The beis din room was tense as Mr. Gross and Mr. Klein sat opposite each other before Rabbi Dayan and his colleagues. Their dispute, a complex business matter involving multiple transactions and claims, had already stretched over several sessions.
“This document clarifies everything,” Mr. Gross declared, placing a thick, neatly bound contract on the table. “It’s a sales agreement I signed with a third party. It clearly supports my position.”
Mr. Klein leaned forward. “May I see that?”
Mr. Gross handed Mr. Klein the document. Mr. Klein scanned a few sections, his brow furrowing.
“This is not something I can review properly in a few minutes,” he said. “There are many details here that could impact the case. I’d like a copy to examine carefully and review with my lawyer.”
Mr. Gross immediately shook his head. “Absolutely not! I don’t trust you with it. I’m willing to present it here in beis din as much as needed, but I’m not leaving a copy in your possession!”
“But how can I respond properly without analyzing it?” Mr. Klein countered. “There could be inconsistencies or issues that require careful review.”
“You can look at it here,” Mr. Gross insisted. “That’s sufficient!”
The room grew quiet as the two men turned to Rabbi Dayan.
Mr. Klein spoke up. “Rebbe, with all due respect, I need a fair opportunity to review the evidence being used against me.”
He paused, then asked:
“Is Mr. Gross required to give me a copy of the document?”
“The Rishonim dispute this issue,” replied Rabbi Dayan.
“The Mishna (B.B. 167b) discusses shitrei beirurin. According to one opinion in the Gemara, these are transcripts of the claims stated in beis din. Although one copy suffices for shared use, Rabban Shimon ben Gamliel maintains that the claims should be written separately, since each party can claim that he doesn’t want his rights in the hands of his adversary.
Following this rationale, Rashba (Responsum 1:889), Ritva (B.B. 168a) and Nimukei Yosef (B.B. 78a) rule that if a borrower requests a copy of the loan document held by the creditor, the lender is not required to allow him one; it suffices to present it in court. The lender can rightfully claim that he does not want a copy of his evidence in the hands of his adversary, who will seek unjust ways to disqualify it.
However, the Rosh (Responsum 68:24) upholds the practice of Ashkenazic communities to require granting a copy of the document to enable the borrower to identify possible forgery or similar issues in the document. He distinguishes between a copy of the claims, which the adversary can misuse to generate distorted versions of the event, and a copy of evidence, which – if legitimate – the adversary will not be able to disqualify.
Beis Yosef (C.M. 60:20) cites this dispute. He posits that the Rosh required granting a copy only if the borrower raises a claim of possible forgery, but not other claims about the document, and rules according to this median position (C.M. 16:5).
Sma (16:16) rejects this understanding of the Rosh, and maintains that the practice upheld by the Rosh was to require allowing a copy for any reason. Other Acharonim, though, accept the distinction of the Shulchan Aruch and require allowing a copy only when the borrower claims possible forgery (Bach and Tumim 16:3; Shach 16:8).
Some Acharonim add that where the details of the document are critical, such as with sales contracts, or where the Dayan is not sufficiently savvy to assess fine points, Rashba would agree that the lender must allow a copy (Ba’i Chayei C.M. 1:29; Mishpatim Yesharim 2:256).
Aruch HaShulchan (C.M. 16:8) and Nofes Tzufim (2:40) conclude that other claims are left to the discretion of the Dayanim as to whether there is a justified need to allow a copy to bring out the truth. Nowadays, there is a greater tendency to require allowing a copy to the other side (Seder Hadin (Darbarmediker) 7:50).
“Therefore,” concluded Rabbi Dayan, “given the nature of the document and the need to review it carefully, Mr. Gross must provide a copy of the document to Mr. Klein, but Mr. Klein may not divulge its contents to others.”
Verdict: The Rishonim dispute whether a litigant must allow a copy of his documents of evidence. When the other party claims possible forgery, he must provide a copy; other claims are left to the discretion of the beis din as to whether granting a copy is significant in bringing out the truth.