Shabbat Parashat Vaetchanan 5778

P'ninat Mishpat: Expenses of Using Hotza’ah Lapo’al

Case: The plaintiff (=pl) sublet an office from the defendant (=def) with a detailed contract. At the top of the contract, it was written: “Rental agreement – this agreement was done based on a relationship of friendship and therefore includes no clauses about breach of contract and remedies.” Over time, pl fell behind in rental payments by around 8,000 shekels. Def asked for payment many times; there is a dispute whether a repayment schedule was made. After pl ignored a lawyer’s letter demanding payment, def sued for payment at Hotza’ah Lapo’al (=HLP, an arm of the Israeli government that carries out payment from recalcitrant debtors). As a result, pl has paid, but HLP made him pay 2,359 shekels more than the actual debt, due to different charges. Pl is suing def to compensate for those charges because def went to HLP instead of to beit din. Pl also claims the contract is not enforceable because it says that there are no remedies because the sides are friends. Def responds that a rabbi told him that it is not necessary to adjudicate in beit din or get their permission to go to HLP when there is agreement on the amount of money that is due.

Ruling: First, despite the opening to the contract, it is not reasonable that a detailed financial agreement cannot be enforced at any point. All the clause means is that penalties and remedies will not be spelled out because it is not expected for friends to reach such a point.

[It is true that we consider going to Israeli secular court like going to non-Jewish courts because they follow other systems of law rather than Halacha.] However, there are many halachic sources about going to non-Jewish courts to enforce clear obligations. [The ruling surveys many such sources; we will not get into detail and will just mention the issues.] Generally, the problem of going to non-Jewish courts is in preferring their rules of justice (see Beit Yosef, Choshen Mishpat 26), which does not apply when one goes to enforce payment of a debt that is not in dispute.

Some have claimed that the courts do not follow the Torah rules of how to extract payment (see Shulchan Aruch, CM 97). However, HLP is actually more lenient on the debtor than Halacha requires. If pl claims that he does not have the money to pay, in our times, HLP has tools at its disposal that beit din lacks to make such a determination. Thus, the policy of most poskim is that one may go to HLP to extract payment that has been ruled on by beit din or when the claim’s veracity is not in question, and this is Eretz Hemdah-Gazit’s stated policy. There is some question as to whether one is required to get permission from a beit din, but the consensus on this point is also to be lenient if there is no dispute on content.

Therefore, beit din does not find fault in def’s actions, and not only is he exempt from paying for pl’s expenses but deserves a return of lawyer’s fee involved in his collection effort.

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