Selecting a Beis Din – The party responsible for selection [Nitva versus Toveia] and the necessity of litigating in the local court:[1]
The process of selecting a Beis Din (rabbinical court) is a critical step in resolving disputes within the framework of Jewish law. Central to this process is determining which party holds the right to choose the Beis Din of their liking— the Nitva or Toveia, meaning the defendant or the claimant? This issue is not merely procedural; it reflects deeper principles of fairness, jurisdiction, and halachic authority. Furthermore, the necessity of litigation in the local Beis Din adds another layer of complexity. This article will explore: The halachic principles governing who selects the Beis Din. The roles and rights of the Nitva (defendant) and Toveia (claimant) in initiating proceedings. The circumstances under which litigation in a local court become necessary.
- Debunking the claim that we always follow the Nitva:
The general rule quoted by people regarding this Halacha is that the Nitva (defendant) holds the right to select the Beis Din for litigation. This acclaimed principle establishes that the defendant typically determines which rabbinical court will adjudicate the case. The reasoning behind this is rooted in fairness; since the claimant (Toveia) is initiating the legal action, the defendant is granted the procedural advantage of choosing the forum for the dispute. However, in truth, this rule is not absolute at all. Initially, the original Talmudic ruling actually supports the Toveia, granting him, under certain circumstances, the right to select the Beis Din and require adjudication even in a foreign city. Furthermore, even according to the prevailing custom of conducting judgment in the local city or the Nitva’s city, there are several instances in which the Toveia may challenge the Beis Din chosen by the Nitva and request an alternative tribunal. Therefore, the commonly cited doctrine that proceedings always follow the Nitva does not represent an absolute principle; rather, it applies only in specific cases, as will be clarified below. Generally, a distinction is made between cases where both parties reside in the same city—where preference is typically given to the local Beis Din—and cases where the parties are in different cities, in which precedence is accorded to the Nitva. This practice of granting priority to the Nitva when residing in a different city than the Toveia has led to the misconception that the Nitva always determines the venue for court proceedings. However, this is not entirely accurate, as will be clarified further.
- Local Beis Din – Both parties live in same city:[2]
In the event that both parties reside in the same city and that city contains a local Beis Din, then although from the letter of the law there exists a number of scenarios in which we allow the Toveia to demand for the judgment take place in another city’s Beis Din[3], nonetheless, practically the custom today is for the case to always be adjudicated in that local city’s Beis Din, and neither the Toveia or Nitva have the right to take the case to a Beis Din outside of the city.[4] [This applies even for Sephardim[5].] This applies even if the other city has a greater Beis Din and it is the Malveh who is demanding to take the case outside of the city, or the claim involves a large sum of money, or the claim involves a Toveia who has a definite claim against the defendant.[6] However, if a borrower is the one who is demanding to take the case to a Beis Din which is outside of the city, or there is no definite claim on the side of the Toveia or both sides are making claims against the other, and the claim does not involve a large sum of money, then from the letter of the law, and not just due to custom, the case is to adjudicated in the local Beis Din and no side has the right to demand its adjudication in the Beis Din of another city, even if greater.[7] [Likewise, in the event that the Beis Din of another city is not greater then the local Beis Din, then no side has the right to demand for its adjudication in the Beis Din of this other city, even if it involves a Malveh and Loveh, or a definite Toveai, or large sum.[8]]
In Cases of Potential Bias:[9] If one of the sides possesses significant wealth or influence [i.e. Alam], raising concerns that the other side may not receive an impartial judgment from the Beis Din of their city, it is required that the case be adjudicated in the Beis Din of another city. This protocol applies even in instances where the local Beis Din is considered more prominent or authoritative. [In such a case, however, the Toveia must cover the travel expenses of the Nitva.]
- Local Beis Din – Parties live in different cities:[10]
In the event that the two parties reside in different cities, then the general rule is that the Nitva has the right to demand for the case to be adjudicated in his local Beis Din, even if there is a greater Beis Din elsewhere [i.e. even if it is a Beis Din Hagadol] where the Toveia would like to see the case adjudicated. [Likewise, he may choose for the case to be adjudicated in the local Beis Din of the city of residence of the Toveia, even if he has a local Beis Din in his city.[11]] This however comes with the following exceptions in which case we follow the Beis Din of the Toveia:
- The money is being held in the city of Toveia:[12] If the disputed funds are located within the city of Toviea (the claimant’s jurisdiction), and the claimant possesses the authority to place a lien [i.e. Ikkul] on these assets, the claimant may petition for the matter to be adjudicated by the local Beis Din.
- The Nitva is currently found in a city with a Beis Din:[13] In all cases that the Nitva is currently located in a city with a local Beis Din, then the Toveia has the right to demand for the case to be adjudicated there even though it is not the city of residence of the Nitva and he just happens to be there during travel. Thus, in the event that the Nitva had to make a trip to the city of the Toveia, then the Toveia can take advantage of the situation and force the Nitva to a court case in the Beis Din of his city.
