Everyone hopes to manage his business relationships without
ever resorting to litigation. Someone involved in a
"misunderstanding" tries to discuss the matter with the other
party and if the matter remains unresolved, he tries
discussing it under the guidance of a third party, possibly a
rov.
However, what happens if someone tried all this and the
problem remains unresolved? For such situations, the Torah
commands us to establish botei din.
Two kinds of botei din are used. The parties either
bring their litigation to an existent beis din or they
create an ad hoc beis din using a system called
zabla. Zabla is an acronym for zeh borer lo
echod, which means that each party chooses one of the
dayanim who will judge the case, and then the two
chosen dayanim choose a third person to join them and
form a beis din.
In both approaches, the two parties of course agree to be
bound completely by the decision of the beis din that
they use.
The gemora (Gittin 88b) teaches that a Jew is
forbidden to submit his litigation against a fellow Jew to a
secular court, even if both parties agree (Ramban, beginning
of Parshas Mishpotim). This is known as the
prohibition against using Arko'os. Using court systems
not sanctioned by the Torah is a chilul Hashem, since
it is an implied denial of Hashem and His Torah (Midrash
Tanchuma, Mishpotim #3). Because the Torah created a
system of courts, and it is at the very core of the Torah's
prescription for human society, someone who uses a non-Torah
source for litigation acts as if denying the authenticity of
the Torah, chas vesholom, and the authority of He who
commanded us to set up Torah courts.
In the words of the Rambam, "Whoever has his case judged by
non-Jewish laws or courts, even if their laws are the same
(as the Torah's), is a rosho. It is as if he
blasphemed and raised his hand against the Torah of Moshe
Rabbenu" (Hilchos Sanhedrin 26:7). (See also Rashi's
comments on Shemos 21:1).
Someone who brought litigation to a secular court is thereby
invalidated from being a chazan for Yomim
Noraim (Mishnah Berurah 53:82). In addition, he
will likely end up with property that is not his according to
halacha, since the ruling of the non-Torah court may be
different from the Torah ruling, and thus he would transgress
the violation of gezel.
What if the Other Party Refuses to Go to Beis Din?
This problem is unfortunately neither uncommon nor recent,
and apparently occurred even at the time of the gemora
(see Bava Kama 92b, as explained by Rosh). The
halachically correct procedure is as follows: The plaintiff
files with a beis din that summons the defendant to
appear in beis din. If the defendant fails to appear
in beis din or indicates that he will not appear, the
beis din authorizes the plaintiff to bring his suit to
secular court (Choshen Mishpat 26:2).
In this way, the plaintiff has not violated the prohibition
of going to civil courts since his suit was authorized by
beis din. Rav Sherira Gaon notes that in his community
the custom was to summon the defendant three times before
authorizing the plaintiff to sue in secular court (cited by
Beis Yosef and Sma to Choshen Mishpat,
Chapter 26), and this is the usual practice.
It should be noted that even if someone gets authorization to
go to secular court, he is still not entitled to more than he
would have been entitled according to halacha. Therefore he
should ask a posek how much he is permitted to
keep.
What Happens if I am Summoned to Beis Din?
The answer is very simple: Respond to the summons. A person
who receives a notification summoning him to beis din,
is halachically obligated to respond. In the vast majority of
cases, he has the right to request that the case be heard in
a different beis din where he may feel more
comfortable. He can also request that the matter be decided
via zabla.
Secular Courts if the Judges are not Idolaters
It is forbidden to go to any secular court and there is the
same chilul Hashem every time one goes to a court that
does not recognize Torah as its law system (see for
example, Tashbeitz 2:290; Chazon Ish,
Sanhedrin 15:4). The key factor is not if it is based
on avodoh zora but that it is not based on Torah.
A Secular Court where the Judge is Jewish
The Chazon Ish writes: "There is no difference in halochoh
between going to judges who are not Jewish 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, vain system. Even if the city
residents have accepted this court's system and authority,
their agreement has no validity. To force someone to follow
this system has the status of stealing from them and raising
one's hand against the Torah given to us by Moshe Rabbenu"
(Chazon Ish, Sanhedrin 15:4). The identical ruling was
issued by HaRav Tzvi Pesach Frank and others (see Shut
Tzitz Eliezer 12:82).
