Suppose that you have witnessed a traffic accident between
two cars and one of the drivers asks you to give formal
testimony in front of an Israeli court in proceedings run
according to non-Jewish law. Are you allowed to do this?
Fifty years ago a religious attorney was taken to a din
Torah regarding a civil monetary matter. He refused to
appear in front of the beis din, preferring the
secular courts. The attorney turned to HaRav Zvi Pesach
Frank zt"l to try to "explain" why his actions did
not mean that he was turning his back on the laws of the
Torah.
Instead of answering him back, HaRav Frank responded as
follows: "I assume that you say the brocho everyday
shelo osani goy. If you abandon the laws of the
Torah, and make a point of choosing to be judged by non-
Jewish law, why should you make this brocho?"
If this attorney thought that because his chosen judges were
Jewish HaRav Frank's objection did not apply, he was gravely
mistaken. HaRav Frank says that, "a Jew judging other Jews
according to non-Jewish law is wicked and rebelling against
Toras Moshe. He is worse than a non-Jew, who is not
obliged to judge in accordance with Jewish law" (quoted in
Tzitz Eliezer, volume 12, chapter 2).
Poskim have always adopted a strict line on
arko'os, and we find some very severe statements made
by gedolim throughout the generations about the
issue.
The Rashbo zt"l writes in a responsum: "Why do we
need our holy books! Should they teach their sons the laws
of the non-Jews and build tattered altars in non- Jewish
study houses? G-d forbid, let no such situation arise
amongst us, must the Torah wrap itself in sackcloth?" A
person who uses non-Jewish courts "is within the category of
those who uproot all the laws of the complete Torah, and he
demolishes the walls of the Torah and uproots its very
foundations." In case anybody thought that he could gain
personally by infringing this basic halochoh, the
Rashbo adds: "The Torah will insist that he be punished." In
this article we shall outline the details of the prohibition
to use non- halachic law courts.
A Slap in the Face for the Torah
By way of introduction, and because of the widespread
ignorance which, unfortunately, is still prevalent in many
circles, we quote from HaRav Yechezkel Sarna zt"l
(from the book Achar Heosef):
"It would appear that the halochoh brought in the
Shulchan Oruch that somebody who refuses to be judged by
Jewish dayonim may take his case to be heard by the
arko'os if the dayonim give him permission to
do so, only applies to non- Jewish courts, since such
institutions are legitimate for the non-Jewish population --
which fulfills the mitzvoh of dinim by using them --
and although a Jew is forbidden to be judged by them, the
chachomim nevertheless permitted it so that an
aggrieved party may find redress and be able to obtain money
due to him using the non-Jewish court.
"It is probable that the heter does not apply to
Jewish arko'os, because the very existence of these
institutions constitutes a rebellion against Toras Moshe
Rabbeinu and anyone using them becomes an accomplice to
this aveiro. Even if a person suffers a loss because
of this, he is not permitted to use these courts. His only
remedy is to go to the non-Jewish arko'os, such as
the Moslem Kadi. On the other hand, such a course of action
also involves a desecration of the divine name, since the
non- Jews do not appreciate any distinction between
different legal systems and what they see is that we
renounce Jewish law in favor of their law. This matter has
to be considered in depth before a ruling can be made: it is
very difficult to find a solution, because there is no
mention of this dilemma anywhere, even as a theoretical
question (hilchesa lemeshicha), for who could have
imagined such an unprecedented state of affairs would ever
occur? Such a situation could only arise in an "independent"
State.
"We have become so indifferent to this situation that even
the religious and chareidi newspapers are full of reports
describing cases from these courts, and no one realizes that
every such report is a slap in the face of our holy Torah
and its adherents."
In this article we have not taken into account the opinion
expressed by HaRav Sarna because, as far as we are aware,
this shiitoh is not accepted in practice by any
beis din in Eretz Yisroel today. Consequently,
whenever reference is made in this article to a non-Jewish
court or authority, we do not intend to exclude a non-
halachic court or authority run by Jews. We only brought
this quotation from HaRav Sarna in order to illustrate the
severity of the issues involved in this area of
halochoh.
Source of the Prohibition
The Rambam in chapter 26 of Hilchos Sanhedrin writes,
"Anyone adjudicating in accordance with non-Jewish laws and
using their law courts, even if these laws are the same as
Jewish laws, is a wicked person, and it is as if he has
blasphemed and rebelled against the law of Moshe Rabbeinu,
as it says, `And these are the laws which you shall set
before them' -- and not before a secular authority.'" The
Shulchan Oruch makes the same ruling in Choshen
Mishpot 26:1.
