Mr. Weiss had loaned his downstairs neighbor Mr. Feder $25,000 for six months. Toward the end of the loan period, a disagreement arose over substantial water damage that Mr. Feder had suffered from a leak above. Mr. Feder was emphatic that Mr. Weiss was at fault for the damage and liable for it, while Mr. Weiss denied responsibility.
When the six months were over, Mr. Weiss asked for repayment of the $25,000 loan.
“I don’t need to repay you,” replied Mr. Feder. “You owe me for damage that you caused, which comes to at least that much!”
“I explained to you that I’m not responsible for the damage,” argued Mr. Weiss. “You remain liable to repay the loan.”
“I have no doubt you’re responsible,” insisted Mr. Feder. “I’m not paying!”
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, since he caused me a corresponding damage,” Mr. Feder replied. “I refuse to come.”
Mr. Weiss, in consultation with the beis din, had his 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 the calendar with both parties and set a date for the session. Mr. Feder did not show up on that date, and had not provided notice beforehand.
The secretary contacted Mr. Feder. “Why didn’t you come?” he asked.
“It wasn’t convenient for me,” said Mr. Feder. “I had some errands that day.”
“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 adequately substantiate his counterclaim that Mr. Weiss was liable for the water damage. The beis din ruled in favor of Mr. Weiss and obligated Mr. Feder to repay the full $25,000.
“What about expenses?” asked Mr. Weiss. “I missed two days of work for the two sessions, paid the lawyer’s fee to draft the letter, and employed the services of the attorney. Am I not entitled to reimbursement of my expenses?”
“Civil law often imposes expenses on the guilty party, but halacha 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 of this?” asked Mr. Weiss. “He caused the other litigant 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 before the beis din and 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 the travel expenses and loss of work days he caused.”
“Why is that?” asked Mr. Weiss.
“The defendant had no right to refuse the summons, so that the 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 SM”A 14:27; Pischei Teshuvah 14:12; Aruch Hashulchan 14:10; Veshav Hakohen #99)
