Q: A person called a beis din’s office and said that he had a matter that had to be settled urgently, because each day that it was not settled he was incurring a serious financial loss. The secretary of that beis din called to inform me that my own din Torah, which was scheduled to be heard that day, was being postponed so the beis din could hear that case. I was disturbed, because I was waiting for the appointment for weeks and had taken a lot of time to prepare for it. Was the beis din allowed to postpone my case and place someone else’s before it?
A: The Gemara (Sanhedrin 8a) rules, based on the passuk that states, “Kakaton kagadol tishma’un — small and large alike shall you hear” (Devarim 1:17), that if litigants arguing over one prutah (a minimal amount) come before beis din, followed by litigants arguing over a maneh (an exponentially larger sum), beis din is obligated to deal with the case involving a prutah first. Although we might think that there is a bigger mitzvah to settle the case that is worth more money, the Torah teaches that beis din must nevertheless give precedence to the case that came before them first (Shulchan Aruch, Choshen Mishpat 15:1).
[An exception to this rule is if a litigant in one of the cases is a talmid chacham, in which case the obligation to accord reverence to a talmid chacham, which Chazal (Pesachim 22b) derive from the passuk “Es Hashem Elokecha tira” (Devarim 10:20), supersedes the rule of kakaton kagadol tishma’un, and the talmid chacham’s case is adjudicated first (Choshen Mishpat ibid.). The poskim write that although Torah scholars nowadays do not reach the level of scholarship necessary to be worthy of certain benefits awarded to a talmid chacham, anyone who studies Torah diligently is nevertheless entitled to have his case heard first in beis din (Shach and Pis’chei Teshuvah ibid. 1).]
It is not clear in the Gemara, however, at what point the two cases are considered to be “before beis din,” such that beis din must give precedence to the one that came first. The Sma (ibid. 1; Bach rules similarly) writes that the mere arrival of a set of litigants in beis din does not mean that their case must be heard first; only once the litigants are actually standing before the dayanim, who are prepared to hear their case, are they entitled to take precedence over litigants who appeared before the dayanim after them.
In your case, because you didn’t even appear in the beis din but merely scheduled an appointment with their secretary, the dayanim are not obligated to hear your case first, and the secretary was therefore allowed to postpone your case in favor of the urgent one.
Nevertheless, although the letter of the law does not obligate beis din to adjudicate your case first, it is customary to hear cases on a first-come, first-serve basis, because of the concept tzedek (fairness; see Sanhedrin 32b with Meiri, Choshen Mishpat 272:14). But this requirement of fairness is incumbent on the litigants, who are expected to act fairly with each other by following the order in which they arrived and not attempt to cut the line; beis din has no obligation to see to it that those who came first are heard first (see Mishkan Shalom 2:73). Furthermore, when there is a specific reason for the litigants who arrived later to be heard first, fairness dictates that those before them allow them to go first. (An example, discussed by Meiri, loc. cit., is that if one litigant in beis din is ill, his case should be heard before other cases in which the litigants are healthy; see Radvaz, Hilchas Sanhedrin 20:10; Mishpitei HaTorah 1:84.)
In addition, in your case, even if you were already being heard by the dayanim, in which case the principle of kakaton kagadol tishma’un would obligate beis din to adjudicate your case first, beis din is allowed to break to hear that case, considering the significant financial loss being suffered by one of the parties in the other case.
The halachah is that the owner of a swarm of bees that has escaped and settled on his neighbor’s tree may cut off the branch of the tree to retrieve his bees (Choshen Mishpat 274:1); likewise, if someone’s barrel of honey split, he may pour out someone’s else’s wine and use that barrel to save his honey, which is worth more (ibid. 264:5), due to the mitzvah of hashavas aveidah (Sma ibid. 17) — provided that the owner of the tree or the barrel is compensated.
Similarly, because allowing the other case to be heard will save a litigant a significant amount of money, that case deserves to take precedence over a case that does not involve such consequences.
