Shabbat Parashat Toldot 5777

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

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: [Last time, we saw that whether the idea that one who initiated adjudication in secular court and lost cannot demand a retrial in beit din is based on accepting the ruling or on penalty, it does not apply at the earliest stages of adjudication.] 

The opinion in the Rama that we do a retrial in beit din after the non-Jewish court ruling was not said in a case that the first adjudication caused losses to the other side. The Lev Aryeh (52) says that this applies even to the expenses of hiring a lawyer, as this justifies employing a penalty against the one who initiated the improper judicial process. This seems to apply in our case. However, it makes sense that the Lev Aryeh is talking only about cases where the adjudication was completed in secular court. The Imrei Yosher (36) also argues with the Lev Aryeh and says that only irreversible damage, such as incarceration, prevents a retrial in beit din. Simple payment can be made up by having beit din make the plaintiff reimburse the expenses. In our case, pl has promised to cancel the claim in secular court before any further damage will be caused and to sign that he agrees that beit din rule whether he should reimburse def.

The Divrei Chayim (II:CM 1) said, regarding a similar case, that the plaintiff is required to pay expenses before continuing on to beit din. However, it is possible that this was only in a case when the plaintiff turned to beit din because he thought he would lose in the non-Jewish court and because the damage was very direct.

In our case, def has claimed that the reason pl wants to return to beit din is that he believes he will lose in secular court. There is logic to penalize pl in such a case and refuse the request. However, def has not provided support, let alone proof, for that contention. In general also, when there is a doubt whether a penalty is forthcoming, we do not levy one (see Nachal Yitzchak, CM 25).

There is also a machloket haposkim (see S’ma 26:7 and Tumim 26:3) regarding a case where one already received a reward in secular court adjudication that he did not initiate, with some saying he is required to go to beit din to confirm he deserves the money. This is one more reason to prefer that the adjudication be transferred at this point to beit din.

Therefore, pl is right to correct his path and return to beit din even if def wants to continue in secular court. (As usual, def may choose the beit din which will adjudicate.)   

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