- Father taking son to court:[14] When a father and son are involved in a dispute that needs to be settled in court, and the father is the plaintiff [i.e. Toveia] who is making a claim against the son [i.e. the Nitva], [then although in general the rule is that the Nitva gets to choose the jurisdiction of the court proceedings, nonetheless by a father-son relationship] the son must go to the jurisdiction chosen by the father for the court proceedings to take place. This applies even if the son lives in another city and will need to travel to the jurisdiction chosen by his father, as all this is included in respecting one’s father. Despite the above, the father is obligated to reimburse his son for all of his expenses involved in the travels to the father’s jurisdiction that he chose to have the court proceedings in, as one is not obligated to honor his father with his own money.[15]
- In Cases of Potential Bias Regarding the Nitva (Defendant):[16] If the Nitva (defendant) possesses significant wealth or influence [i.e. Alam], raising concerns that the Toveia may not receive an impartial judgment from the Beis Din of the defendant’s city, it is required that the case be adjudicated in the Beis Din of another city. This protocol applies even in instances where the local Beis Din is considered more prominent or authoritative. [In such a case, however, the Toveia must cover the travel expenses of the Nitva.]
- The Nitva moved from city:[17] If the Nitva (defendant) has relocated from the city in which the original claim occurred with the Toveia, then it is disputed whether or not we follow the current city of the Nitva.
- The Nitva does not want to be judged in his local Beis Din:[18] The Nitva’s right to select the Beis Din is applicable only when he wishes for his case to be heard by the local Beis Din in his city of residence, or by the local Beis Din in the Toveias city of residence. However, he does not possess the right to request adjudication in a Beis Din located in another city where neither the Toveia or Nitva live, if an appropriate local Beis Din is available within one of their cities.
- Multiple Local Beis Dins:[19]
If multiple local Batei Dinim exist within the city where both the claimant (Toveia) and respondent (Nitva) reside, both the Nitva and Tiveia are entitled to request that adjudication occur either before a court of their choosing or before a Zabla[20], provided there is no singular, primary Beis Din established in the city. However, when a Beis Din in the city is recognized as the principal Beis Din Hagadol, either party has the right to require that all proceedings be held in that Beis Din, rather than before a Zabla.[21] [This rule applies even when the Toveia and Nitva live in different cities and court case will take place in the city of the Nitva, nonetheless, if there exists multiple Batei Dinim in that city the Nitva does not have the right to decide the Beis Din in which the case will be adjudicated in, and if they can not come to a consensus then the case is adjudicated by a Zabla.[22]]
- No Local Beis Din:[23]
If there is no local Beis Din in the city of either the Toveia or the Nitva, then the Toveia can force the Nitva, and vice versa, to go to a Beis Din of a different city [which is closest to the Nitva[24]]. [Seemingly, if there exist several Batei Dinim near the city of the Nitva and the parties are unable to agree on a Beis Din that is outside of their city, then it should follow the same procedure as a city with multiple local Batei Din, in which case the matter should be adjudicated before a Zabla.]
- When both sides agree on a specific Beis Din:[25]
In the event that both sides agreed to go to a specific Beis Din, then we do not force them to go to a local Beis Din, even if it is greater.
Summary:
The process of selecting a Beis Din (rabbinical court) for adjudicating disputes in Jewish law is nuanced and considers factors such as the parties’ places of residence, potential bias, the existence of multiple courts in a city, and mutual agreements. Generally, when both parties live in the same city, the case is handled by the local Beis Din. If they reside in different cities, the Nitva’s local Beis Din is usually chosen, but there are notable exceptions.
- General Rule: The Nitva (defendant) is often given priority in selecting the Beis Din, but this is not always the case.
- Same City Residency: If both parties live in the same city, the local Beis Din is usually chosen for adjudication.
- Different Cities: When parties reside in different cities, the Nitva may select his local Beis Din, with exceptions such as asset location or temporary presence in the claimant’s city.
- Exceptions: The Toveia (claimant) may choose the Beis Din in cases of potential bias, when disputed funds are in his city, or in specific relationships like father-son disputes.
- Multiple Batei Dinim: If a city has more than one Beis Din, either party may request adjudication before a court of their choice or a Zabla, unless there is a recognized main Beis Din.
- No Local Beis Din: If neither party’s city has a Beis Din, they may be required to go to a court in another city, typically the one closest to the Nitva.
