Shabbat Parashat Chayei Sarah 5777

P'ninat Mishpat: Going to Beit Din After Suing in Secular Court – part I

Case: The plaintiff ­(=pl) sued the defendant (=def) in secular court. He sent a letter of claim, which made it necessary for def to hire a lawyer and write a letter of defense, but they have not yet had a hearing. Pl now says that he wants to go to beit din and claims that he sued in secular court just so that def would have to respond and could not continue to be elusive. Def says that he would have been happy to go to beit din, but since he already paid money in preparation for the secular court adjudication, he is now unwilling. He also suspects that pl changed his mind because he is afraid he would lose there, and def refuses to change venues on those grounds.

Ruling: The gemara (Gittin 88b) says that it is forbidden for Jews to adjudicate before a non-Jewish court even if they rule according to halacha. The Rambam (Sanhedrin 26:7) and Shulchan Aruch (Choshen Mishpat 26:1) strongly condemn such action. The consensus of the past generations’ poskim is that the prohibition also applies to going to the State of Israel’s secular courts (see Tzitz Eliezer XII:82; Yechaveh Da’at IV:65), which is what pl apparently did. Even according to pl’s explanation that he did not plan to complete adjudication there, he still should have taken necessary steps according to the instructions of beit din (Shulchan Aruch ibid. 2).  

Classical poskim discussed whether one who improperly adjudicated at non-Jewish courts and lost can subsequently force the other litigant to adjudicate again in beit din. The Beit Yosef (CM 26) brings two opinions on the matter and prefers the one that he may bring him to beit din. The Rama (CM 26:1) also cites two opinions, but he limits the opinion that he can return to beit din to cases in which he did not cause damage to the other side. The Rama also prefers the opinion that he cannot force him back to beit din.

What is the reason one could not come back to beit din, considering that if they do not rule, we do not know if the non-Jewish court ruling was correct? The Tumim (26:2) explains that it is based on kiblu alayhu, the idea that one can accept upon himself a judicial process that does not follow the standard rules of halacha. The Levush (CM 26:3) and the Netivot Hamishpat (26:2) say that it is a penalty against the one who improperly initiated the adjudication.

At what point should the halacha of not allowing a return to beit din set in? The Tumim points out that when one accepts something based on kiblu alayhu and did not perform an act of kinyan, he is able to back out until the ruling is finally rendered. He says that the same is true regarding adjudication in a non-Jewish court. Several Acharonim say that also according to the explanation that the inability to return to beit din is based on penalty, the penalty sets in only after there is a ruling.

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