In the previous article we discussed the basic prohibition against taking a legal dispute to non-Torah or secular courts of law.
As we saw, doing so involves a particularly severe transgression, which includes a desecration of the Name of Hashem, and which the Rambam describes as “raising a hand against the Torah of Moshe.” Moreover, the prohibition applies to any system of adjudication that is not Torah law, whether by Jews or non-Jews, and whether the ruling in the specific case concurs with or contradicts Torah law.
However, despite the gravity of the prohibition, there are cases in which there is no choice other than to take the case before non-Jewish or secular courts, and in which doing so is permitted. As we will see, this permission can derive from practical considerations (such as when a person needs to defend himself in court), or from substantive considerations relating to what defines “courts of law,” and which cases involve turning to an alternative legal system.
Under which circumstances is it permitted to file a case in a non-Jewish or secular court of law? Which kind of non-Torah tribunals are not considered courts of law for purposes of the prohibition? What is the halacha when insurance companies are involved? And what must one do when an award granted by the court is greater than the amount that a Jewish Beis Din would grant?
These questions, among others, are discussed below.
Taking the Case to Court
In view of the prohibition of turning to non-Jewish or secular courts of law, the correct way to initiate proceedings is to file a suit in a Beis Din. Today, Batei Din both in Israel and abroad operate under arbitration law, and generally, after agreeing on the Beis Din, both parties sign an arbitration document. This ensures that the final ruling is actionable—as discussed further below.
What happens when the defendant refuses to come to Beis Din?
In the past, Batei Din sometimes had the authority to force litigants to adjudicate the case under their authority. This is generally not the case today, which raises the question: How can a plaintiff deal with a case in which the defendant refuses to attend Beis Din?
In such circumstances, it is permitted to take the case to non-Jewish courts of law who do have the power to compel the defendant. The source for this ruling is the Gemara (Bava Kama 92b), which states: “If you call your friend and he does not respond, throw a wall upon him.” The Rosh, citing Rav Paltoi Gaon, explains this as follows: “We derive from here that if Reuven has a complaint against Shimon and the latter refuses to come to Beis Din, then it is permitted to take him to non-Jewish courts to extract what belongs to him” (Rosh, Bava Kama 8:17).
Under these circumstances, the prohibition against going to a non-Jewish or secular court does not apply. The prohibition is because the person apparently prefers a non-Jewish legal system and repudiates Torah law. Where Torah law is not available, it is therefore permitted to take one’s case to non-Jewish courts.
However, even then, one must first receive permission from Beis Din. As the Rambam (Sanhedrin 26:7) and Shulchan Aruch (Choshen Mishpat 26:2) rule, when a defendant refuses to come to Beis Din the plaintiff must “receive permission from Beis Din, and salvage himself from his litigant through non-Jewish judges.” The Rema adds that the Dayanim themselves may also go to the non-Jewish court to testify in favor of the plaintiff.
Confirming a Beis Din Award
If one has received a judgment from Beis Din, is it permitted to enforce the judgment by means of secular courts?
On the general issue of turning to non-Jewish courts, the Ramban (Shut Ramban no. 63; also cited in Shut Ha-Rashba 3:179) writes that he is not aware of the lenient ruling of the Geonim concerning adjudicating a case before a secular court, as cited above by the Rosh.
However, he states that for cases of a “strongman” who is unwilling to comply with the ruling of Beis Din, the first step is that Beis Din hears the case—even when the other party refuses to attend Beis Din—and issues a halachic ruling. Following this, it is permitted for the plaintiff to implement the ruling by means of non-Jewish courts. Thus while the Ramban doesn’t allow one to turn to secular courts for adjudication, he permits going to court to implement the judgment.
Rav Shlomo Kluger (Shut HaElef Lecha Shlomo, Choshen Mishpat 3) writes that once Beis Din has issued a ruling, if the losing litigant refuses to comply with the ruling, it is permitted for the other litigant to take the matter to secular court. He writes that this is permitted even without receiving explicit permission from Beis Din.
This is also the ruling of most authorities (see Shut Maharsham 1:89, citing Knesses Hagedolah and Daas Kedoshim, and Shut Maharsham 3:195). However, because this matter is not clear-cut (see for instance Urim Vetumim 26:5), it is best to obtain permission even for implementing a Beis Din ruling in non-Jewish or secular courts and this is the common custom.