- Mutual Agreement: If both sides agree on a particular Beis Din, their agreement overrides the usual rules regarding local jurisdiction.
| Scenario | Nitva (Defendant) Rights | Toveia (Claimant) Rights | Beis Din Selection Rule | Exceptions / Notes |
| General Principle | Typically selects Beis Din, especially if in different city | May challenge Nitva’s choice in some cases | Nitva’s right not absolute; varies by case | Distinction if both in same city (local Beis Din preferred) |
| Both parties in same city with local Beis Din | Cannot demand case outside city | Cannot demand case outside city | Case adjudicated in local Beis Din | Applies even if other city has greater Beis Din or large sums involved |
| Potential Bias (same city) | – | May request case in another city’s Beis Din | Case must be in another city’s Beis Din | Toveia covers Nitva’s travel expenses |
| Parties in different cities | Can demand case in their local Beis Din | Nitva’s local Beis Din usually chosen | Even if Beis Din Hagadol elsewhere | |
| Money held in Toveia’s city | – | May petition for local Beis Din | Toveia’s local Beis Din | Claimant can place lien (Ikkul) on assets |
| Nitva temporarily in city with Beis Din | – | Can demand adjudication there | Where Nitva is currently found | Includes Nitva traveling to Toveia’s city |
| Father vs. Son (Father is Toveia) | Must go to jurisdiction chosen by father | Father chooses jurisdiction | Father’s choice prevails | Father must reimburse son’s travel expenses |
| Potential Bias (Nitva’s city) | – | May request case in another city’s Beis Din | Case must be in another city’s Beis Din | Toveia covers Nitva’s travel expenses |
| Nitva moved from original city | Disputed if current city is followed | – | Unclear; subject to dispute | – |
| Nitva doesn’t want local Beis Din | Cannot request unrelated city’s Beis Din | – | Must use local Beis Din of either party | – |
| Multiple local Batei Dinim in city | May request court of their choosing or Zabla | May request court of their choosing or Zabla | If principal Beis Din exists, all proceedings held there | If no consensus, adjudicated by Zabla |
| No local Beis Din in either city | Can force Toveia to go to Beis Din of another city | Can force Nitva to go to Beis Din of another city | Nearest Beis Din to Nitva is chosen | If several Batei Dinim, adjudicated by Zabla if no agreement |
| Both sides agree on specific Beis Din | Agreement prevails | Agreement prevails | Proceedings held in agreed Beis Din | Not forced to go to local Beis Din, even if greater |
[1] See Michaber C.M. 14:1; Tur 14; Rambam Sanhedrin 6:6-8; Sanhedrin 31b; Bava Kama 112b; Encyclopedia Talmudit Erech Beis Din and Erech Baal Din Vol. 3 p. and Vol. 4 pp. 105-109; Sefer Chukei Chaim 12:1-7; Otzer Hamishpat 14; Seder Hadin Bebeit Hadin harabani pp. 229-321
[2] Rama C.M. 14:1; Maharik Shoresh 21; Or Zarua, brought in Mordechai Sanhedrin 709; Mabit 2:33; Birkeiy Yosef 3:3; Michaber C.M. 14:1 that so applies from the letter of the law in a case that does not involve a Malveh Veloveh, and there is no real Toveiah/Nitvah but rather each side is making a claim against the other and hence both are considered a Toveia against the other. In such a case, from the letter of the law the case must be adjudicated in the Beis Din of the city of their residence even if there is a Beis Din Hagadol in a different city and one of the sides would like the adjudication to take place there. The Smeh 14:6 writes that the above applies only by small claim. However, by any large claim of money, then from the letter of the law one of the sides may demand that the case be taken to a Beis Din Hagadol even though it is in a different city. The basis of the custom written above in the Rama to disregard any of the cases of allowance to adjudicate in the Beis Din Hagadol is the fact that today we no longer have the concept of a Beis Din Hagadol; Encyclopedia Talmudit ibid footnote 102 [regarding custom]; Footnotes 75-102 [regarding letter of law]; Seder Hadin Bebeit Hadin harabani pp. 229-236
[3] See Michaber C.M. 14:1 that in the following cases we allow the case to be adjudicated in the Beis Din Hagadol or a Beis Din Chashuv [Rama ibid] which is in another city, or in another city with greater Talmidei Chachamim [Michaber ibid]: 1) A case that involves a Malveh Veloveh, and the Malveh desires it to be adjudicated in the other city with the greater Beis Din. 2) The Toveia has a definite claim against the defendant, such as that he stole from him, or damaged his property, and there are proofs for it. 3) See the Smeh 14:6 who adds that also by any large claim of money, from the letter of the law one of the sides may demand that the case be taken to a Beis Din Hagadol even though it is in a different city. 4) See Rama ibid who brings an opinion who holds that any of the sides can demand for the case to be adjudicated in the Beis Din Hagadol which is outside of their city. [Rama ibid; Tur ibid in name of Rabbeinu Tam; Rosh Bava Kama ibid] However, according to Michaber ibid, there is no extra leniency by the Beis Din Hagadol, and it follows the regular law stated above. [Michaber ibid; Rambam ibid 9] See Encyclopedia Talmudit ibid footnotes 92-96 regarding this matter
[4] The reason: As today we no longer have the concept of a Beis Din Hagadol and hence there is no longer a concept of one of the sides demanding for the case to be adjudicated in a Beis Din of a different city when there is a local Beis Din available. [Rama ibid]
[5] Mabit 2:33; Birkeiy Yosef 3:3 that Rav Yosef Karo and other Sephardic sages practically agreed with the Maharik ibid; Tashbeitz 1:159; Maharashdam C.M. 7
[6] In these cases, from the letter of the law we give the Toveia and Malveh the right to demand for the case to be adjudicated in the Beis Din Hagadol [Michaber ibid; Smeh ibid; Rambam Sanhedrin 6:6; Rebbe Elazar in Sanhedrin 31b; See Encyclopedia Talmudit ibid footnotes 81-88] however, the custom is to adjudicate the case in the local Beis Din even in such a case.
