In the first part, HaRav Dvorkes discussed the basic
prohibition and its gravity: it implies denial of Hashem and
denial of the Torah — for petitioning a gentile court
reveals a lack of trust in the justice of the Torah's laws.
And finally, it delays the final Redemption. Even if there is
mutual agreement, one may not go to such courts.
Note that what is written here should just be considered a
substitute for asking a competent posek for guidance
about what actually to do. These short English summaries are
clearly no substitute for seeing the sources in their
original format.
To Beis Din after Court
The Rema discusses a case where someone went to a gentile
court and lost and then brought his claim against his friend
to Jewish dayanim. "Some are of the opinion that we
pay no attention to him (Maharyk, shoresh 188) and
some say that we attend to him (Mordechai, tenth perek
of Bava Kama). The first opinion seems to me to
prevail."
Quoting the author of Urim Vetumim, Nesivos Hamishpot
gives two reasons for this. First, it is similar to one of
the parties to a dispute agreeing that the testimony of an
invalid witness should be acceptable in his case. One who
consents may not withdraw his agreement after the judgment
has been made. In addition, it is a penalty for his having
gone to a gentile court (it seems that the Vilna Gaon agrees
to this in Biyur HaGra, 26:4).
ShuT Zekan Aharon (tinyono, siman 125) writes that
even according to the Maharyk, beis din will not hear
the case only if the court finished its hearing and issued a
verdict against the claimant, who now wants to take the case
to beis din. If however, the court has just started
its deliberations and the claimant wants to retract and go to
beis din, we will hear the case.
Moreover, ShuT Imrei Yosher (by Maharam Arik
zt'l,) (vol. I, siman 36) writes that even if
the court has reached a conclusion, beis din ignores
the case only if the winner intends to extract money from the
other party, or is already holding the other party's assets
on the basis of the court's decision. If though, before he
has taken anything he wants to go back and have the case
heard in beis din, we will hear it even after the
court's verdict.
If the Defendant Retracts
So much for a change in heart on the claimant's part. What
happens if the defendant wants to retract and have the case
heard by beis din?
ShuT Teshuvos Vehanhogos (vol. III, siman 443)
discusses a case where, "someone went to a gentile court and
was obligated to pay according to their laws and now he wants
to have the case heard by beis din." The author's
conclusion is that if the claimant does not keep Shabbos, or
if he transgresses other aveiros, the defendant can
use this as an alibi to explain that he assumed that the
other side would not have agreed to go to beis din and
thus mistakenly agreed to go to court. He may now take him to
beis din to prevent him from stealing [the defendant's
money unjustly]. If the claimant is a religious Jew and the
defendant did not protest his going to court and didn't ask
him to take the case to beis din, it could be that he
deserves to be penalized. In addition, he originally thought
that he'd win, which amounts to forgoing and we cannot save
money from the party that won in court when he is in
possession.
An Executive Role
The Shulchan Oruch rules, "If the gentiles are in
power and the other party is a powerful person and he cannot
extract money from him in beis din, he should first
demand that he comes before Jewish judges. If he does not
agree, the claimant can receive beis din's permission
to save what he can in a gentile court. The Oruch
Hashulchan writes that this only applies if the beis
din knows that the recalcitrant party is actually
obligated by Torah law, e.g. the claimant possesses a
document proving his claim. If beis din is unsure
whether or not he owes the money, they will not allow the
case to go before a gentile court "in case he extracts money
unjustly. [However,] they allow him to take steps that will
force the unwilling party to go to beis din ."
Quoting Knesses Hagedolah, ShuT Maharsham (vol.
I, siman 89) writes that if a case has already been
heard by a beis din, and they obligated the defendant
to pay and he is unwilling to do so, the claimant can take
him to court even without beis din's permission. The
reason is that since the debt is a clear one, because beis
din ruled that he must pay, the court is only acting as
an executor, to extract payment.
Foreclosure and Seizure
Can one go to court to have foreclosure imposed on a debtor's
property? ShuT Teshuvos Vehanhogos (vol. II,
siman 703) writes that it is permitted to apply for a
ban on a debtor's traveling abroad and to have an order of
seizure issued on his property until the creditor finds a
beis din to judge according to Torah law!
ShuT Maharam Lublin (siman 26) writes similarly
that it is permitted to go to court as long as one has no
intention of harming the other party but merely wants the
court to help him extract his own money and protect himself
from damage. (See ShuT HoRemo siman 86, quoting
Maharam MiReisbourg, who discusses a Jewish community that
impeded other Jews through gentiles because they had no
beis din. See also ShuT Maharyaz Ensil siman
94.)
