How Does a Jew Litigate?

 

clip_image002Mendel Greenberg has been unable to resolve a matter with one of his suppliers. He has attempted to discuss the matter with him, but the last time he tried, the phone was abruptly slammed down. To his chagrin, Mendel realizes that he has no choice but to sue the supplier. Not knowing how to proceed, he makes an appointment with his rav to discuss what to do.

PROHIBITION OF USING NON-HALACHIC COURTS

After Mendel finishes explaining his predicament, his rav explains that it is absolutely forbidden for a Jew to submit litigation against a fellow Jew in a secular court, even if both parties agree (Gemara Gittin 88b; Rashi and Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os, or non-halachic courts. When a person chooses a civil court for one’s litigation instead of the Torah’s system, one implies that one does not believe that the system set up by Hashem is the best one. According to the Midrash, this is a chillul Hashem (Midrash Tanchuma, Mishpatim #3).

Unfortunately, even frum people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that every aspect of life is directed by Torah – including how one litigates. The true believer in Hashem understands that the only procedures to be followed are those sanctioned by the Torah.

In addition to the severe prohibition against using arka’os, someone who submits litigation to civil court will probably end up stealing by receiving money to which one is not entitled, according to halacha. The fact that a court ruled in the plaintiff’s favor, or that the defendant chose to settle rather than contest the court case, does not permit taking ill-gained money.

“I am well aware of the problem,” says Mendel to his rav. “I personally know frum people who use the civil courts to resolve their matters.”

“Every generation has its nisyonos, its tests, of its resolve to observe Torah,” his rav sighs. “In our grandparents’ generation, it was Shabbos. During our parents’ generation, there were many difficult issues such as tznius, shatnez and proper standards of kashrus. In our generation, I find that one of the weakest areas of proper mitzvah observance is the usage of civil courts.

“Let me share a very recent incident with you,” the rav continued. “Someone hired a frum lawyer to resolve a legal problem. I discovered that the lawyer had filed a lawsuit in civil court. ‘Which rav has permitted filing a civil lawsuit?’ I asked the plaintiff. It turned out that the plaintiff was totally unaware that there was any halachic issue, and had relied on the halachic know-how of the lawyer! I explained the severity of the prohibition involved, and the matter was transferred to a beis din.

“Look how serious this prohibition is,” said the rav, pulling a sefer off the shelf. “Listen to this Rambam: ‘Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu’” (Hilchos Sanhedrin 26:7).

GOING TO JEWISH JUDGES

“Are Israelis allowed to use their civil courts that employ Jewish judges?” asked Mendel.

The rav pulled another sefer off his bookshelf and began reading the following passage from a sefer of the Chazon Ish:

“‘There is no halachic difference between going to gentile judges 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, empty system. Even if the city residents have accepted this court’s system and authority, their acquiescence has no validity. To force someone to follow this system has the status of stealing from them and of raising one’s hand against the Torah given to us by Moshe Rabbeinu’ (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Tzvi Pesach Frank and Rav Yitzchak Herzog.” (See Shu”t Tzitz Eliezer 12:82.

DINA DI’MALCHUSA DINA

“I have often heard that dina di’malchusa dina (secular civil law) determines halacha in business matters; isn’t it so here?” Mendel inquired.

Realizing that Mendel was not questioning his authority, but simply attempting to clarify this confusing issue, his rav gave him a patient reply.

“What you’ve just quoted is an incorrect understanding of dina di’malchusa dina,” he began. “Dina di’malchusa dina requires obeying rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. But it does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern relationships between Jews, nor does it supplant the Jew’s responsibility to bring his litigation before a proper beis din.”

“I must say,” continued the rav sadly, “that I find it peculiar that often the same person who quotes dina di’malchusa dina when it does not apply, happily ignores it where it does apply. Interpreting business halachos conveniently without checking it out with a rav is another example of an unfortunate weakness prevalent in our generation.

“But please let me clarify one point,” the rav continued. “When I say that dina di’malchusa dina does not apply in litigation, this should not be confused with the similar concept of minhag hamakom.

