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Shabbat Parashat B'haalotcha| 5771

P'ninat Mishpat: Who Can Sequester Property?

condensed from Shurat Hadin, vol. VII, pp. 283-4

Case: A husband (=def) sued in the Rabbinical Court for divorce and linked to it a request of litigation on property matters. In the midst of the litigation, his wife (=pl) requested a tzav ikul (sequestration of def’s property) in order to ensure her rights. Def claims that since he is the plaintiff in the proceedings before beit din, it is he not she who can request ikul by beit din. Def claims that ikul is a supplementary decree for the plaintiff who officially opened the proceedings.

 

Ruling: The halachic basis for sequestration is found in the Rosh (Bava Kama 1:5) and the Shulchan Aruch (Choshen Mishpat 73:10). The point of it is to protect one from the possibility of being taking advantage of by an unscrupulous person who might cause his assets to disappear before beit din would issue the ruling that he is indeed culpable. The context of the halachic discussion is of matters of loan, and it is clearly the alleged borrower whose property could be subject to ikul. It is not applicable there to discuss sequestration requested by the defendant/ borrower of the property of the plaintiff/ lender.

However, the matter is different in regard to the division of property between spouses in divorce proceedings. While one side may initiate proceedings as the plaintiff, the possibility of ensuring rights to property under litigation applies equally to either side. To the contrary, one must be particularly aware that as part of the linkage of the monetary issues to the get, the woman’s rights to support, which is exclusive to her, are now part and parcel of the litigation. Beit din has the same responsibility to safeguard the rights of both sides of the case, each one according to his or her particular circumstances.

The matter is somewhat more complicated where the defendant does not accept the jurisdiction of the beit din and demands to adjudicate elsewhere. Nevertheless, in this case as well, as long as the court in questions controls the legal process at the time, it has the responsibility to protect the rights even of the side that wants to eventually adjudicate elsewhere.

It is true that the Provision 108.1 of the Regulations of Adjudication speaks of sequestration specifically of the defendant’s property on behalf of the plaintiff. However, it is legally impossible to interpret this literally. Rather, “defendant” here does not refer to the main defendant but to one against whom claims are being made. In many cases, including ours, there are multiple and mutual plaintiffs and defendants, even if there is a need to set only one person as plaintiff and one as defendant in regard to other elements of the adjudication.

 

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