feder a summons to a din Torah. “I don’t owe Mr. Weiss anything; he caused me corresponding damage,” Mr. Feder replied. “I refuse to come.”
Mr. Weiss, in consultation with the beis din, had a lawyer send a letter threatening legal action if Mr. Feder would not come before the beis din.
“I do not owe anything,” Mr. Feder replied. “However, if I must come, I will.”
The secretary of the beis din confirmed a date with both parties. Mr. Feder did not show up for the session, and did not provide notice beforehand.
The secretary contacted Mr. Feder. “Why did you not come?” he asked.
“It wasn’t convenient for me that day,” said Mr. Feder.
“We view this with great severity,” the secretary replied. “We will reschedule, but expect you to appear.”
Mr. Feder appeared at the following session. Meanwhile, Mr. Weiss had enlisted the services of an attorney to help him with the case.
Mr. Feder was not able to substantiate his claim that Mr. Weiss was responsible for the water damage. The beis din ruled in favor of Mr. Weiss and obligated Mr. Feder to repay the $25,000.
“What about expenses?” asked Mr. Weiss. “I missed two days of work for the two sessions, paid the lawyer to draft the letter, and employed the services of an attorney. Am I not entitled to reimbursement of my expenses?”
“Civil law often imposes expenses on the guilty party, but Halachah does not, in routine situations,” answered Rabbi Dayan. “Even if the litigants had to travel to a distant city to adjudicate, the winning party cannot demand reimbursement of expenses” (C.M. 14:5).
“What is the logic?” asked Mr. Weiss. “He caused me unnecessary expense!”
“The desire to adjudicate a monetary disagreement before beis din is viewed as a legitimate right,” explained Rabbi Dayan. “Even if the person loses the case, the expenses of the other party are not viewed as unnecessary damage. Furthermore, these expenses would be considered, at most, grama — indirect damage, for which there is no enforceable obligation.”
“Does beis din ever impose reimbursement of legal expenses?” asked Mr. Weiss.
“The Shulchan Aruch writes that if the defendant refused to come to the beis din and the plaintiff suffered expenses to make him come, he is required to reimburse those expenses,” responded Rabbi Dayan. “Similarly, if one party doesn’t appear for the session as agreed, he is liable for expenses, e.g., travel, that he caused the other party.”
“Why is that?” asked Mr. Feder.
“The defendant had no right to refuse the summons, so that expenses to make him come are damage that he did,” answered Rabbi Dayan. “According to many authorities, this applies even if the defendant was acquitted (unless the claim was frivolous). Expenses generated by refusal to come are considered garmi, a more direct causation of damage. Therefore, if he was unable to come because he was sick, etc., he would not be liable. Similarly, not appearing for a session is a breach of the mutual commitment they made” (see Sma 14:27; Pischei Teshuvah 14:12; Aruch Hashulchan 14:10; V’shav Hakohen #99).
“Are there other cases in which beis din imposes legal expenses?” asked Mr. Weiss.
“Some say that if the claim was frivolous and had no basis whatsoever,” replied Rabbi Dayan, “that party has to pay for the other’s expenses, since there was no legitimate right to adjudicate” (Yeshuas Yisrael 14:5).
“Thus,” concluded Rabbi Dayan, “Mr. Feder has to pay Mr. Weiss for the expenses of the first session that he missed and the lawyer’s fee for the letter to make him come to beis din.”