Dina Demalchusa Dina
Dina demalchusa dina requires us to obey rules of the
government such as paying taxes and obeying traffic and
safety regulations, and prohibits us from smuggling and
counterfeiting and the like. Dina demalchusa dina does
not replace the civil laws of the Torah (the laws of
Choshen Mishpat) that govern the relationships between
Jews, nor does it supplant the responsibility incumbent upon
the Jew to bring his litigation to a proper beis
din.
Dina demalchusa dina should not be confused with the
following. In some areas of halacha, particularly the
contract law rules for buying and hiring, there is a concept
of minhag hamokom -- normative business practice
determines what is accepted, even in halochoh. For this
reason, the halochos of sales and employee rights are often
governed by what is accepted, normal practice. Since normal
practice is heavily influenced by secular law, the halachic
practice in these areas is influenced by the secular law.
This is not because halochoh recognizes secular law, but
because accepted business practice is influenced by secular
law.
However, there will always be interpretations, questions of
applicability, and various other halochoh considerations that
must be done via beis din. Beis din will take
into account when and how to apply the rules of dina
demalchusa dina.
It should be noted that areas of halochoh such as laws of
inheritance are not affected by secular law at all (Shut
Rashba quoted in Beis Yosef, Choshen Mishpat end
of Chapter 26).
A Lawsuit in Civil Court on Behalf of a Jewish
Client
This is unfortunately very common. A Jewish lawyer represents
a Jewish client who has litigation against another Jewish
client. May the lawyer file a lawsuit in secular court if his
client wishes to do so, even without getting permission from
beis din?
HaRav Pesach Frank ruled that it is absolutely prohibited for
a lawyer to file suit in secular court, and that it is a
tremendous chilul Hashem to do so.
This situation provides the lawyer with a tremendous
opportunity for a kiddush Hashem. He can explain to
his not-yet-observant client the advantages of going to
beis din -- that it is less expensive and usually far
more efficient. Most frum communities have botei
din where a din Torah can be arranged within
days.
Of course, to an observant Jew, the only selling point
necessary is that this is what Hashem wants us to do.
Certainly, the reward for proceeding in line with halochoh is
infinitely greater than anything gained by going against
halochoh. However, since the nonobservant client may not
appreciate this, the lawyer may convince his client by
pointing out advantages of going to beis din that the
client understands.
If the defendant fails to respond to the summons of the
din Torah, then the beis din will authorize the
plaintiff and his lawyer to take the case to secular court.
This action will be permitted because it was authorized by
the beis din, as we explained before.
What if there is Concern that the Loser will not Obey the
Ruling of Beis Din?
Beis din proceedings can be made binding on the
parties, using an arbitration agreement that is recognized in
civil law. Once the parties agree to use beis din for
their arbitration, if one party subsequently fails to honor
the psak of the beis din, it can be enforced through
the secular authorities if necessary. The agreement will be
binding in secular court because the litigants accepted the
authority of the beis din as binding arbitration.
Testimony in Secular Court about a Case in Beis Din
It is permitted to testify in secular court about a decision
of beis din. Furthermore, it is even permitted and a
mitzvah for the dayanim of the beis din
themselves to testify in secular court regarding their
adjudication. There is an interesting discussion in
poskim whether it is a lack of kovod haTorah
for the dayanim to testify as witnesses in a secular
court. The Chasam Sofer permits it as long as the secular
court is honest (Shut Chasam Sofer, Choshen Mishpat
#3).
Defending Oneself in Secular Court
If someone is sued in secular court, it is a mitzvah to
defend his case to the best of one's ability, since the suing
party violated halochoh by suing in civil court.
A Non-Jewish Defendant
A Jew is permitted to sue a non-Jew in secular court.
Therefore, a lawyer can represent a Jew in his suit against
the non-Jew.
A Secular Arbitration Board
If beis din has authorized the matter to be brought
before a secular court, then it is permitted to submit the
matter to a secular arbitration board as well.
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. The Shach
22:15 and Oruch 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, whereas Nesivos
HaMishpat prohibits even this. A simpler solution is to
summon the defendant to beis din and get permission to
adjudicate the matter through a secular court or arbitration
board.
Unfortunately, even some observant people sometimes assume
that legal rights and responsibilities are governed by
secular law. A Torah Jew must realize that Hashem's Torah is
all-encompassing, and that every aspect of his life is
directed by Torah.
The above material is only intended as a brief, non-
authoritative survey so that readers will be aware of the
issues. In any case of doubt, competent rabbinical advice
should be sought.
