Shabbat Parashat Lech Lecha 5773

P'ninat Mishpat: Payment for Court Expenses –part I

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: There are two mechanisms that might obligate a litigant in legal expenses: garmi (payment for semi-direct damages) and agreement.

In the Israeli secular courts (the U.S., for example, does not have this practice), it is standard procedure for the losing side to be charged with the winning side’s legal fees. Part of the interest is to reduce the volume of litigation. The Torah approach is that when there is a reasonable legal/halachic disagreement, litigation is legitimate and not ‘damaging’ to one’s counterpart, and it need not be artificially limited. Beit din does consider charging the losing party expenses when a claim or a denial is frivolous or when expenses were caused by a side’s unreasonable refusal to submit to litigation or carry out a court ruling.

Following are the basic sources for these determinations. There is a disagreement in the gemara (Sanhedrin 31b) whether one litigant can force another to take their dispute to a distant, expert beit din. Rabbi Elazar says that it does not make sense to force someone to spend 100 zuz to win a case of 100 zuz. The Rosh (Sanhedrin 3:40) proves from here that the other side would not compensate for the traveling expenses, but he says that this is on condition that the litigant did not refuse to adjudicate. The Rosh provides a source for paying the expenses in the case of refusal. The gemara (Bava Kama 112:2) says that a messenger of the court is generally believed that he presented a subpoena to the defendant but not in regard to writing a peticha document because he will have to pay the price of the writing of the document. This shows that for an expense that comes from refusal to adjudicate, he is responsible. The Rashba (I:940) says that the defendant is obligated to pay for the peticha only because beit din levied the payment, whereas if the plaintiff paid the costs of secular court, the defendant is exempt because his causing of those expenses is gerama (indirect). The Rama (Choshen Mishpat 14:5) obligates even for the cost of the secular litigation that arose from the refusal as long as the plaintiff gained beit din’s approval to act in that way. The Yeshuot Yaakov compares the expenses of frivolous claims to a case where Reuven told Shimon to follow him to a distant place and Shimon went but Reuven did not.

These guidelines to expenses were promoted with a long explanation in a ruling by Rav Ovadia Yosef, Rav Mordechai Eliyahu, and our mentor, Rav Shaul Yisraeli. Rav Eliyahu argued that it is worthwhile for rabbinic authorities to join together to institute broader ability to charge expenses.

In this case, it was illegitimate to cash a check against the arbitrator’s decision and therefore payment for related expenses is appropriate. However, other expenses related to litigation are too indirect to charge for.    

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