Lesson # 329 This lesson is based in part on a response of the great Gaon, R. Moshe Feinstein, zt"l (Igress Moshe, Vol. 4, p. 22). There was a wicked man who had a butcher shop that he advertised as being kosher, when in reality he sold non-kosher meat, and many Jewish people of the community (Baltimore) ate the meat that they purchased there. He somehow obtained seals that were used on kosher meat and he placed them on the non-kosher meat. The question that was asked whether this butcher should be brought before the civil authorities to punish him with heavy fines and possible prison sentence for these false sales or to summon him to a Rabbinic committee? Also the butcher was not penitent. It was held that they should not go to the civil authorities. Rather the Rabbis should handle the matter themselves. As long as there was no reason to think that the Rabbinic court could not handle the matter, they should attempt to handle it and not invoke the jurisdiction of the secular courts. ven if the secular courts would follow halachic precedent, it is forbidden to go to these courts. He cites Shulhan Aruch Choshen Mishpat 26, without setting forth its provisions. I will set forth some of its provisions as follows: There it states that it is prohibited to invoke the jurisdiction of the Gentile courts to settle a dispute. Employing Gentile courts rejects the entire Torah Beth Din system. The prohibition extends even to those places where the Gentile law is similar to or even the same as halacha. The prohibition applies even if both parties agree to use the Gentile courts. The prohibition applies even if they had prior binding agreements to go to those courts. The prohibition applies even if their agreement agreeing to go to the secular courts provided for penalties if one of the parties refused to go. The penalties will not be enforced by the Beth Din. However, if the money paid as the penalty was to be given to charity, the agreement would not be enforced but the penalty to charity would be. The prohibition applies even if the judges of the Gentile courts are Jews. Every effort should be made by the friends of the litigants and by the Jewish community at large to avoid the litigants resorting to the Gentile courts. If a person invokes the jurisdiction of the Gentile courts and loses his case there, he may no longer commence an action in Beth Din. (There is also an opinion to the contrary that permits the Beth Din to hear his claims.) If the litigation in the Gentile court is discontinued before a final decision is reached there, then the action may be recommenced in a Beth Din if the plaintiff reimburses all the defendant’s expenses in the Gentile court, and upon such other terms and conditions as the Beth Din deems appropriate. There is an opinion that if the decision in the Gentile court is appealable and the time to appeal has not expired, the decision is not deemed to be final and the action may still be brought to Beth Din. The defendant is not precluded from instituting an action in the Beth Din even if he has appeared in the plaintiff’s action in the Gentile court. If a party invokes the jurisdiction of the Gentile courts and obtains a judgment larger than the one that he might have won in a Beth Din, then the overage must be returned to the defendant. He must also reimburse all the defendant’s litigation expenses. All that has been said notwithstanding, if two Jews do go to the Gentile courts, then the decision of the court will be recognized. The winning party’s penance for having gone to the Gentile courts should be compliance with the provisions of this paragraph. That which has been paid by the losing party to the winning party in the Gentile court is not considered unlawfully acquired property in the hands of the winning party. There are times that the Beth Din will give a party to litigation the right to invoke the jurisdiction of the secular courts. For example, the plaintiff commenced an action in Beth Din and the defendant has disregarded many summonses to appear before the Beth Din. There is authority that the summons to appear in Beth Din must be personally served upon the defendant by two persons who can testify that he was served, and he still refuses to come to Beth Din. If the defendant appears and asks for additional time to plead then he is certainly not a recalcitrant defendant. imilarly if the defendant states that he wishes to select a different Beth Din, in those situations where he may do so, he is not a recalcitrant defendant. The majority of authorities hold that if a community has appointed a lone person to be its judge, then his authority in granting permission to the plaintiff to invoke the Gentile courts is the same as that of Beth Din of three judges. If a plaintiff has a claim against a powerful person and the Beth Din is powerless to compel the defendant to appear before it, then the plaintiff must nevertheless commence an action before the Beth Din. If the defendant fails to appear, the Beth Din will give permission to the plaintiff to sue in the Gentile courts. Some authorities hold that permission will be granted only if the plaintiff is able to show to the Beth Din that he has a good case that is winnable. If Beth Din is not convinced that he is entitled to win the case, then they will refuse him permission to go to the secular courts. If Beth Din is convinced that he will surely win the case in the Gentile court, they may assist him in the Gentile court and may instruct witnesses to testify there on behalf of the plaintiff. If a party has obtained a judgment in the Beth Din and the other party refuses to abide by the terms of the judgment, then the winning party may apply to the Beth Din for permission to apply to the Gentile court to enforce the judgment or to commence his case anew there. If the parties to the litigation ask the Beth Din to decide the case according to the Gentile law, Beth Din may do so, if it does not transgress Jewish law. This would be the case where, for example, a Jew purchased a promissory note from a Gentile that provided that any dispute concerning the promissory note be brought to the Gentile court. Assuming that the Gentile court would give a more favorable result to the holder of the note than would a Beth Din, the holder of the note can insist that the Beth Din apply the Gentile law. Another example would be (when I was practicing law, I was involved in this type of case) a case in which a woman would not inherit property under halacha but would under Gentile law. If the property has been left to her by her deceased husband, the Beth Din will instruct the heirs who would have inherited under halacha to effect a compromise with her. The subject matter of this lesson is more fully discussed in volume I chapter 26 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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