The only cases in which a person requires no permission to argue his case before a non-Jewish or secular court are cases of self-defense. If a person is sued in court by a plaintiff, he may defend himself in court (see Imrei Binah, Choshen Mishpat 27). Although even here some authorities require getting permission from Beis Din (see Urim Vetumim 26:1), the custom is that doing so is not required.
Certainly, one must first make an effort to bring the case to Beis Din, especially where the other litigant is also an observant Jew.
Likewise, where the other litigant is a non-Jew, one can generally assume that he will not be willing to take the case to Beis Din and one may go directly to non-Jewish courts. Based on the Tashbatz (2:290), it remains a mitzvah to attempt to bring even a case against a non-Jew to a Beis Din, but upon refusal it is permitted to go directly to secular court (Orach Mishpat, Choshen Mishpat 26:1, 178). A similar ruling applies to corporations (such as insurance companies) and other bodies that are highly unlikely to agree to a Beis Din. The general practice of batei din is to issue one summons and if these bodies refuse or ignore the summons, beis din gives permission for the plaintiff to take the case to secular court.
Imminent Loss
Is it permitted to file for a temporary restraining order or for a preliminary injunction in secular court to save oneself from imminent loss, even without permission from a Beis Din?
The Ramban (Shut Ramban no. 63) writes that in cases of imminent loss, when a person’s property is under threat, it is permitted for the person to save himself, whether by means of Jewish or non-Jewish authorities. This is not considered “going to court” but rather taking action in self-defense, and it therefore does not involve any prohibition.
Several authorities specify that it is permitted to utilize secular courts for self-defense (see Knesses Hagedolah 73) by obtaining an injunction, if a similar injunction of Beis Din will be ineffective. Rav Moshe Sternbuch (Shut Teshuvos Vehanhagos 3:440) adds that together with procuring the required emergency injunction, a person must clarify his intention to bring the case before Beis Din. Elsewhere (Vol. 5, no. 362:2) he writes that one should obtain permission from Beis Din if this is possible.
Administrative and Technical Proceedings
The prohibition against going to non-Jewish and secular courts relates specifically to a dispute among litigants. Halachah instructs us to adjudicate our cases by Torah law, and not by an alternative legal system. This implies that where the matter at hand is technical or administrative, rather than a matter of litigation and judgment, the prohibition against going to a non-Jewish court may not apply.
Thus, where a court procedure is required for matters such as to enact a change of name, a naturalization proceeding, acquiring citizenship, and so on, there is no prohibition in initiating proceedings in a local court, and no permission for doing so is required from Beis Din.
The same is true concerning probate of an uncontested will. Where the will is contested, litigants must take their case to Beis Din. Where the will just needs to be probated in court so that banks will release the deceased’s funds, it is permitted to go through the required procedure in court.
Some matters, such as filing a complaint over building irregularities with the relevant municipal authority, compensation for traffic-related offenses, medical malpractice, and others, raise complications concerning pursuing the matter with a secular institution. We reserve this matter for a separate article.
Award Not in Accordance with Jewish Law
Even where it is permitted to argue a case before a secular court, this does not imply that a litigant may keep whatever award he is granted by the court.
If a person is granted an award by a non-Jewish court that is more than he or she is entitled to according to Jewish law, many write that it is forbidden to accept the award even if it was permitted to go to court, such as in cases of self-defense, or where permission was given by Beis Din.
Concerning somebody who took his case to court without permission, the Tashbatz (2:290) rules that accepting such an award is considered theft (he writes that this is obvious) and will disqualify the litigant from serving as a witness. The ruling is cited by Rabbi Akiva Eiger in his annotations to Shulchan Aruch (Choshen Mishpat 26:1), and by other authorities.
Many authorities assume that the same principle applies even to somebody who went to court with permission from Beis Din, so that if the granted award is greater than what he deserved in Jewish law, the difference must be returned to the other litigant (see Nesivos Hamishpat 26:3). Shut Avnei Nezer (Yoreh Deáh 133:2) comments that a person’s refusal to go to Beis Din does not make it permitted to steal from him in court.
This matter naturally involves significant complications, and it is important, even after permission is given to go to court, to consult with a competent authority or Beis Din concerning the award granted by the court.
May be speedily see the day when Hashem will renew our judges as in former days!