Because of the severity of the prohibition, R' Akiva Eiger
writes (siman 26) that as long as the person has not
returned money which he was awarded by a non- Jewish court,
he is not eligible to be a witness. He does not count as a
member of a minyan (Hago'os Kesef Hakodshim (ibid.)),
nor is he appointed to be a shliach tzibbur (Baer Heitev,
Orach Chaim, 53). For this reason, a woman who claims
alimony payments and so on from her husband from the secular
courts is considered to be overes al das (a woman
transgressing fundamental halochos) since someone who
goes to arko'os is rebelling against the Torah.
It should be noted that the cheirem of Rabbeinu
Gershom does not apply to an overes al das (Remo, Even
Hoezer 115:4) and she may be divorced against her will
(Shut Oneg Yom Tov, 149) without the need to resort
to a heter of 100 rabbonim (Shut Nitei Naamanim,
Even Hoezer 63).
The Maharsham writes that someone whose wife has behaved
wickedly by applying to the non-Jewish courts and informing
against him, is permitted to marry another wife. In shut
Yehoshua it says that "if a woman disobeys a ruling of a
beis din she is an overes al das, since she is
unwilling to obey the verdict of worthy people, and only
follows the dictates of her own mind, and it is a mitzva to
divorce her. All the more so is a woman who goes to a non-
Jewish court, and thereby rebels against Toras Moshe
Rabbeinu and desecrates the divine name considered an
overes al das." (See also Shut Chavolim Bineimim,
vol. 3, Even Hoezer 66, and Shut Tirosh
Veyitzhar, 81).
The Shulchan Oruch in Choshen Mishpot (26:2)
rules as follows: "If the non-Jewish authorities hold sway,
and the defendant is a violent person, and [the plaintiff]
cannot obtain what is due to him by applying to Jewish
dayonim, he must first sue him before Jewish
dayonim. If the defendant refuses to appear, the
plaintiff may ask the beis din for permission to
resort to non-Jewish judges in order to extract what is due
to him from the defendant." This means that if Reuven sues
Shimon and Shimon refuses absolutely to be judged by the
beis din, he cannot sue him in a non-Jewish court
immediately, but needs the permission of the beis din
to do this. The source of this halochoh is the
gemora in Bovo Metzia 92b.
The Nesivos Hamishpot (Choshen Mishpot 26:3) writes
that this halochoh only applies to a situation where
the dayonim are absolutely sure that the defendant is
liable -- if the plaintiff has produced a written promissory
note, for example. If there was only an oral agreement about
a debt, on the other hand, the dayonim cannot give
permission to apply to the non-Jewish court for relief.
Instead, they put the defendant into nidui.
However, the prevalent minhag is that a beis
din gives permission to resort to the arko'os in
any situation of a recalcitrant defendant, since plaintiffs
would otherwise be totally helpless. Anybody having a claim
against somebody would lose what is due to him, if clear
evidence of a debt was not produced to the beis din,
because even if someone is put into nidui, he would
disregard it.
The Rambam writes at the end of Hilchos Sanhedrin:
"If the non-Jewish authorities hold sway, and the defendant
is a violent person, and [the plaintiff] cannot obtain what
is due to him by applying to Jewish dayonim, he must
first sue him before Jewish dayonim. If the defendant
refuses to appear, the plaintiff may ask the beis din
for permission to resort to non-Jewish judges in order to
extract what is due to him from the defendant." The Imrei
Binoh writes that the phrase "by applying to Jewish
dayonim" implies that the plaintiff is given
permission to resort to the non-Jewish courts so long as he
has sued the defendant first in front of a beis din,
even if the beis din do not know whether the
plaintiff's claim is correct. This is contrary to the view
of the Nesivos cited above.
The Rosh in Bovo Kamo (92) makes the same point, and
it is also implied by the Tumim (in 26:7). In Shut
Mishpetei Shmuel, 114, he writes explicitly: "since [the
defendant] does not agree to be judged in a din
Torah, it is as if he has been held liable [by the
beis din] and [the plaintiff] is entitled to go to
the arko'os." (See also Yeshuos Yisroel, Ch.M.
26).
