Procedure In Civil Causes:

By: Executive Committee of the Editorial Board. , Lewis N. Dembitz

No Judgment by Default.

Jewish jurisprudence, both in Biblical and in Talmudic times, attached the greatest importance to the laws of property and to their faithful administration by the judges. In regard to the manner of conducting civil suits the Pentateuch contains very few hints. But in Deut. i. 16 the judges are told, "Hear . . . between your brethren"; and Deut. xix. 17 declares, "Both the men, between whom the controversy is, shall stand before the Lord." These and other passages support the Talmudic rule that judgment can be pronounced only against a defendant who has appeared; there is no such thing as "judgment by default"—condemnation of the accused because he has not appeared before the court to make defense. This seems in modern times a great defect in procedure, leading to much needless friction; but less than a hundred years ago the English court of chancery had the same disadvantage to contend with: it acquired jurisdiction over the defendant only by his answer, and the latter was compelled to answer the complainant's bill, even though he had nothing to say in defense. But an exception to this rule has been shown under the head of Foreign Attachment —proceedings by a bond creditor against the property of an absent defendant, an innovation arising from the necessities of a later age. In fact, the Talmud suggests (B. Ḳ. 112b) that at least upon bonds and in action for the recovery of deposits there should be judgment and execution without appearance. However, there could not well be a judgment by default, as there was no written complaint.

Job's wish (xxxi. 35), "Oh that . . . mine adversary had written a book"—meaning a "libellus" or formal complaint—indicates that in his day there were written pleadings. But in the procedure known to the Talmud the allegations of plaintiff and defendant are made by word of mouth in the presence of the judges, and are recorded by the clerk, much as were the pleadings in the Anglo-Norman courts in the days of the Plantagenets. The codes deduce from the Mishnah the rule that no written pleadings can be required: "All judicial writings may be written only in the presence of both parties, both to pay the fees of the writers; R. Simeon ben Gamaliel declared that two copies should be made, one for each" (B B. x. 4). For the choice of the court which shall try a civil case see Jurisdiction .

Sittings of Court. Printers' Marks . (From the Sulzberger collection in the Jewish Theological Seminary of America, New York.) Printers' Marks . (From the Sulzberger collection in the Jewish Theological Seminary of America, New York.)

As to the time of holding court, the ordinance of Ezra, which appoints Monday and Thursday for that purpose, was recognized by the Mishnah (Ket. i. 1) and by the Gemara (B. Ḳ. 112b, 113a); but the custom has long since fallen into disuse. The courts should not sit on Sabbaths or during festivals (Beẓah iv. 1); for, as the Talmud explains, there would be temptation to write; but if the court does sit and pronounce a judgment, it is binding (Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 5, 1). The rule not to begin a session in the afternoon is made in order that the afternoon prayer should not be neglected by judges and others concerned (Shab. 9b); but if the cause is taken up in the forenoon it may proceed not only during the afternoon, but after nightfall, the judgment then rendered being valid. No one can be compelled to attend a civil trial in the month of Nisan, on account of the (barley) harvest, nor in Tishri, on account of the vintage; and a summons may not be served on Friday or on the eve of a festival (B. Ḳ. 113a). The vacations in Nisan and Tishri were continued in later times, when farming was no longer the occupation of the Jewish people, in order to give litigants leisure to prepare for the festivals.

Cause List.

When the proper time comes for hearing causes, the general rule is that the cause first begun should be first heard; but certain classes of plaintiffs are privileged. Thus, according to Ḥoshen Mishpaṭ, 15, 1, seemingly based on a remark of the Talmud (Shebu. 30), the suit of a scholar, though begun later than that of another, should have priority. This is denied by some authorities; but the suit of an orphan must always be heard first; next, that of a widow (following Isa. i. 17—"judge the fatherless, plead for the widow"); and a woman's cause must be heard before that of a man (Ḥoshen Mishpaṭ, 15, 2).

The place always mentioned by the Bible in connection with the hearing of civil causes is the city gate—the wide space left in the broad city wall at the entrance to the town. The gate as a place of trial is not mentioned in the Mishnah, but the Palestinian Talmud mentions the sittings of a court at the gate of Cæsarea. Not much space was needed for civil trials, and they generally came to be held in the house of the rabbi sitting as principal judge. However, there have been Jewish "town halls," such as the "Jüdisches Rathhaus" in Prague, in very recent times.

Days of Court.

