More often than not, when two parties are involved in a legal dispute of any kind, expenses will be incurred. These expenses can include legal fees (payment to attorneys), loss of work, travel expenses, and others.
Secular law (in the great majority of countries) recognizes some of these expenses as valid legal claims. In a civil suit, the person who loses the suit is liable to pay the legal expenses of the other party, and the judges will often take the nature of the suit and the behavior of the parties into account when deciding on the amount.
What is the halachic approach to expenses of litigants? After receiving a ruling in his favor, can a litigant claim legal or other expenses from his rival? Are there difference between different types of cases for this matter? What happens when a frivolous case is filed for the express purpose of causing the defendant a loss?
We will discuss these questions, and others, in the present article.
Paying for Travel Expenses
Concerning the question of where adjudication should take place, The Gemara makes the following statement: “Rabbi Elazar taught: [Should] somebody who is owed a hundred lose a hundred [by traveling to court]? Rather, we force him to have the case adjudicated in his town” (Sanhedrin 31b).
This means that a defendant cannot force a plaintiff into expensive travel for adjudication – traveling that would incur heavy expenses, and might make the whole claim uneconomical. Assuming that they are inhabitants of the same place, the halachah is that they must generally go for adjudication locally. (This is true when there is a competent local beis din which is not always the case.)
This ruling appears to imply that a litigant who loses the case is not liable to pay for expenses. If he were liable for expenses, there would not be a problem for the plaintiff, since his travel costs would be paid back later by the losing defendant. The implication is that the defendant, even should he lose, is not liable to pay these expenses.
This observation is made by Tosafos (Sanhedrin 31b) and the Rosh, and the ruling is made by the Shulchan Aruch (Choshen Mishpat 14:5): “Somebody who loses a case is not liable to pay for the plaintiff’s expenses, even if he caused him to travel out of town.”
Refusal to Come to Beis Din
Why is this? Shouldn’t a defendant who loses a case and in the process causes the plaintiff to incur expense, pay those expenses?
The basic reason that authorities give for the exemption is that such expenses are gerama – indirect damage that cannot be claimed according to halachah. Although the plaintiff incurred extra costs, these costs are not direct damage and therefore the defendant is not liable for them.
According to the Mordechai (Sanhedrin no. 707), the same principle applies even to somebody who incurs expenses in order to force a defendant to come to Beis Din for adjudication: “If Reuven incurs expenses in forcing Shimon to adjudication, Shimon is not liable for any expense, even if he loses the case.”
However, other authorities dispute this ruling, arguing that when a person refuses to come to Beis Din so that the plaintiff has to incur expenses in forcing him to come, the defendant (assuming he loses the case) has to pay for these expenses.
This halachah, which is ruled by the Rosh (both in his halachos, Sanhedrin Chap. 3, no. 40, and in teshuvos no. 73 and 107), considers sarvanus – the refusal of a party to come to Beis Din – as a direct form of damage, for which the one causing them is liable to pay (see below for this).
The Rosh (in the name of the Ri) proves the point from a Talmudic ruling (Bava Kama 112b), according to which a borrower who refuses to pay his debt must pay the expenses of the scribe in writing the peticha (a document of ban against him).
This opinion is ruled by the Shulchan Aruch (14:5): “But should he refuse to come to Beis Din, and the plaintiff had to incur costs in forcing him to come, he must pay back all of the expenses he [the plaintiff] laid out from the time that he [the defendant] was considered a sarvan.”
The Sema (28) notes that this halachah applies only when the sarvan ultimately loses the case.
Expenses of Going to Court
What happens when a defendant refuses to appear before Beis Din, so that Beis Din (after three unanswered invitations) give the plaintiff permission to take him to secular court? Going to court invariably involves expenses: Can these be claimed by the plaintiff from the defendant?
This question is debated by authorities. The Rashba (1:940) writes that under such circumstances the defendant is not liable to pay expenses, because this (too) is a case of gerama – indirect damage for which there is no liability in halachah. The Rashba adds that this is not similar to the case of a sarvan, understanding that the liability of the sarvan is a special instance in which Beis Din fines a person for his refusal of an invitation to Beis Din.
This is the ruling given by the Shulchan Aruch (14:5).
However, the Rema writes that other authorities (principally the Rosh) dispute this ruling, maintaining that a defendant who refuses to come to court and causes the plaintiff to incur expenses, is liable just as in the case of Beis Din. These authorities see somebody who refuses to come to adjudication as causing direct damage, for which he is liable both in a Beis Din setting and in secular courts.
The Vilna Gaon (30) explains that the dispute between the two opinions hinges on the difference between gerama, indirect damage for which a person is exempt from liability, and garmi, a more direct form of damage (though still not entirely direct) for which a person is liable.
According to the Rashba, the category of garmi requires a direct act of damage by a person to another’s possessions.
According to the Rosh, however, any frequent form of damage can be included in the garmi category, and this includes a sarvan both in Beis Din and in court.
Failing to Show Up
There are cases, however, where all agree that somebody who does not show up to Beis Din will be obligated to pay the other party’s expenses. This applies to a case in which the parties actually agreed among themselves to go before a specific tribunal, yet one of them failed to show up. In this case the person who did not come will be liable for expenses.
This halachah emerges from the Mordechai itself, and it is ruled by the Rema.
The Mordechai implies that the reason for the liability is that the parties create a mutual obligation that they have to keep. The Vilna Gaon, however, explains that this is also a case of garmi, as noted above.
Note that the halachah of one party not showing up to an agreed appearance applies to all cases of financial loss, and not only to a court scenario. For instance, if one party fails to show up (Heaven forbid!) to a scheduled wedding, he would be liable for the other side’s expenses.
The Noda Bihuda (Tinyana, Even HaEzer 90) gives a similar ruling concerning a husband who failed to show up to give his wife a Get, after he had agreed to do so at a designated time.
A Frivolous Case
When the case brought by the plaintiff turns out to be entirely without foundation, and we surmise that the entire case was brought to cause the defendant the expenses he incurred, some authorities write that the plaintiff is liable to pay the expenses (see Shut Yeshuas Yisrael, Choshen Mishpat no. 14).
Rav Moshe Sternbuch (Teshuvos Vehanhagos 4:303) explains that this case crosses the line between grama and garmi:
“If we can see that the plaintiff knew his claim was without foundation, and he intentionally meant to provoke the defendant and thereby cause him financial losses and expenses, we find the plaintiff liable for expenses” (though he also writes that the Beis Din of the Edah Chareidis does not rule this way in practice).
The reason for this is that “the damage is not a case of grama, but rather garmi, since the damage is somewhat direct and is considered close to a certain damage, for the financial damage is being caused by a particular action of the other party who sued him for nothing. This is different from a regular sarvan, where the entire damage is due to his not coming to court, which is passive and does not entail certain financial losses.”
Rav Sternbuch adds that Beis Din will not usually find a party liable for legal expenses, since this is surely a case of indirect damage (adding that it is hard to prove that the legal counsel was essential to the case). However, Rav Sternbuch notes that this is “especially true at the beginning of a case,” meaning that at the beginning of a case the necessity of legal counsel is unknown. It is possible (based on this idea) that there will be room to obligate the frivolous plaintiff where legal counsel is clearly essential.
Note that even where the party causing the other side’s expenses is exempt from liability, this does not mean that it is permitted to cause expenses. In fact, it is certainly forbidden to do so, and Rav Sternbuch cautions that although he might be exempt in the human court, he is liable in the Divine Court for the damages incurred.