In Kli Chemdo al haTorah, parshas Mishpotim, he
writes as follows: "I wish to mention that I am very puzzled
about something. When the Torah says, `before them, and not
before the non-Jews,' this only applies if the defendant is
willing to be adjudicated by the beis din, but if he
is unwilling, the plaintiff receives permission from the
beis din to have recourse to the non-Jewish courts in
order to obtain what is due to him. How is it permitted to
transgress a negative prohibition stemming from a positive
command, namely `before them, and not before the non-Jews'
even if this involves a monetary loss, seeing that a person
is obliged to give up all his belongings in order not to
transgress a negative prohibition, especially one involving
a positive action (kum ve'asei).
"It cannot be argued that by having received the permission
of the beis din it is as if the non-Jewish court will
act as agents of the beis din, since this could only
be the case when the arko'os compel the parties to
obey the dayonim and the ruling of the beis
din. If, however, the non-Jewish court rules according
to its own laws and customs, and holds a party liable to
make a payment which it is not liable for at all under
Jewish law, how is it permitted to have recourse to the non-
Jewish court with a view to obtaining money by using it? I
find this matter very puzzling."
The acharonim have suggested an approach as follows.
The prohibition of being judged by a non-Jewish court is
mide'Orasio, as the Radbaz writes in his Responsa,
part one, 172. In Medrash Tanchuma, parshas
Mishpotim, para. 3 it says, "'And these are the laws
which you shall set before them' -- before them, and not
before non-Jews. How do we know that if two Jewish parties
know that a non- Jewish court will judge according to Jewish
law, that it is forbidden to use that court? It says `which
you shall set before them' -- before them, and not before
non-Jews, because whoever renounces Jewish law and goes to
the non- Jews, denies Hakodosh Boruch Hu first, and
then denies the Torah, as it says, `For their rock is not as
our Rock, even our enemies themselves being judges
(Devorim 32:31).'"
The implication is that the reason for the prohibition to be
judged by a non-Jewish court is that a person thereby
"renounces" Jewish law in favor of non-Jewish law.
Consequently, it is possible to argue that the prohibition
only applies when a litigant in a case which could be heard
by Jewish dayonim chooses arbitrarily to be judged
instead by non-Jews, thereby denigrating Hashem's Torah. If,
on the other hand, a plaintiff first sues a defendant in
front of a Jewish beis din, and the defendant acts
violently and refuses to be judged by the beis din or
to abide by its judgments, then the prohibition does not
apply, since the plaintiff, for his part, trusts Jewish law,
and has only been forced to turn to the non-Jewish
authorities by the defendant's violence.
This point is also implied by the Shulchan Oruch
(Ch.M. 26): "Whoever goes to be judged by them is a
wicked person, and it is as if he has blasphemed and
rebelled against the law of Moshe Rabbeinu o'h." In
other words, only somebody who abandons the law of the Torah
and goes to be judged by a non-Jewish court, holding these
in higher esteem, is considered to be denying and rebelling
against the Torah, but if he goes to a beis din
first, but the other litigant is violent and unwilling to be
judged by a beis din, the willing party is not
considered to be "rejecting the Torah."
Therefore, even if one party refuses to be judged by the
beis din, the other party still has to receive the
permission of the beis din to sue him in a non-
Jewish court, because that way he shows how important the
halochoh is to him, that he knows that disputes
between Jewish litigants should be resolved in front of a
beis din, and that he is not rejecting Jewish law
chas vesholom. This is also implied by Shut
Maharsham, vol. 1, 89).
Summoning a Recalcitrant Party to a Non-Jewish Court as a
Means of Applying Pressure
If somebody refuses to be judged by a beis din, is it
permitted to sue the noncompliant party in a non-Jewish
court when the plaintiff has no intention of having his case
heard by the arko'os, but only wants to threaten the
other party and force him to come to and abide by a din
Torah?
HaRav Ben-Zion Wosner, writing in Kovetz Divrei
Mishpat, writes that this is forbidden, since the whole
reason for the prohibition of turning to non-Jewish courts
is that a person thereby offers respect to them and
desecrates the Torah, as Rashi says in the beginning of
Mishpotim, therefore if he turns to the
arko'os even if only using them to summon the
defendant, by this act itself he is granting them honor and
respect.
The words of the posuk also confirm this point: it
says, "And these are the laws which you shall set before
them," not "which you shall judge before them." We may
conclude from this that the very act of submitting
("setting") a case to the arko'os is forbidden by the
Torah. This is also implied by the Mordechai in Bovo
Kamo, 195, and, on the face of it, explicitly stated in
Shut Tashbetz, vol. 4, 6. We learn from these sources
that not only is someone excommunicated who receives a
judgment in his favor from the arko'os contrary to
his rights under the halochoh until he returns
anything obtained by means of the judgment, but also someone
who acts in a brazen manner by declaring his intention to go
to the arko'os is rebuked. If he persists in his
disobedience, we warn him that he will be excommunicated if
he goes to the non-Jewish courts. If it is forbidden even to
make threats in our presence, it is certainly forbidden to
actually approach the arko'os and start proceedings
there.
