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1 Adar 5766 - March 1, 2006 | Mordecai Plaut, director Published Weekly










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Opinion & Comment
Raising His Hand Against Torah Moshe! Aspects of the Prohibition Against Going to Court

by Rav Elyakim Dvorkes

In the first part, HaRav Dvorkes discussed the basic prohibition and its gravity: it implies denial of Hashem and denial of the Torah — for petitioning a gentile court reveals a lack of trust in the justice of the Torah's laws. And finally, it delays the final Redemption. Even if there is mutual agreement, one may not go to such courts.

Note that what is written here should just be considered a substitute for asking a competent posek for guidance about what actually to do. These short English summaries are clearly no substitute for seeing the sources in their original format.

To Beis Din after Court

The Rema discusses a case where someone went to a gentile court and lost and then brought his claim against his friend to Jewish dayanim. "Some are of the opinion that we pay no attention to him (Maharyk, shoresh 188) and some say that we attend to him (Mordechai, tenth perek of Bava Kama). The first opinion seems to me to prevail."

Quoting the author of Urim Vetumim, Nesivos Hamishpot gives two reasons for this. First, it is similar to one of the parties to a dispute agreeing that the testimony of an invalid witness should be acceptable in his case. One who consents may not withdraw his agreement after the judgment has been made. In addition, it is a penalty for his having gone to a gentile court (it seems that the Vilna Gaon agrees to this in Biyur HaGra, 26:4).

ShuT Zekan Aharon (tinyono, siman 125) writes that even according to the Maharyk, beis din will not hear the case only if the court finished its hearing and issued a verdict against the claimant, who now wants to take the case to beis din. If however, the court has just started its deliberations and the claimant wants to retract and go to beis din, we will hear the case.

Moreover, ShuT Imrei Yosher (by Maharam Arik zt'l,) (vol. I, siman 36) writes that even if the court has reached a conclusion, beis din ignores the case only if the winner intends to extract money from the other party, or is already holding the other party's assets on the basis of the court's decision. If though, before he has taken anything he wants to go back and have the case heard in beis din, we will hear it even after the court's verdict.

If the Defendant Retracts

So much for a change in heart on the claimant's part. What happens if the defendant wants to retract and have the case heard by beis din?

ShuT Teshuvos Vehanhogos (vol. III, siman 443) discusses a case where, "someone went to a gentile court and was obligated to pay according to their laws and now he wants to have the case heard by beis din." The author's conclusion is that if the claimant does not keep Shabbos, or if he transgresses other aveiros, the defendant can use this as an alibi to explain that he assumed that the other side would not have agreed to go to beis din and thus mistakenly agreed to go to court. He may now take him to beis din to prevent him from stealing [the defendant's money unjustly]. If the claimant is a religious Jew and the defendant did not protest his going to court and didn't ask him to take the case to beis din, it could be that he deserves to be penalized. In addition, he originally thought that he'd win, which amounts to forgoing and we cannot save money from the party that won in court when he is in possession.

An Executive Role

The Shulchan Oruch rules, "If the gentiles are in power and the other party is a powerful person and he cannot extract money from him in beis din, he should first demand that he comes before Jewish judges. If he does not agree, the claimant can receive beis din's permission to save what he can in a gentile court. The Oruch Hashulchan writes that this only applies if the beis din knows that the recalcitrant party is actually obligated by Torah law, e.g. the claimant possesses a document proving his claim. If beis din is unsure whether or not he owes the money, they will not allow the case to go before a gentile court "in case he extracts money unjustly. [However,] they allow him to take steps that will force the unwilling party to go to beis din ."

Quoting Knesses Hagedolah, ShuT Maharsham (vol. I, siman 89) writes that if a case has already been heard by a beis din, and they obligated the defendant to pay and he is unwilling to do so, the claimant can take him to court even without beis din's permission. The reason is that since the debt is a clear one, because beis din ruled that he must pay, the court is only acting as an executor, to extract payment.

Foreclosure and Seizure

Can one go to court to have foreclosure imposed on a debtor's property? ShuT Teshuvos Vehanhogos (vol. II, siman 703) writes that it is permitted to apply for a ban on a debtor's traveling abroad and to have an order of seizure issued on his property until the creditor finds a beis din to judge according to Torah law!

