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26 Adar 5761 - March 21, 2001 | Mordecai Plaut, director Published Weekly








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Opinion & Comment
The Prohibition of Legal Actions in Non-halachic Courts (Arko'os)

by Rav Elyakum Devorkes

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.


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.

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