The first written document issued in a civil suit is the summons ("hazmanah" = "time-fixing"), which is obtained, upon the verbal application of the plaintiff, from the ordinary judges and is signed by them or by one of them. It is served on the defendant by the "messenger of the court" (see B. Ḳ. 112b, where it is said that, issued on Tuesday and served on Wednesday, the court may fix the time of trial for Thursday of the same week). The messenger reports the fact of service, or that the defendant has avoided the service.

According to B. Ḳ. 112b, the messenger is accredited for the purpose of pronouncing the ban, but not for the purpose of delivering the "petiḥah," that is, the formal document of excommunication, which can be made out only upon further proceedings showing the defendant's contumacy ( see Contempt of Court ).

If the defendant, when first brought into court, desires time to gain a better understanding of his case, or to await an absent witness, or if he asks for time in which to raise by private sale the means of paying the debt, the Talmud ( l.c. ) permits him a delay of as much as ninety days. In the Talmudic age the Jews were farmers. The modern rule, adapted to a trading people, is less liberal; the Ḥoshen Mishpaṭ (16, 1) will not allow more than thirty days, even when a material witness is absent; it argues that if defendant's witness should appear after judgment it is open to the defendant to bring suit to vacate the judgment and to recover what he has been unjustly compelled to pay.

In Person or by Attorney.

In general, both parties should appear in person to carry on their pleadings. The reason is that each may thus be restrained by a sense of shame from denying the true allegations of his opponent, or from asserting what both parties know to be untrue. Yet where a demand belongs to several persons jointly ( e.g. , to the several heirs of a creditor), in the nature of things one must speak for all ( see Agency, Law of , where an attorneyship ["harsha'ah"] for the plaintiff was worked out from this consideration). Upon this theory the plaintiff could appoint an attorney only where his demand was assignable, as in an action for the recovery of land, or upon a bonded debt, or on an undisputed deposit. Such, it seems, was the Talmudic rule; but the Geonim extended to almost all cases the right of the plaintiff to plead by attorney (Ḥoshen Mishpaṭ, 123). The defendant, however, could not divide his liability; moreover, with him the temptation to deny his adversary's assertions is stronger; hence he could not plead by attorney. The only concession made to "honored women" and to "scholars" was that the clerks of the court might call on them at their houses, and there take down, in writing, their statements of fact ( ib. 124).

Status of Parties.

In the nature of things some parties can not plead for themselves. Infants, boys under thirteen or girls under twelve, the deaf and dumb, and lunatics can plead only through a guardian; and it is the duty of the court to appoint a guardian for such, if they have none, whenever they become parties to a suit. Again, the husband is the natural attorney for his wife as to "property of the iron flock," which he has taken possession of and for which he is liable, but not as to "fluid property" ("nikse melug"); yet where land of this kind bears fruit, the husband, being entitled to the latter, can sue for both land and fruit ( ib. 122, 8). A part-owner, such as one of several heirs, can sue for himself and his fellows without letter of attorney, and his fellows are bound by a judgment for the defendant, unless they live in another place, in which case the defendant can tell the acting plaintiff, "Either bring a letter of attorney or sue only for thy own share."

Oral Pleadings.

The plaintiff whose attorney has lost a case can not avoid the result by showing that he had before the hearing revoked the power of attorney, unless notice of the revocation had been brought home to the court ( ib. 3). Both parties being before the judges, they plead in person; the plaintiff sets forth the facts on which his claim is based, and the defendant answers; when the latter introduces new affirmative matter the plaintiff may reply; and there may be a rejoinder. Where either party admits a fact stated by his opponent, the admission, inthe words of the Talmud, is "better than a hundred witnesses." It will be seen that in certain cases a denial can be made, or affirmative matter pleaded, only under oath, Scriptural or rabbinical.

When an issue is raised by mere denial, the proof is made by the evidence of witnesses in the manner described in the article Evidence . The production of deed or bond ("sheṭar"), unless it has been "established" before a court or judge, must be made by the attesting witnesses, though it is said (Giṭ. 3a et al. ) that under the Mosaic law an attested deed proves itself ( i.e. , is presumably genuine), and that the obligation of bringing the witnesses into court is only rabbinical. A "note of hand" ("ketab yad") may be set up by witnesses proving the maker's handwriting.

The very narrow limits within which weight is given to circumstantial evidence has been shown under Evidence , and some of the presumptions which may guide the judges are given under Burden of Proof and in the article Maxims, Legal . To these may be added the maxim "no one pays a debt before it is due" (B. B. 5b; see, for its application, Debts of Decedents ). Hence, such a payment can be proved only by the direct testimony of two witnesses: There is a slight presumption that a man does not go to law without having some ground for it; and there are some cases, known as Miggo , in which the defense is favored, because if the defendant had not been a truthful man he could have introduced more plausible arguments. The discretion which the judges enjoy in certain cases, to decide according to the weight of evidence and the probabilities, is known as "the throw of the judges" ("shuda de-dayyane").

