Zvi Wein opened the official looking letter, clearly sent by an attorney: "If your debt to Mr. Kraus is not paid fully within 30 days," it said, "my client will proceed with legal action.
"I don't know what Kraus wants from me," Mr. Wein muttered under his breath. "We agreed to settle that loan ten months ago with a shipment of merchandise." He sent back a letter that he considered the loan paid off with the merchandise, and added: "If Mr. Kraus desires to litigate, I would be interested in taking the case to a qualified beis din for a din Torah."
When Mr. Kraus received the response letter, he was irate. "That's not called settling the loan. The merchandise was poor quality, and I told him to take it all back. "
Mr. Kraus' attorney was also skeptical about litigating before beis din. "I can help you organize the material, but don't know enough to represent you in beis din. You'll have to decide."
Mr. Kraus debated the issue. He had recently begun attending a weekly shiur on business halacha and was starting to understand the prominent role of Jewish monetary law. "I'll think about this over the weekend," he told his attorney.
On Shabbos morning, as he opened the Chumash for leining, the words jumped out at him! "Shoftim v'shotrim titen lecha – You shall appoint judges and policemen..." (Devarim 16:18) There is a mitzvah to establish a Jewish beis din to judge the people justly. Shouldn't he litigate in beis din?!
After some back-and-forth with Mr. Wein, the two agreed to adjudicate in beis din. "The big question, now," said Mr. Kraus, "is which beis din?" The issue was complicated by the fact that the two lived seven-hundred miles apart, Mr. Kraus in Chicago and Mr. Wein in New York.
"There are many well-known batei din here in New York and New Jersey," suggested Mr. Wein. "I'm sure we can find a mutually acceptable one."
"We also have a highly respected beis din here in Chicago," answered Mr. Kraus. "I expect that you would come here to adjudicate."
"I'm holding the money," said Mr. Wein. "If you want to sue, come here and claim it."
"What chutzpah!" shot back Mr. Kraus. "I was nice enough to lend you the money. You refuse to pay, and now you want me to fly in to New York to adjudicate?"
"I repaid the loan," answered Mr. Wein tersely. "Why should I have to come out to Chicago because you backed out of an agreement?"
Mr. Kraus slammed down the phone. "I can't believe this!" he exclaimed. "There's got to be a rule in halacha where to adjudicate."
Mr. Kraus called Rabbi Dayan to advise him, "If I lent money to someone in another city and we need to litigate in beis din, who goes to whom?"
Rabbi Dayan said: "The Gemara (Sanhedrin 31b) teaches that, in certain respects, the borrower is subservient to the lender. However, the Rama rules that if the plaintiff and the defendant live in different cities, the plaintiff must go to the defendant's city." (C.M. 14:1)
"Why is that?" asked Mr. Kraus.
"There are a number of explanations," answered Rabbi Dayan. "The GR"A explains simply that since the plaintiff is the one interested in pursuing the case, he has to make the effort to go to the beis din. This explanation is somewhat questionable in the context of a lender and borrower, based on the Gemara that the borrower is subservient, but certainly understandable in other litigation."
"What are some of the other explanations?" asked Mr. Kraus.
"Many explain that, in principle, the borrower should have to go to the lender, as the Gemara indicates," continued Rabbi Dayan. "However, later generations instituted that the plaintiff should always go to the defendant. This was to prevent people from frivolously suing a wealthy person from another town in the hope that he would settle to avoid having to travel. Furthermore, the defendant's local beis din would likely be more effective in forcing him to pay if found guilty."
"Are there any situations in which the plaintiff can force the defendant to come and adjudicate in his city?" asked Mr. Kraus.
"If the defendant had assets there that the beis din saw good reason to freeze, then the plaintiff can force to defendant to come and litigate in the place where his assets were frozen," said Rabbi Dayan. (Cf. SM"A 14:15,17)
"What if the beis din in the plaintiff's city is more renown?" asked Mr. Kraus.
"Even in this situation the Rama writes that the defendant can insist on litigating in his city," said Rabbi Dayan, "so long as the local beis din is competent."
Mr. Kraus thanked Rabi Dayan, and went to book his flight.