“Certain areas of halacha, such as the contract laws for buying and hiring, are governed by the concept of minhag hamakom – that normative business practice determines what is halachically accepted. When a person agrees to a contract, both parties assume that they will be following what is normally done, unless it is specified otherwise. For this reason, the halacha regarding sales and employee rights is often governed by accepted practice. And since normal practice is influenced by civil law, these areas of halacha are influenced by civil law. This is not because halacha recognizes civil law, but because of the influence civil law has on business practice.

“However,” the rav concluded, “it should be noted that certain areas of halacha, such as laws of inheritance, are not affected by secular law at all” (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26).

“How should I begin the litigation I came here to discuss?” asked Mendel.

TWO KINDS OF BATEI DIN

“There are two kinds of batei din,” replied his rav. “An established beis din or an ad hoc beis din known as ‘zabla.’ Zabla is the acronym for ‘zeh borer lo echod,’ because each party chooses one of the dayanim (judges) who will judge the case, and then those two dayanim choose a third person to join them and form a beis din.”

Mendel realizes that zabla will probably not benefit him, since it is doubtful that the supplier will willingly submit to arbitration of any type. Therefore, he asks his rav how he proceeds to apply for a beis din to hear his case. The rav refers him to the mazkir, the bailiff or representative, of a nearby beis din. The mazkir issues a summons to the supplier to appear before a beis din.

“What do I do if the supplier comes to beis din and then refuses to obey the decision?” Mendel asked the mazkir.

“Every beis din insists that the litigating parties agree to be bound completely by the decision of the beis din they use,” explained the mazkir. “In addition, beis din proceedings are binding in civil law as arbitration agreements. This means that once the parties sign an agreement submitting their litigation to beis din for arbitration, the civil court will uphold the beis din’s decision. If one party subsequently fails to honor the psak of the beis din, the beis din will authorize the use of secular authorities, if necessary, to enforce its ruling.”

Ultimately, the supplier ignored the summons to appear before the beis din, a serious halachic offence in its own right. Halacha requires a Jew to respond to a summons to appear before a beis din. The fact that it is an unpleasant experience is no excuse for not responding.

In the vast majority of cases, the defendant has the right to request that the case be heard in a different beis din or to request that the matter be decided through zabla. However, he is responsible to convey this intent to the mazkir beis din.

WHAT IF THE DEFENDANT REFUSES TO GO TO BEIS DIN?

What does Mendel do? Unfortunately, Mendel’s situation is neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the required procedure is to file the case with a beis din. The beis din summons the defendant to appear. If the defendant fails to appear or indicates that he will not appear, the beis din authorizes the plaintiff to sue in secular court (Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din.

The usual practice is to issue a summons to the defendant three times before authorizing the plaintiff to sue in secular court (Beis Yosef and Sma to Choshen Mishpat, Chapter 26, citing Rav Sherira Gaon). However, it should be noted that this is the prerogative of the beis din. If the beis din feels that the defendant will not heed an additional summons, they may authorize the plaintiff to sue in civil court after receiving just one rejection. Sometimes, the beis din’s representative might simply phone the defendant to find out if he will honor beis din’s summons.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to receive more in the settlement or ruling than he is entitled to according to halacha. Therefore, he should ask a posek how much of the award he is permitted to keep.

WHAT HAPPENED TO MENDEL GREENBERG?

Unfortunately, the supplier did not respond to the summons of the beis din, so the beis din signed a document authorizing Mendel to take his case to civil court. As noted above, going to civil court under these circumstances is permitted once authorized by beis din. Mendel has not made a chillul Hashem since he has demonstrated his desire to have his case adjudicated according to halacha. Here, it is the supplier who refused to be bound by beis din’s authority and has demonstrated his contempt for beis din, halacha and Hashem’s Torah, thereby creating a chillul Hashem.

Mendel chose an attorney he knew from shul to represent his case. When he met with the attorney, he explained all that he had learned about the prohibition against going to arka’os. The attorney himself was aware of Rashi’s statement that it is a tremendous desecration of Hashem’s presence to use civil courts. However, he had assumed that it only referred to courts of idol worshippers.

Now Mendel felt confident that he could convey some of his newly gained knowledge. “My rav told me that it is forbidden to use any secular court, and that a chillul Hashem is involved every time one goes to a court that does not recognize Torah as its law system.”

The lawyer suddenly realized that he had many shaylos of his own.