ShuT Maharam Lublin (siman 26) writes similarly that it is permitted to go to court as long as one has no intention of harming the other party but merely wants the court to help him extract his own money and protect himself from damage. (See ShuT HoRemo siman 86, quoting Maharam MiReisbourg, who discusses a Jewish community that impeded other Jews through gentiles because they had no beis din. See also ShuT Maharyaz Ensil siman 94.)

Shaar Hamishpot (Choshen Mishpat siman 27) quotes from ShuT HoRemo siman 53: "When one takes a dispute with another Jew to court with beis din's permission, although the parties are allowed to go, the witnesses may not testify in a gentile court because they are abetting transgressors." The Shaar Hamishpot disagrees and rules that the witnesses are certainly obliged to testify in court if the case is being heard there in accordance with halochoh, to help the winner save his property.

If a ruling is given by beis din obligating the defendant to pay and he does not want to comply, it seems that it is permitted to transfer the case to the Seizure Office (like a bailiff — Hotza'ah Lapo'el in Israel). This is derived by HaRav Y. Grossman (in ShuT Netzach Yisroel siman 26) from ShuT Chasam Sofer (Choshen Mishpat siman 3) who writes, "Rav Sherira Gaon teaches us that in fact, the honor and prestige of Jewish dayanim is enhanced when they rule in favor of ploni but, not having the power to save the wronged party, they go and testify in court, `We judged ploni liable to pay such and such . . .' [and the court upholds and enforces their ruling]" (See ShuT Divrei Chaim of Sanz, Choshen Mishpat siman 7, ShuT Ramatz, Choshen Mishpat siman 6, and ShuT Sho'el Umeishiv, Teliso'o, vol. III, siman 125.)

ShuT Maharsham writes (in vol. III, siman 195), "In the writings of the holy gaon, the av beis din of Buczacz zt'l, it says that where the debt is clear and the debtor does not deny it, beis din's permission is not necessary nowadays, but out of piety he should receive their permission . . ."

The Source of Salvation and Healing

"Rabbi Yossi ben Elisha says, `If you see a generation suffering from many woes, go and check the judges of Yisroel (in case their sins are to blame) for all punishment that comes to the world is because of the judges of Yisroel. Hakodosh Boruch Hu does not rest His Shechinah upon Yisroel until the bad judges and functionaries vanish from among them' " (Shabbos 139).

"He tells His words [of Torah] to Yaakov; His statutes and laws to Yisroel. He did not do this for any other nation; they do not know the laws . . ." (Tehillim 147:19- 20).

Hashem promises, "I will return your judges as at first and your counselors like at the start" (Yeshayohu 1:26). These judges and counselors are those who judge according to the Torah's laws. We therefore pray to Hashem three times a day to "return our judges as at first . . . and take sorrow and lament from away from us . . ."

Taking our disputes to gentile courts causes the Shechinah to remove itself which results in all kinds of misfortune befalling us, R'l. Hashem's laws are truthful. Following them brings abundant blessing and good life to Am Yisroel, banishing sorrow and lament.

Get Beis Din's Permission! A Public Letter from Gedolei Yisroel

BS'D, 1 Iyar 5758

To distinguished Rabbonim and to all the holy community,

The severity of the prohibition against going to the courts is clearly stated in Shulchan Oruch siman 26. "Whoever takes a case before them is a rosho and is tantamount to having blasphemed and having raised his hand against the Torah of Moshe Rabbenu, o'h."

The Medrash Tanchuma (quoted in the Biyur HaGra ibid.) states that whoever ignores Jewish dayanim primarily denies Hakodosh Boruch Hu and then denies the Torah (see there).

Among our many sins, despite the tremendous severity of this sin, people do as they please. The Shulchan Oruch states that even when the other party is powerful, one should not go to court without receiving prior permission from beis din.

Since there have been mishaps with regard to granting permission to apply to the courts, we hereby state, clarify and make known that:

1] Permission to go to court should only be given in writing, by experienced dayanim, after investigation [yielding results that are] as obvious as day and night and as obvious as [the prohibition against marrying] one's sister.

2) Wherever grounds exist for appealing an arbitration ruling given by talmidei chachomim, dayanim who are gedolei Torah, as above, should be applied to and they should determine whether there are grounds to allow going to court where the other party refuses to abide by Torah law.

We sign for the sake of Hashem's true judgments

Yosef Shalom Eliashiv

Shmuel Halevi Wosner

Nissim Karelitz

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