Q: My four brothers and I inherited our father’s estate, including his business. We had to file a din Torah against our father’s second wife to recover money she took from the business. Some of us sent her a hazmanah (summons) to beis din, to which she responded through the secretary of the beis din that she is willing to come, but only if all five of us will appear together at the din Torah, not only those of us who issued the summons. Does she have a right to demand that? (Some brothers live overseas and it is hard for them to be there, especially if the din Torah takes several sessions, and one brother doesn’t want to get involved in the din Torah at all because he’s too busy.)
A: This depends on whether those who issued the summons are representing only themselves, in which case the defendant has no right to demand that the others be present, because each defendant is entitled to sue independently for his part of the case and is not required to join any others. The only caveat is that if the din Torah is in regard to something that cannot be split. For instance, if joint owners of a building are suing a neighbor and the ruling will affect all of them, then the dayanim cannot rule for one plaintiff independent of the other potential litigants, so they must all be present at the din Torah (Shu”t Chacham Tzvi 169, cited in Pis’chei Teshuvah 122:3). But that is not the case with you, because the money the defendant seized can be split, and the ruling for the plaintiffs who do appear in beis din won’t affect the claims of the brothers who do not appear in beis din.
Furthermore, if one plaintiff is willing to handle the suit on behalf of his partners, he alone can appear in beis din, and the defendant cannot say, “I’m willing to deal only with the portion of the suit that is relevant to you.” The other partners do not even need to give him power of attorney (harsha’ah) for him to do so; because he is a party to the suit, he is allowed to represent all of the partners because we assume that they know he is representing them and are willing to rely on him (Shulchan Aruch Choshen Mishpat 122:9; see Shaar Mishpat 28:2).
(If he does represent all of the partners, then they must all accept the ruling, assuming they were local and available, because beis din will say to anyone who wants to file suit later, “Why didn’t you come take part in the initial din Torah?” — unless he can prove that he didn’t know about it (Shach 122:37). [Given modern telecommunications, we would assume that partners would know if someone were representing them even if they were not local.])
The Poskim deliberate as to whether a partner who was not present at the original din Torah can file a subsequent suit if he claims that the original representative did not present certain claims in beis din (see Shulchan Aruch 122:9 with Shach 38; 176:26 with Pis’chei Teshuvah 122:2). Either way, if one partner admits to some sort of monetary obligation (hoda’as baal din), and his partners deny that they are obligated, they are not bound by his admission (Chazon Ish, Choshen Mishpat 2:8).
Some Poskim maintain, however, that if the partners are local, the defendant may demand that they appear in beis din, because not all partners would be willing to lie brazenly (Bach 122:17, explaining the Smag), but others disagree (Shach 122:39 and Chazon Ish 9). Practically speaking, the defendant can claim kim li (see BHI #473) — that the halachah is in accordance with the view of the former Poskim (Shu”t Chacham Tzvi, loc. cit.). This request will certainly be granted in situations where this claim is obvious to beis din, and they will order the other defendants to appear (Aruch Hashulchan 122:16).
As we wrote earlier, this applies only if plaintiff appearing in beis din represents his partners, but if he appears only on his own behalf, then the defendant must appear for that din Torah, and he cannot insist that all of the plaintiffs appear together (see Chazon Ish loc. cit.).
Based on the above, if the brothers who summoned your father’s second wife to beis din are representing all the brothers, then unless she says that she wants all the brothers to appear because some wouldn’t be brazen enough to lie, a few can represent the rest even without a harsha’ah.
Practically speaking, however, most batei din would not be willing to accept the case without all of the plaintiffs signing a harsha’ah, because they won’t be able to arrange a pesharah (compromise) if there is a need to do so, because a pesharah is not valid unless all parties expressly agreed to accept it. Batei din will therefore insist that a harsha’ah be signed before they accept the case (see Choshen Mishpat 123:5 and Even Ha’ezer 85:4; cf. Shaar Mishpat 77:4).