Oath as Alternative to Payment.

A solemn oath is imposed on the defendant as an alternative to payment in four cases, the first being provided in the Mosaic law itself (Ex. xxii. 8, 9): (1) a proceeding by the owner of chattels against the gratuitous depositary; (2) where the defendant admits the assertion of the plaintiff in part ("modeh be-miḳẓat ḥayyab bi-shebu'ah"; the most common case); (3) where the plaintiff establishes by the testimony of two witnesses his assertion as to part of his demand; (4) where the plaintiff has the testimony of one witness for his assertion. In these cases the court declares to the defendant, "You must either pay or clear yourself by the solemn oath."

The rules as to the oath of the depositary are given in the article Bailments . Here the Mishnah is very explicit:

• (1) In order to justify a sworn denial of a part of a claim, where the other portion thereof is admitted, the amount demanded must be at least equal to two small silver coins each equal to one-sixth of the "denar," and the amount admitted must be at least one "peruṭah." Next, the admission must be of the same kind as the demand; thus, to admit a claim to a peruṭah, which is of copper, is not a partial admission of having two of the plaintiff's silver pieces; but this rule holds good only when the demand is specific, e.g., if a claim is made for the silver coins, not for the sum of money. Where the demand is for two silver pieces and a peruṭah, the peruṭah being admitted, or for a mina, fifty denars being admitted, an oath is due. The claim being "My father has a mina in thy hand," and the answer, " I owe thee fifty denars," no oath is necessary, "for the defendant is like a man who returns lost goods." So where demand is made for a "litra" (in weight) of gold, defendant admitting a litra of silver; for grain, beans or lentils being admitted; for wheat, barley being admitted. In these cases, and in other similar ones, no oath is required.
• (2) The oath is not required in an action for slaves, bonds or deeds, or lands, nor for things consecrated; and land in this connection includes everything belonging to it, even ripe grapes. But when movable property and land are included in the same demand, and the defendant makes denial in regard to part of the movable property, he must swear as to the land also.
• (3) One who confesses a debt in the presence of two witnesses and thereafter denies it in open court is not admitted to swear, being disqualified as a "denier" ( ).
• (4) The defendant can avoid denying the rest of the demand if he at once pays over or delivers to the plaintiff the part confessed; for then the suit for that part is at an end, and he stands on the same footing as if he denied the whole cause of action.

By some sort of analogy a widow, or divorced wife who has "lessened" her jointure by admitting the receipt of a part thereof, must, to recover the rest, take an oath (Sheb. vii. 7). This position, taken by R. Ḥiyya, is mentioned only in a late baraita (B. M. 3a). An opinion is expressed by some that proving part of the demand by witnesses calls only for the lesser or rabbinical oath in denial of the rest; but later authorities demand here also the "solemn" or Biblical oath (Maimonides, "Yad," Ṭo'en, iii. 10). Proof by one witness, as the Talmud points out (Sheb. 40a), is by the Law declared only insufficient to convict of crime, but not to require an oath for its contradiction in money matters. The third and fourth (see above) occasions for the oath occupy but little space in Talmud and codes, while the "admission of part" covers a large field. In general, the oath is never required in denying the demand of a deaf-mute, of a person of unsound mind, of an infant, or of the Sanctuary; nor where the plaintiff states his grounds of action as being only probably true ( ), instead of asserting them to be certainly true ( ).

Oath by Plaintiff.

While generally the judicial oath is taken by the defendant to clear him from liability, in a few cases the plaintiff may recover upon his oath (Sheb. v.-vii.): (1) A hired man: Where the amount earned is established by witnesses, and the employer says he has paid it, and the workman denies it, the latter may swear and recover. (2) One who has been robbed: Where witnesses have established that the defendant entered the plaintiff's house to make an unauthorized distraint, and the plaintiff says, "Thou hast taken such an object," but the defendant denies it, the former swears and recovers. (3) One who has been injured: Where witnesses prove that the plaintiff went to the defendant uninjured and left him wounded, the plaintiff swears and recovers. (4) One who is unworthy of belief: A professional dicer ( see Evidence ) or a flier of pigeons, for instance, cannot, to discharge himself from a liability, take the usual oath. The plaintiff swears and recovers also in other cases in which the defendant may be discharged by oath; but where both are disqualified the defendant takes the oath which the law imposes on him. (5) The shopkeeper as to his tablet: This does not mean that by his mere oath he can make the charges written thereon stand good against his customer; but where the latter has given an order ("Give my son two bushels of wheat"; "Give my laborer change for a 'sela''"), and the shopkeeper, who has the charge on his tablet, says, "I have given it," though the customer denies it—in that case the shopkeeper may, on his oath, recover from the party giving the order. The Mishnah says that both the shopkeeper and the son or laborer should swear; but to this Ben Nannos objects that if they swear against each other there must needs be perjury, and the outcome of the discussion will be obscure (Sheb. 47b). The later authorities, as Maimonides, hold that both the shopkeeper, swearing that he has delivered, and the laborer, swearing that he has not received, can recover from the employing customer.

