A discussion of Halachic topics related to the Parsha of the
week. For final rulings, consult your Rav.
SELECTED HALACHOS RELATING TO PARSHAS SHEMOS
IS A JEW ALLOWED TO BRING HIS CASE AGAINST ANOTHER JEW BEFORE A SECULAR
WHEN IS IT PERMITTED TO GO TO A SECULAR COURT?
Under certain circumstances it is permitted for TWO JEWS to use the secular
court system. Obviously, it is permitted to defend oneself in court even if
the claimant was wrong in bringing his case to a secular court in the first
place. But there are situations when it is even permitted to prosecute
another Jew in a secular court.
Shulchan Aruch rules that if the defendant is a "rough" person who will not
abide by beis din's ruling, one may prosecute him in court, provided that he
has permission to do so from beis din.(1) The procedure is as follows: Beis
din summons the defendant to appear before it.(2) If beis din feels that the
defendant is purposely ignoring its summons,(3) or if the defendant
defiantly rejects its summons, beis din may then grant the claimant
permission to prosecute(4) the defendant in court.(5) [Permission may be
granted, when needed, by any informed beis din, not only by the one whose
summons was ignored or rejected.(6)]
Sometimes it is even permitted to use the court system without first
securing permission from a beis din. This applies to situations when the
court system is being used not to adjudicate a dispute but rather to enforce
the collection of an undisputed claim.
The following actions, for example, do not need explicit permission from a
beis din. [It is recommended, however, to review the exact case and all
pertinent details with one's rabbi, since there may be facts which could be
overlooked.] It is permitted to:
Request(7) of a secular court to enforce a beis din's ruling which is not
being adhered to.(8) Indeed, a document called shtar berurin, which is a
formal arbitration agreement, is available at any beis din. In most states,
the court system will accept a shtar berurin as a binding agreement and will
enforce its findings.(9)
Ask a court to issue a temporary injunction against a defendant's assets so
that the litigants have a chance to prepare and present their dispute to
beis din. This is permitted only if there is a reasonable chance that a loss
will occur if an injunction is not issued.(10)
Certify in court that an undisputed loan document is overdue and has not
been repaid; petition a secular court to force payment from an admitted
debtor who despite having available funds avoids or delays payment.(11)
Engage the services of a collection agency to collect a debt which is not in
dispute, yet is not being paid.
Complain to the housing court that rent is overdue, when there are no issues
to be decided and the renter admits to his debt, etc.
1 C.M. 26:2. In this case, any expenses incurred by the claimant in
prosecuting in secular court are to be borne by the defendant; Rama C.M.
2 It is customary to summon a defendant three times to beis din before
permission is granted to enjoin a secular court. [See, however, Gilyonei
ha-Shas on Bava Kamma 92b, that this is not required.] The exact procedure
of the summonsing process, including the manner, frequency and style of the
summons, depends on the rulings and customs of each individual beis din and
each individual case. [See Igros Moshe C.M. 2:6 who rules that beis din is
not necessarily required to detail the particulars of the accusation when
sending a summons to the defendant.]
3 In certain cases, when it is obvious to beis din that the defendant will
not appear before it or any other beis din, they may opt to skip the summons
entirely; Minchas Yitzchak 9:155.
4 This is permitted even if the defendant will now suffer great financial
loss or place himself in physical danger; see Mishpatei Shmuel 94 and 114
and Kesef ha-Kadashim 26:2. See also Kenesses ha-Gedolah 26:2; Divrei Chayim
C.M. 2:9; Teshuvos V'hanhagos 3:438.
5 Beis din, however, should give permission to prosecute in court only if it
believes that the claimant has a solid case against the defendant; see Aruch
ha-Shulchan C.M. 26:2 and Imrei Binah C.M. 26.
6 Teshuvos Maharil Diskin (page 92). Many poskim maintain that the community
rabbi alone, even without the authority of a formal beis din, can authorize
prosecution in secular court; see Betzeil ha-Chachmah 4:37.
7 Indeed, not only is this permitted, but it is a mitzvah to do so, since
this demonstrates that there are methods with which to enforce beis din's
ruling; Harav B.Y. Wosner (Divrei Mishpat, vol. 3, pg. 200).
8 Maharsham 1:89; 3:195; 4:105; Ha-Elef Lecha Shelomo C.M. 3. See also Emes
L'yaakov C.M. 26:1.
9 For a legal review of this subject, see Chaim Dovid Zwiebel, The Jewish
Observer, January 1993, and Shlomo Chaim Resnicoff, The Jewish Observer,