SELECTED HALACHOS RELATING TO PARSHAS SHEMOS

IS A JEW ALLOWED TO BRING HIS CASE AGAINST ANOTHER JEW BEFORE A SECULAR COURT?
Part 2

WHEN IS IT PERMITTED TO GO TO A SECULAR COURT?

Under certain circumstances it is permitted for TWO JEWS to use the secular court system. Obviously, it is permitted to defend oneself in court even if the claimant was wrong in bringing his case to a secular court in the first place. But there are situations when it is even permitted to prosecute another Jew in a secular court.

Shulchan Aruch rules that if the defendant is a "rough" person who will not abide by beis din's ruling, one may prosecute him in court, provided that he has permission to do so from beis din.(1) The procedure is as follows: Beis din summons the defendant to appear before it.(2) If beis din feels that the defendant is purposely ignoring its summons,(3) or if the defendant defiantly rejects its summons, beis din may then grant the claimant permission to prosecute(4) the defendant in court.(5) [Permission may be granted, when needed, by any informed beis din, not only by the one whose summons was ignored or rejected.(6)]

Sometimes it is even permitted to use the court system without first securing permission from a beis din. This applies to situations when the court system is being used not to adjudicate a dispute but rather to enforce the collection of an undisputed claim.

The following actions, for example, do not need explicit permission from a beis din. [It is recommended, however, to review the exact case and all pertinent details with one's rabbi, since there may be facts which could be overlooked.] It is permitted to:
Request(7) of a secular court to enforce a beis din's ruling which is not being adhered to.(8) Indeed, a document called shtar berurin, which is a formal arbitration agreement, is available at any beis din. In most states, the court system will accept a shtar berurin as a binding agreement and will enforce its findings.(9)
Ask a court to issue a temporary injunction against a defendant's assets so that the litigants have a chance to prepare and present their dispute to beis din. This is permitted only if there is a reasonable chance that a loss will occur if an injunction is not issued.(10)
Certify in court that an undisputed loan document is overdue and has not been repaid; petition a secular court to force payment from an admitted debtor who despite having available funds avoids or delays payment.(11) Engage the services of a collection agency to collect a debt which is not in dispute, yet is not being paid.
Complain to the housing court that rent is overdue, when there are no issues to be decided and the renter admits to his debt, etc.

FOOTNOTES:

1 C.M. 26:2. In this case, any expenses incurred by the claimant in prosecuting in secular court are to be borne by the defendant; Rama C.M. 14:5.

2 It is customary to summon a defendant three times to beis din before permission is granted to enjoin a secular court. [See, however, Gilyonei ha-Shas on Bava Kamma 92b, that this is not required.] The exact procedure of the summonsing process, including the manner, frequency and style of the summons, depends on the rulings and customs of each individual beis din and each individual case. [See Igros Moshe C.M. 2:6 who rules that beis din is not necessarily required to detail the particulars of the accusation when sending a summons to the defendant.]

3 In certain cases, when it is obvious to beis din that the defendant will not appear before it or any other beis din, they may opt to skip the summons entirely; Minchas Yitzchak 9:155.

4 This is permitted even if the defendant will now suffer great financial loss or place himself in physical danger; see Mishpatei Shmuel 94 and 114 and Kesef ha-Kadashim 26:2. See also Kenesses ha-Gedolah 26:2; Divrei Chayim C.M. 2:9; Teshuvos V'hanhagos 3:438.

5 Beis din, however, should give permission to prosecute in court only if it believes that the claimant has a solid case against the defendant; see Aruch ha-Shulchan C.M. 26:2 and Imrei Binah C.M. 26.

6 Teshuvos Maharil Diskin (page 92). Many poskim maintain that the community rabbi alone, even without the authority of a formal beis din, can authorize prosecution in secular court; see Betzeil ha-Chachmah 4:37.

7 Indeed, not only is this permitted, but it is a mitzvah to do so, since this demonstrates that there are methods with which to enforce beis din's ruling; Harav B.Y. Wosner (Divrei Mishpat, vol. 3, pg. 200).

8 Maharsham 1:89; 3:195; 4:105; Ha-Elef Lecha Shelomo C.M. 3. See also Emes L'yaakov C.M. 26:1.

9 For a legal review of this subject, see Chaim Dovid Zwiebel, The Jewish Observer, January 1993, and Shlomo Chaim Resnicoff, The Jewish Observer, October 1999.

10 Kenesses Ha-Gedolah 73 (Bais Yosef 47).

11 Kesef ha-Kadashim 26:2; Maharsham 1:89.

Weekly-Halacha, Copyright © 2002 by Rabbi Neustadt, Dr. Jeffrey Gross and Project Genesis, Inc.

Rabbi Neustadt is the principal of Yavne Teachers' College in Cleveland, Ohio. He is also the Magid Shiur of a daily Mishna Berurah class at Congregation Shomre Shabbos.

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