The Torah knows nothing of an oath to be taken by the plaintiff; yet in most of the cases in which the Mishnah imposes the oath upon him, the solemn or Biblical oath is to be taken. For the necessity of an oath by him who sues the heirs of his debtor, see Debts of Decedents .

The principal occasion for the rabbinical oath ("shebu'at heset") is the assertion, not founded upon an attested bond, of payment of a debt. Where a loan is made or credit is given otherwise than upon the security of such a bond, and there is no stipulation that payment can be made only before witnesses, the debtor may plead payment ( ), and make his assertion good by the lesser oath. The weight of authority ("Yad," Malweh, xi. 3; Ḥoshen Mishpaṭ, 69, 2) puts the holder of a note of hand in the same position as a creditor by word of mouth only; but some of the late authorities gainsay this opinion.

Where the defendant denies the facts on which his obligation is based ( i.e. , denies the loan), and these are proved against him by witnesses, he can not thereafter plead an affirmative defense ( i.e. , that he has paid) and sustain that defense by the rabbinical oath; for not only has he, as a "denier," lost his credibility, but he can not be admitted to prove such a defense by witnesses; for to say, "I have not borrowed," is an admission that he has not paid (B. M. 17a). Where the defendant admits that the plaintiff counted out and handed to him a sum of money, he can clear himself by alleging that it was in payment of a debt due to him (the defendant), taking the rabbinical oath to support the allegation; but if he denies the delivery of the money he will not be permitted to make such a defense, for if none was delivered, there could be neither gift nor payment.

Where either party was admitted to take the oath, and took it, this ordinarily led, as a matter of course, to a decision in favor of that party. But in those civil suits which were decided upon testimony of witnesses or upon written proof, or upon the pleadings and admissions of fact, the true course (Sanh. 30a) is based on the custom of the "pure-minded" at Jerusalem—to remove the parties, their witnesses, and everybody else from the court-room, so that the judges might discuss the case among themselves ( ) and "finish" the matter ( i.e. , give their judgment). Careful and slow deliberation was recommended by the men of the Great Sanhedrin (Abot i. 1). When judgment is rendered by a majority the judges are forbidden to disclose how the vote was divided. If one of three judges will not give an opinion for either side there is no court, and new judges, two at a time, should be cooptated until a majority declares for one of the parties. If a majority can not be obtained judgment is rendered in favor of the defendant. (For the corresponding rule in criminal cases see Acquittal .) The judgment need not be made out in writing, unless the successful party demands a transcript.

The Gemara quotes approvingly the saying, "Let the judgment pierce the mount" (Sanh. 6a, b)—a saying paralleling the familiar "Fiat justitia, ruat cœlum"; that is, the judges can not "split" the matter in controversy, but must act upon the law that fits the case, no matter how much hardship will be entailed, for to decide correctly is a duty laid upon them by the Torah: "They shall judge the people with just judgment," and "The judgment is God's" (Deut. xvi. 18, i. 17). Yet a "splitting" is highly recommended when it occurs as a compromise ("pesharah") between the parties, and the judges should advise such a course, for thus only will they fulfil the words of Zechariah the prophet (viii. 16): "Execute the judgment of truth and peace in your gates." But in later times, when in the countries of the Dispersion it became increasingly difficult for the Rabbis to enforce their decrees against unwilling litigants, their efforts were directed more and more toward inducing the disputants to agree among themselves, and skill in bringing about a compromise before giving a decision on the law of the case was deemed the highest qualification of the rabbi or dayyan (Ḥoshen Mishpaṭ, 12, 2). The compromise made before the judges is like any other contract, and becomes binding only when the formalities are complied with which change the title to property. See Alienation and Acquisition ; Execution ; Judge ; Set-Off .

E. C. L. N. D.