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18 Av 5764 - August 5, 2004 | Mordecai Plaut, director Published Weekly









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Opinion & Comment
Civil Litigation for the Halachic Jew

by Rabbi Yirmiyohu Kaganoff

Everyone hopes to manage his business relationships without ever resorting to litigation. Someone involved in a "misunderstanding" tries to discuss the matter with the other party and if the matter remains unresolved, he tries discussing it under the guidance of a third party, possibly a rov.

However, what happens if someone tried all this and the problem remains unresolved? For such situations, the Torah commands us to establish botei din.

Two kinds of botei din are used. The parties either bring their litigation to an existent beis din or they create an ad hoc beis din using a system called zabla. Zabla is an acronym for zeh borer lo echod, which means that each party chooses one of the dayanim who will judge the case, and then the two chosen dayanim choose a third person to join them and form a beis din.

In both approaches, the two parties of course agree to be bound completely by the decision of the beis din that they use.

The gemora (Gittin 88b) teaches that a Jew is forbidden to submit his litigation against a fellow Jew to a secular court, even if both parties agree (Ramban, beginning of Parshas Mishpotim). This is known as the prohibition against using Arko'os. Using court systems not sanctioned by the Torah is a chilul Hashem, since it is an implied denial of Hashem and His Torah (Midrash Tanchuma, Mishpotim #3). Because the Torah created a system of courts, and it is at the very core of the Torah's prescription for human society, someone who uses a non-Torah source for litigation acts as if denying the authenticity of the Torah, chas vesholom, and the authority of He who commanded us to set up Torah courts.

In the words of the Rambam, "Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah's), is a rosho. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbenu" (Hilchos Sanhedrin 26:7). (See also Rashi's comments on Shemos 21:1).

Someone who brought litigation to a secular court is thereby invalidated from being a chazan for Yomim Noraim (Mishnah Berurah 53:82). In addition, he will likely end up with property that is not his according to halacha, since the ruling of the non-Torah court may be different from the Torah ruling, and thus he would transgress the violation of gezel.

What if the Other Party Refuses to Go to Beis Din?

This problem is unfortunately neither uncommon nor recent, and apparently occurred even at the time of the gemora (see Bava Kama 92b, as explained by Rosh). The halachically correct procedure is as follows: The plaintiff files with a beis din that summons the defendant to appear in beis din. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to bring his suit to secular court (Choshen Mishpat 26:2).

In this way, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din. Rav Sherira Gaon notes that in his community the custom was to summon the defendant three times before authorizing the plaintiff to sue in secular court (cited by Beis Yosef and Sma to Choshen Mishpat, Chapter 26), and this is the usual practice.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to more than he would have been entitled according to halacha. Therefore he should ask a posek how much he is permitted to keep.

What Happens if I am Summoned to Beis Din?

The answer is very simple: Respond to the summons. A person who receives a notification summoning him to beis din, is halachically obligated to respond. In the vast majority of cases, he has the right to request that the case be heard in a different beis din where he may feel more comfortable. He can also request that the matter be decided via zabla.

Secular Courts if the Judges are not Idolaters

It is forbidden to go to any secular court and there is the same chilul Hashem every time one goes to a court that does not recognize Torah as its law system (see for example, Tashbeitz 2:290; Chazon Ish, Sanhedrin 15:4). The key factor is not if it is based on avodoh zora but that it is not based on Torah.

A Secular Court where the Judge is Jewish

The Chazon Ish writes: "There is no difference in halochoh between going to judges who are not Jewish and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, vain system. Even if the city residents have accepted this court's system and authority, their agreement has no validity. To force someone to follow this system has the status of stealing from them and raising one's hand against the Torah given to us by Moshe Rabbenu" (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by HaRav Tzvi Pesach Frank and others (see Shut Tzitz Eliezer 12:82).

Dina Demalchusa Dina

Dina demalchusa dina requires us to obey rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting and the like. Dina demalchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews, nor does it supplant the responsibility incumbent upon the Jew to bring his litigation to a proper beis din.

Dina demalchusa dina should not be confused with the following. In some areas of halacha, particularly the contract law rules for buying and hiring, there is a concept of minhag hamokom -- normative business practice determines what is accepted, even in halochoh. For this reason, the halochos of sales and employee rights are often governed by what is accepted, normal practice. Since normal practice is heavily influenced by secular law, the halachic practice in these areas is influenced by the secular law. This is not because halochoh recognizes secular law, but because accepted business practice is influenced by secular law.

However, there will always be interpretations, questions of applicability, and various other halochoh considerations that must be done via beis din. Beis din will take into account when and how to apply the rules of dina demalchusa dina.

It should be noted that areas of halochoh such as laws of inheritance are not affected by secular law at all (Shut Rashba quoted in Beis Yosef, Choshen Mishpat end of Chapter 26).

A Lawsuit in Civil Court on Behalf of a Jewish Client

This is unfortunately very common. A Jewish lawyer represents a Jewish client who has litigation against another Jewish client. May the lawyer file a lawsuit in secular court if his client wishes to do so, even without getting permission from beis din?

HaRav Pesach Frank ruled that it is absolutely prohibited for a lawyer to file suit in secular court, and that it is a tremendous chilul Hashem to do so.

This situation provides the lawyer with a tremendous opportunity for a kiddush Hashem. He can explain to his not-yet-observant client the advantages of going to beis din -- that it is less expensive and usually far more efficient. Most frum communities have botei din where a din Torah can be arranged within days.

Of course, to an observant Jew, the only selling point necessary is that this is what Hashem wants us to do. Certainly, the reward for proceeding in line with halochoh is infinitely greater than anything gained by going against halochoh. However, since the nonobservant client may not appreciate this, the lawyer may convince his client by pointing out advantages of going to beis din that the client understands.

If the defendant fails to respond to the summons of the din Torah, then the beis din will authorize the plaintiff and his lawyer to take the case to secular court. This action will be permitted because it was authorized by the beis din, as we explained before.

What if there is Concern that the Loser will not Obey the Ruling of Beis Din?

Beis din proceedings can be made binding on the parties, using an arbitration agreement that is recognized in civil law. Once the parties agree to use beis din for their arbitration, if one party subsequently fails to honor the psak of the beis din, it can be enforced through the secular authorities if necessary. The agreement will be binding in secular court because the litigants accepted the authority of the beis din as binding arbitration.

Testimony in Secular Court about a Case in Beis Din

It is permitted to testify in secular court about a decision of beis din. Furthermore, it is even permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is an interesting discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The Chasam Sofer permits it as long as the secular court is honest (Shut Chasam Sofer, Choshen Mishpat #3).

Defending Oneself in Secular Court

If someone is sued in secular court, it is a mitzvah to defend his case to the best of one's ability, since the suing party violated halochoh by suing in civil court.

A Non-Jewish Defendant

A Jew is permitted to sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against the non-Jew.

A Secular Arbitration Board

If beis din has authorized the matter to be brought before a secular court, then it is permitted to submit the matter to a secular arbitration board as well.

There is a dispute among poskim whether one is permitted to submit a case to a non-Jewish arbitration board without authorization from beis din. The Shach 22:15 and Oruch HaShulchan 22:8 permit this if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law, whereas Nesivos HaMishpat prohibits even this. A simpler solution is to summon the defendant to beis din and get permission to adjudicate the matter through a secular court or arbitration board.

Unfortunately, even some observant people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that Hashem's Torah is all-encompassing, and that every aspect of his life is directed by Torah.

The above material is only intended as a brief, non- authoritative survey so that readers will be aware of the issues. In any case of doubt, competent rabbinical advice should be sought.

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