SELECTED HALACHOS RELATING TO PARSHAS VAYECHI

BEIS DIN AND SECULAR COURT?
Part 1

Whole portions of the Torah deal with financial issues and with monetary disputes that may arise between Jews. The Torah states specifically that all such altercations must be decided in accordance with Jewish law, which means that a dispute between Jews must be presented to a Jewish court, a beis din, who will adjudicate the matter in accordance with the rulings of the Shulchan Aruch and Jewish tradition.(1)

It is, therefore, a strict Torah prohibition for a Jew to use the secular(2) court system(3) in order to resolve a dispute with ANOTHER JEW.(4) To do so is a chillul Hashem, a desecration of G-d's Name, because it is tantamount to declaring publicly that their system of justice is preferable to that of the Torah.(5) Shulchan Aruch uses extremely harsh language about a person who brings his case before a secular court: he is called a rasha; it is considered as if he has blasphemed and cursed; it is as if he has "raised a hand" against the Torah of Moshe Rabbeinu.(6)

Unfortunately, many people are ignorant of the prohibition against resorting to secular courts. Some justify their laxity with the claim that there is no point in going to beis din since only secular courts have the power to enforce their judgments, or that secular courts are fairer and more efficient. Bypassing the beis din and using the secular system to adjudicate disputes between Jews is prohibited under all circumstances, EXCEPT in some of the cases listed below.

Accordingly, any monies gained by a judgment from a secular court which would not have been won under Torah law are considered stolen monies which must be returned to their owner.(7)

It is the responsibility of each Jewish community to have a functioning beis din which is available to adjudicate all matters of dispute. It is also the responsibility of the Jewish community to uphold the power of beis din and enable it to enforce its judgments. And while the executive power of beis din is, admittedly, limited so long as we remain in exile, still there are quite a few ways to make it effective even nowadays.

A possible tool that beis din can use to force an individual to appear before it is the ksav seiruv, which is a document issued by beis din stating that the individual disregarded this or any other legitimate beis din's summons(8). It is then the community's responsibility to bar such a person from religious communal life; e.g., to deny his right to be a member of any congregation, to be called to the Torah for an aliyah, to be a sheliach tzibbur, etc.(9)

Some additional points concerning the prohibition of bringing one's case before a secular court:

The prohibition against using a secular court is in effect even if both sides in the dispute agree to present their case to a secular court and abide by its ruling.(10)

The prohibition against using a secular court remains in effect even if the parties agreed(11) in advance that all potential disputes between them will be adjudicated by a secular court.(12)

The prohibition against using a secular court applies even for the purpose of using the court to force the defendant to place himself under the jurisdiction of beis din.(13)

The prohibition against using a secular court applies to the claimant as well as to the lawyer or anyone else who represents or encourages him.(14) A claimant who prosecuted another Jew in court and lost his case may not appeal to beis din.(15) But if the defendant knows or suspects that according to Torah law he is guilty, he is obligated to pay the claimant his money.(16)

Many industries have in-house arbitration panels which -based on the arbitrators' common sense and customary practice within that trade -resolve internal disputes. These panels are not considered "secular courts" and are permitted to be used.(17)

Next week: When is it permitted to go to a secular court?

FOOTNOTES:

1 Talmud, Gittin 88b.

2 It makes no difference if the secular court system is administered by non-Jews or by Jews who do not rule in accordance with Torah law and tradition, such as the secular Israeli court system; Chazon Ish, Sanhedrin 15:4; Harav T. P. Frank (written responsum quoted in Tzitz Eliezer 12:82); Yechaveh Da'as 4:65.

3 Even if the secular court intends to rule according to Torah law as its basis for judgment, it is still strictly prohibited; C.M. 26:1.

4 When redressing a dispute with a non-Jew, it is permissible to use a non-Jewish court only if the non-Jew will not accept the authority of beis din. If the non-Jew is willing to go to beis din and abide by its ruling, it is Biblically prohibited to seek judgment in a non-Jewish court; Tashbatz, vol. 4, Tur Hashlishi 6, based on Tanchuma, Shoftim 1, quoted in Divrei Geonim 52:15 and Minchas Yitzchak 9:155.

5 Rashi, Mishpatim 21:1. See also Rabbeinu Bechayei's commentary.

6 C.M. 26:1, based on Rambam, Sanhedrin 26:7.

7 Rabbi Akiva Eiger, C.M. 26:1.

8 A ksav seiruv cannot be served if the defendant rejects a particular beis din's summons with the claim that he wants the case to be presented to another beis din, even if the alternate beis din is lesser in stature or is in another city; Nesivos C.M. 26:13. For more information about this issue, see Teshuvos V'hanhagos 3:437 and Divrei Mishpat, vol. 1, pgs. 203-211.

9 See Darkei Moshe C.M. 19:1 who writes that a seiruv can go as far as to ostracize the individual so that "people should not daven with him, they should not circumcise his son, the should not bury his dead, they should remove his children from school and his wife from shul." See, however, Yam Shel Shelomo, Bava Kamma 10:13, who feels that the wife and children should not be made to suffer pain and shame on account of their husband or father.

10 C.M. 26:1, based on Ramban, Mishpatim 21:1. But it is permissible for the litigants to present their case to beis din and ask it to rule in accordance with secular laws; Divrei Chayim 2:30, quoted in Minchas Yitzchak 9:112.

11 Either verbally or contractually; either with a binding kinyan or without; C.M. 26:3-4. Even if he swore to do so, he still may not bring his case to court; Aruch ha-Shulchan 26:4.

12 C.M. 126:3. Several details concerning this issue are discussed in Teshuvos V'hanhagos 3:441 and 3:443.

13 Rama C.M. 26:1. Possibly, bringing the case to court merely to intimidate the defendant - without any intention of actually prosecuting him there - is also prohibited; see Divrei Mishpat, vol. 3, pgs. 195-197.

14 Rama C.M. 26:1. See Yechaveh Da'as 4:65.

15 Rama C.M. 26:1.

16 Nesivos C.M. 26:2; Aruch ha-Shulchan C.M. 26:1.

17 See Minchas Pittim, Sheyarei Minchah 68; Tzitz Eliezer 11:93; Divrei Mishpat, vol. 3, pgs. 187-188.

Weekly-Halacha, Copyright © 2001 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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