Executing a Judgment
If there has been a psak din by a beis din
holding a defendant liable to make a payment or to perform
an act, and the defendant does not abide by the judgment, it
is permitted to execute the judgment by taking it to the
Execution Office (Misrad Hotza'a Lapo'al in Israel).
In Shut Netzach Yisroel, 26, HaRav Y. Grossman
derives this from a responsum of the Chasam Sofer
(Ch.M., 3), where he writes, explaining Rav Sherira
Gaon, "On the contrary, it is an honor for Jewish
dayonim who have made a judgment in favor of
somebody, but do not have the power to offer the aggrieved
party redress, to testify in front of the non-Jewish court
that so- and-so has been held liable by us to pay [or do]
such and such." (See also Shut Divrei Chaim, Ch.M. 7,
Shut Ramaz, Ch.M. 6, and Shut Shoel Umeshiv,
3rd edition, cheilek 3, 125).
The Maharsham in his Shut, vol. 3, 195 and vol. 1,
89, writes in the name of the Butchatcher Rov that in the
case of a debt which is totally undisputed by the borrower,
it is not necessary nowadays to receive the permission of
the beis din, and to request such permission is only
middas chassidus. In a case where a psak din
has already been handed down by a beis din, however,
it is obvious that one need not request permission again
from the beis din to have the psak din
implemented by the arko'os.
In a similar vein, it says in Shut Vayoshev Moshe,
vol. 2, 130, that it is permitted to execute a check (which
has not been cleared by a bank) at the Execution Office,
when the person who wrote the check has no claim against the
one holding the check, since it is clear that a debt exists,
and the person executing the check is not thereby granting
respect to the non-Jewish authorities.
Liens
Is it permitted to submit an application to a non-Jewish
authority to put a lien on a debtor's property?
We find the following statement of the mechaber on
the subject of a lien on property (Ch.M. 73:10): "If
somebody [a lender] has a [promissory] note against another
party containing a date [on which repayment is due], and
before the debt is due the lender comes to the beis
din and says, `I have found certain properties belonging
to the borrower and I am afraid that if he will have access
to them, he will smuggle them out of my reach, leaving me
without any means of collecting my debt.' If the
dayan sees any justification for his claim that he
will be unable to collect his debt when it is due, the
dayan must prevent the money [from being transferred]
until the debt is due."
The same applies in any situation where a beis din
considers it necessary to prevent a defendant from using his
money. This is the source of the custom of putting a lien on
the funds of a defendant even when this is not strictly
necessary. Once a statement of claim has been submitted to
it, botei din will attach the funds of a defendant
until a decision is handed down in the case, whenever they
fear that the defendant might dispose of his money,
especially if there is no danger that the defendant's
livelihood would be affected by such a lien.
The Remo, in the Shut (86) talks about a situation
where Jews put liens on each other's properties via the non-
Jewish authorities because there is no beis din in
their area. We can deduce from this Responsum that if there
is a beis din in the vicinity it is only permitted to
place a lien via the beis din.
In the Shut Maharias Engel, 94, he discusses whether
somebody who has put a lien on another's property using the
arko'os is allowed to have his case heard by a din
Torah, since the halochoh is that anybody who has
filed an action with a non-Jewish court is forbidden to have
his case heard by a din Torah (see more below on this
point). He concludes that the case of a lien has to be
distinguished from the case of somebody who has actually
sued another Jew in the arko'os, and we cannot compel
such a person to remove the lien before taking his case to a
din Torah for "although he acted incorrectly by
approaching the non-Jewish authorities instead of summoning
the defendant to appear in front of a beis din or
receiving permission from the beis din [to approach
the arko'os] still, according to the halochoh,
he need not remove the lien." The same point is made by the
Kesef Hakodshim, Ch.M. 26:1 and in the Shut
Tshuras Shay, Ch.M., 250. See also Shulchan Oruch,
Even Hoezer 91:4).
If a creditor sees that a borrower's properties are
collapsing, and he will lose his money if he waits until the
beis din hears his case because the borrower will not
have any assets left to pay his debt with, the creditor may
put a lien on the borrower's property at the arko'os,
"since, because of our many sins, the Jews have become
helpless, and many people dispose of their properties, with
the result that creditors may be unwilling to lend money."
