Shabbat Parashat Vayeira 5773
P'ninat Mishpat: Payment for Court Expenses –part II(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)
Case: The plaintiff (=pl) had given the defendant (=def) a check in relation to a now disputed stock deal. An arbitrator ruled that def must return the check, but he instead cashed it with the help of hotza’ah l’poal (the arm of the court that enforces debt payments). Pl demands not only return of the value of the check but also that def pay their legal expenses.
Ruling: [Last time we presented the basic guidelines regarding when beit din can charge one side for the litigation expenses of the others. This time we will focus more on the specifics of the case.]
The expenses other than those to prevent the execution of payment for the checks are indirect and fall into the category of gerama for which there is usually not payment. However, Paragraph 7 of our arbitration agreement states: “The sides agree to pay litigation expenses and lawyers’ fees as beit din will set at its discretion.” This clause certainly comes to broaden beit din’s authority to levy payments that it could otherwise not do, just as Paragraph 6 does regarding certain payments for indirect damage. This is in line with Rav M. Eliyahu’s suggestion for expanding such payments [see part I of this article.] This should certainly apply to def’s objectionable steps, which made the additional steps of litigation necessary.
While the maximum amount that pl could have owed def was 61,300 shekels, the amount he demanded for payment through hotza’ah l’poal was 118,351 shekels plus 13,110 shekels for expenses. That tremendous jump is certainly unjustifiable. Admittedly, def stated that he had planned to return some of that money to pl. Even if this could be proven to be true, one is not allowed to steal with the plan of returning (Shulchan Aruch, Choshen Mishpat 359:2). Based on the degree of impropriety in def’s actions, beit din feels that it is appropriate to obligate him to pay for some of the expenses involved in the dispute over the stock deal as well.
Regarding paying for expenses, the Rama (CM 14:5) says that the recipient needs to prove how much was expended, or beit din will make an appraisal of the expenses. The simple reading is that either proof or an appraisal suffices. The Shach (ad loc. 16) argues and says that there needs to be proof how much was spent and then there should also be an appraisal that too much was not spent. The Netivot Hamishpat (ibid. 6) clarifies that one does not have to prove an exact monetary amount for expenses, but that one has to prove what actions he needed to take, and then beit din can attach a conservative estimate of expenses if the exact amount is not proven.
In this case, much of pl’s claimed expenses are itemized and substantiated by specific lawyer’s fee receipts, but others are not sufficiently itemized. In any case, the charge should be according to that which is appropriate to have been paid.
Def has to pay 25,000 shekels based on the normal letter of the law and 20,000 shekels based on its authority through the arbitration agreement to expand payment.
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