MAY A LAWYER FILE A LAWSUIT IN CIVIL COURT ON BEHALF OF A JEWISH CLIENT?

This is unfortunately a very common shaylah. A Jewish lawyer representing a Jewish client sues another Jewish client in civil court. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that this is absolutely prohibited and that it is a major chillul Hashem to do so.

However, this situation provides the lawyer with a great opportunity to perform a kiddush Hashem. He can explain the advantages of going to beis din to his not-yet-observant client. Firstly, it is far less expensive and usually far more efficient, since most frum communities have batei din where a din torah can be arranged within days.

Of course, an observant Jew should not have to be told extraneous reasons why it is beneficial to go to beis din. For one, the only salient point should be that this is what Hashem wants one to do. Certainly, the reward for following halacha is infinitely greater than anything gained by violating halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince the client in a way the client will understand.

MAY ONE TESTIFY IN SECULAR COURT ABOUT A CASE THAT WAS ALREADY DECIDED IN BEIS DIN?

Yes, it is permitted to do. Furthermore, it is permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is a discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The conclusion is that it is not considered a lack of kovod haTorah as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

MAY A LAWYER DEFEND A CLIENT IN CIVIL COURT, OR DOES THIS REQUIRE AUTHORIZATION FROM BEIS DIN?

If a Jew is sued in secular court, it is a mitzvah to defend one to the best of one’s ability, since the plaintiff violated halacha by suing in civil court. There is no need to get authorization from beis din.

IS IT PERMITTED TO SUE A NON-JEW IN CIVIL COURT?

A non-Jew is not required to submit his litigation to beis din. For this reason, a Jew may sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against a non-Jew.

MAY LITIGATION BE SUBMITTED TO A NON-JEWISH ARBITRATION BOARD?

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. It seems that Shach (Choshen Mishpat 22:15) and Aruch 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. The Nesivos HaMishpat prohibits using a non-Jewish arbitrator, even in such a circumstance.

Although suing in arka’os is strictly prohibited unless authorized by beis din, Shach and Aruch HaShulchan contend that there is a halachic difference between arbitration that bases its decisions on common sense and a sense of fairness rather than a system of law. In their opinion, arka’os is prohibited because one is substituting a different legal system and procedure for the Torah’s system. However, common sense arbitration is not viewed by anyone as a legal system, but simply as a practical, fair way of resolving conflicts. The Nesivos HaMishpat disagrees, contending that using any system not set up by the Torah constitutes the violation of using arka’os.

In practice, to circumvent this machlokes haposkim, one should summon the defendant to beis din. If he refuses to accept beis din’s authority, the beis din’s permission allows one to submit the matter to an arbitration board as well as a civil court.

WHAT SHOULD A PLAINTIFF DO IF HE LIVES FAR FROM A BEIS DIN?

The mazkir beis din can telephone the defendant explaining that the case must be adjudicated by a beis din. If the defendant accepts this, then the beis din will attempt to facilitate the creation of an ad hoc beis din, similar to a zabla, formed from the most qualified individuals available locally. Under these circumstances, a shaylah should be asked whether one should submit the case to an arbitration board. If the defendant refuses to accept beis din’s authority, beis din will authorize that the case be brought to civil court.

Every profession requires its special halachic expertise. The mortgage broker must be familiar with the laws of ribbis, the psychologist with the laws of loshon hora and the businessman with the laws of ona’ah.. And all of them must remember the rules of avoiding arka’os and taking their litigation to batei din.

The pasuk states, “VaYehi David oseh mishpat utzedakah lichol amo,” “And David performed justice and kindness for all his people” (Shmuel II 8:15). The Gemara (Sanhedrin 6b) comments that this pasuk says something unusual. Justice and kindness are opposites.. If David performed justice, then seemingly he was not performing kindness.

The Gemara answers that a just decree resolving a din Torah performs both justice and kindness; justice for the plaintiff who receives his award, and kindness for the defendant by protecting him against the violation of holding onto stolen property. Thus, by ruling against the defendant, beis din is performing an act of compassion by protecting him from transgression. Careful attention to the rules regarding batei din will stand a person in good stead by guaranteeing that his life is always surrounded by kindness.

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