(Shut Rama Mipano, 51, Kesef Hakodshim, end of
siman 4, Divrei Geonim, Klal 80, and the
Maharsham, vol. 3, 58). See also the Shut Teshuvos
Vehanhogos of Rav Moshe Sternbuch, vol. 2, 703 and vol. 3,
440, as well as Shut Vayan Dovid, Ch.M. 207).
Giving Testimony in a non-Jewish Court
In Shaar Mishpot, Ch.M., 53, it is brought down that
some say that if there is a case between two Jews in a non-
Jewish court (even if the beis din has permitted the
case to be taken to the arko'os), it's best for a Jew
to avoid giving testimony in front of the non-Jewish court.
However the Shaar Hamishpot differs and states that a person
is certainly duty bound to testify before a non- Jewish
court if permission was received from a beis din to
have the case heard in the arko'os, because of the
din of hashovas aveidah.
Is someone who has initiated legal proceedings in a non-
Jewish court allowed to have his case heard subsequently in
a beis din?
The Remo talks about this in Ch.M. 26:1: "If somebody
took his case to the non- Jewish courts and was held liable
by them, and then applies to have his case heard by the
beis din, some say that the beis din may not
hear his case, and some say that it may, unless he has
caused a loss to the other party by having taken his case to
the non-Jewish court. The first opinion seems to be the one
to adopt." (See Shut Tashbetz, vol. 3, 68 and
Divrei Geonim, Klal 52:5).
Does the Remo's ruling about preferring the first opinion
only apply to a case where a plaintiff in a suit before a
non-Jewish court who lost his case wants to now seek redress
from the beis din, because once he has transgressed
by taking his case to the non-Jewish court, he should not be
allowed to have his case heard by the beis din, or
does it also apply to a situation where a defendant in a non-
Jewish court has been held liable to pay or perform
something, and he now wishes to sue the plaintiff in a
din Torah, claiming that the non-Jewish court's
judgment is contrary to halochoh, and that he was
forced to defend himself in the arko'os against his
will?
In Shut Bircas Shlomo (Ch.M. 5), the author, citing
the Maharsham and the Tashbetz, rules that even in the case
of a defendant, the beis din may not hear his case,
because he had the opportunity of summoning the plaintiff to
a din Torah, but instead went with him to the
arko'os and therefore has only himself to blame. He
cannot now summon the plaintiff to a din Torah,
because he lost his right to do this when he failed to
summon him to the beis din straight away, preferring
to go through the whole hearing in the non-Jewish court and
only turning to the beis din after he lost the case
in the arko'os. However, in the Chiddushei Haflo'o
(Ch.M. 26) it is implied that a defendant may
subsequently sue the plaintiff in the beis din.
May One Call in the Police?
HaRav Eliashiv was asked the following question: "In our
town, Ashdod, sums of money have been stolen several times
from a public cash-box. Everything points towards one of our
people being the culprit, but we do not have the means to
get him to confess. Is it permitted to turn to the police,
which would, if its investigations are successful, result in
the suspect standing trial in front of the secular court?
This could have serious ramifications: the suspect may be
the head of a large family. Moreover, if he works in a
religious field there could also be a chilul Hashem,
R"l. On the other hand, it could be that public funds
are disappearing and who knows what else?"
This is HaRav Eliashiv's answer (dated motzei Shabbos,
parshas Terumoh 5731 and addressed to Rav Sinai
Adler):
"See Shut Ponim Meiros (Vol.2, 155): somebody found
that his money-box had been broken into and a lot of money
stolen from it. He had proof that one of his servants was
the culprit, and wanted to know if it was permitted to hand
the matter over to the non-Jewish authorities. The Ponim
Meiros proves from Bovo Basro 167 and Bovo
Metzia 25 that it is a mitzva for a dayan to beat
and chastise him as much as he considers necessary until he
confesses. He brings an incident involving Rav Heshel and
the Shach. However, in the end he concludes like this: `I
have grave doubts about whether he should be handed over to
the non- Jewish authorities, for Chazal have already said,
"We must be wary lest they sentence him to death if he
confesses." ' Since this reason does not apply in our times,
it would be permitted according to halocho to turn to
the police. However, you write that this might lead to a
chillul Hashem, and I am unable to express an opinion
on this, since I am not familiar with the details of the
case, and you must therefore use your discretion on this
matter.
I remain your friend,
Yosef Sholom Eliashiv.
Rav Elyakum Devorkes is the rav of Pisgat Zeev.