Shaar Hamishpot (Choshen Mishpat siman 27) quotes from
ShuT HoRemo siman 53: "When one takes a dispute with
another Jew to court with beis din's permission,
although the parties are allowed to go, the witnesses may not
testify in a gentile court because they are abetting
transgressors." The Shaar Hamishpot disagrees and
rules that the witnesses are certainly obliged to testify in
court if the case is being heard there in accordance with
halochoh, to help the winner save his property.
If a ruling is given by beis din obligating the
defendant to pay and he does not want to comply, it seems
that it is permitted to transfer the case to the Seizure
Office (like a bailiff — Hotza'ah Lapo'el in
Israel). This is derived by HaRav Y. Grossman (in ShuT
Netzach Yisroel siman 26) from ShuT Chasam Sofer
(Choshen Mishpat siman 3) who writes, "Rav Sherira
Gaon teaches us that in fact, the honor and prestige of
Jewish dayanim is enhanced when they rule in favor of
ploni but, not having the power to save the wronged
party, they go and testify in court, `We judged ploni
liable to pay such and such . . .' [and the court upholds and
enforces their ruling]" (See ShuT Divrei Chaim of
Sanz, Choshen Mishpat siman 7, ShuT Ramatz, Choshen
Mishpat siman 6, and ShuT Sho'el Umeishiv,
Teliso'o, vol. III, siman 125.)
ShuT Maharsham writes (in vol. III, siman 195),
"In the writings of the holy gaon, the av beis
din of Buczacz zt'l, it says that where the debt
is clear and the debtor does not deny it, beis din's
permission is not necessary nowadays, but out of piety he
should receive their permission . . ."
The Source of Salvation and Healing
"Rabbi Yossi ben Elisha says, `If you see a generation
suffering from many woes, go and check the judges of Yisroel
(in case their sins are to blame) for all punishment that
comes to the world is because of the judges of Yisroel.
Hakodosh Boruch Hu does not rest His Shechinah
upon Yisroel until the bad judges and functionaries vanish
from among them' " (Shabbos 139).
"He tells His words [of Torah] to Yaakov; His statutes and
laws to Yisroel. He did not do this for any other nation;
they do not know the laws . . ." (Tehillim 147:19-
20).
Hashem promises, "I will return your judges as at first and
your counselors like at the start" (Yeshayohu 1:26).
These judges and counselors are those who judge according to
the Torah's laws. We therefore pray to Hashem three times a
day to "return our judges as at first . . . and take sorrow
and lament from away from us . . ."
Taking our disputes to gentile courts causes the
Shechinah to remove itself which results in all kinds
of misfortune befalling us, R'l. Hashem's laws are
truthful. Following them brings abundant blessing and good
life to Am Yisroel, banishing sorrow and lament.
|
Get Beis Din's Permission! A Public Letter from Gedolei
Yisroel
BS'D, 1 Iyar 5758
To distinguished Rabbonim and to all the holy community,
The severity of the prohibition against going to the courts
is clearly stated in Shulchan Oruch siman 26. "Whoever
takes a case before them is a rosho and is tantamount
to having blasphemed and having raised his hand against the
Torah of Moshe Rabbenu, o'h."
The Medrash Tanchuma (quoted in the Biyur HaGra
ibid.) states that whoever ignores Jewish dayanim
primarily denies Hakodosh Boruch Hu and then denies
the Torah (see there).
Among our many sins, despite the tremendous severity of this
sin, people do as they please. The Shulchan Oruch
states that even when the other party is powerful, one should
not go to court without receiving prior permission from
beis din.
Since there have been mishaps with regard to granting
permission to apply to the courts, we hereby state, clarify
and make known that:
1] Permission to go to court should only be given in writing,
by experienced dayanim, after investigation [yielding
results that are] as obvious as day and night and as obvious
as [the prohibition against marrying] one's sister.
2) Wherever grounds exist for appealing an arbitration ruling
given by talmidei chachomim, dayanim who are
gedolei Torah, as above, should be applied to and they
should determine whether there are grounds to allow going to
court where the other party refuses to abide by Torah law.
We sign for the sake of Hashem's true judgments
Yosef Shalom Eliashiv
Shmuel Halevi Wosner
Nissim Karelitz
|