Forcing the other side to go to the Beis Din of another country in the above cases: The Smeh, Nesivos Hamishpat explain that there exists a difference of opinion between the Michaber and Rama regarding if one may force the other side to go to a greater Beis Din which outside of their country in the above cases. According to the Rama one may only force the other side to go outside of the country if that Beis Din is a Beis Din Gadol and not just a Beis Vaad. However, according to the Michaber one may always force the other side to go to greater Sages even in other countries, even though there is no Beis Din Gadol today. [See Smeh 14:6]
[7] Michaber ibid; Rambam Sanhedrin 6:6; Rebbe Elazar in Sanhedrin 31b; See Encyclopedia Talmudit ibid footnotes 74-88
[8] Implications of all Poskim ibid
[9] See regarding Nitva: Rama ibid; Beis Yosef 14:2; Maharik Shoresh 21 and 1; Encyclopedia Talmudit ibid footnote 112 and Erech Alam; So concludes Chukei Chaim 12:7 that the same applies to the Toveia
[10] Rama C.M. 14:1; Maharik Shoresh 1 and 21; Maharashdam C.M. 7; Harei Besamim Tinyana 90; Mabit 1:343; Divrei Malkiel 3:267 and 4:168; Encyclopedia Talmudit ibid footnote 107; Chukei Chaim 12:3; Seder Hadin Bebeit Hadin Harabani pp. 237-321; See Igros Moshe C.M. 1:5
[11] Avnei Chefetz 101; Divrei Chevron 1:2; Seder Hadin Bebeit Hadin Harabani p. 240
[12] Rama C.M. 14:1; Terumas Hadeshen 1:305; 2:64; See also Shut Rashba 1:1149
[13] Rama C.M. 14:1; Maharik Shoresh 14; Encyclopedia Talmudit ibid footnote 110; Seder Hadin Bebeit Hadin Harabani pp. 263-267
[14] Rama Y.D. 240:8 and C.M. 14:1; Maharik Shoresh 58; See Encyclopedia Talmudit Erech Kibud Av Vaeim Vol. 26 p. 406 footnote 470-473; Seder Hadin Bebeit Hadin Harabani p. 267
[15] Rama ibid; See Maharik Shoresh 58; Encyclopedia Talmudit ibid footnote 473
[16] Rama ibid; Beis Yosef 14:2; Maharik Shoresh 21 and 1; Encyclopedia Talmudit ibid footnote 112 and Erech Alam; Seder Hadin Bebeit Hadin Harabani p. 312-320
[17] See Rashdam C.M. 103; Yeshuos Yisrael 2; Chukei Chaim 12:4
[18] Seder Hadin Bebeit Hadin Harabani p. 240
[19] Michaber C.M. 3:11; Rosh Sanhedrin 1:2; Tosafus Sanhedrin 5a; Igros Moshe C.M. 2:3; Encyclopedia Talmudit Erech Beis Din Vol. 3 p. 156; Seder Hadin Bebeit Hadin Harabani p. 236 and p. 252-253
[20] See Rashdam 2; Nesivos Hamishpat 3:3
[21] Rama ibid
[22] Chazon Ish Sanhedrin 15:5; Igros Moshe ibid; Seder Hadin Bebeit Hadin Harabani p. 252
[23] Rama ibid; Nimukei Yosef Bava Kama 6; Mordechai Sanhedrin 3:709; Piskei Mahariy 65; Darkei Moshe 14:1; See Seder Hadin Bebeit Hadin harabani pp. 234
[24] Mordechai ibid; Seder Hadin Bebeit Hadin ibid
[25] See Seder Hadin Bebeit Hadin Harabani P. 234 and 236 and 240 and 293
