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Shabbat Parashat Vaeira 5772

P'ninat Mishpat: Switching from a Secular Court to Beit Din

(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   The plaintiff (=pl) has claims against the defendant (=def) on issues of employment. When he felt that def was not taking him seriously, pl sued him in secular court, and def responded with a ktav hagana (the defendant’s anwer); no hearing has taken place. Pl realizes that he was wrong in taking the matter to secular court and now wants to adjudicate before beit din. Def is not willing to switch the venue at this point, especially after he hired a lawyer to write the ktav hagana. Is def required to agree to go to beit din?

  

Ruling:  [We will not discuss the famous matter of the requirement to adjudicate in beit din rather than secular court.]

The Rama (Choshen Mishpat 26:1) says that if one sued in non-Jewish court and lost, and now he wants to take the same case to beit din, beit din should not accept the case. There are two reasons for this (see Tumim 26:2 and Netivot Hamishpat 26:2). One is that the plaintiff already accepted upon himself the ruling that the court would rule. The second is that the plaintiff is penalized for taking the matter to a court that does not rule according to Torah law.

Many poskim say that the above does not apply if the plaintiff wants to withdraw his suit at an early stage in the process. Firstly, the acceptance of the ruling of the court takes effect only after the judgment is handed down. Regarding the matter of penalty, it does not make sense that as part of our opposition to going to non-Jewish or secular court, we would force someone to continue the very process that we do not want to exist. Here too, logic dictates that the penalty begins only from the time of the judgment, when the process is complete.

Does the matter of money spent by def on a lawyer for the secular court affect the matter? In a similar scenario, the Lev Aryeh (51) raises the possibility that the defendant does not have to agree to switch to beit din after he already outlaid money for a lawyer, but it is not clear what his conclusion is, and especially in regard to our case. There is a lot of logic to distinguish between a case where a defendant had to outlay money as a direct result of the secular court (such as due to an interim ruling) and between one in which the defendant decided of his own volition to approach the adjudication in a manner that cost him money.

In our case, def was not required to hire a lawyer to write a ktav hagana. Furthermore, if it is felt that pl was responsible for unnecessary expenses, he can counter sue in beit din to recover them. Thus, the claim of loss of money due to a double process should not prevent him from continuing the process in beit din in a manner that it is not clear that he will have permanently lost any money based on the change. Therefore, def may not prevent pl from suing him in beit din. As usual, def should be the one to decide which beit din should adjudicate.

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Dedication

This edition of
Hemdat Yamim

is dedicated
 to the memory of
R' Meir
 ben Yechezkel Shraga Brachfeld

o.b.m

 

Hemdat Yamim

is endowed by

Les & Ethel Sutker

of Chicago, Illinois
in loving memory of
Max and Mary Sutker
and

Louis and Lillian Klein, z”l

 

This edition of
Hemdat Yamim
is dedicated to the memory of

Rabbi Shlomo Merzel o.b.m,
who passed away
 on the 10th of Iyar 5771

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