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Shabbat Parashat Behar-Behukotay| 5767
Obligation to Pay for Legal Expenses - Based on Halacha Psuka - vol. 7 - A Condensation of a Piskei Din Rabbaniim VI - pp. 81-88
Case: The litigants were partners who had a disagreement about outstanding debts after the dissolution of their partnership. Regarding the actual claim, the defendant had to pay part of the claim in lieu of an oath. The plaintiff wants the defendant to pay legal expenses, claiming that the defendant’s unwillingness to pay caused them, including lawyers fees and court charges.
Ruling: The Shulchan Aruch (Choshen Mishpat 14:5) rules that the side that loses a court case does not have to pay the other side for his expenses. However, if the plaintiff acted with an acute lack of integrity by making spurious claims, he is obligated to pay. In this case, it is the plaintiff who says that the defendant acted in a disingenuous manner by refusing to pay when he should have. The Yeshuot Yisrael says that the possibility of such payment depends on the machloket whether intentional gerama (indirect damage) is payable when no action was done to the matter that was damaged. For example, the Shulchan Aruch and Rama (CM 386:3) argue about a case where one threw a utensil from a window toward a cushion and another purposely pulled away the cushion, causing it to break. Since there is not a consensus for payment in the matter, a defendant who was purposely elusive cannot be forced to pay, but he does have a moral obligation to do so. In this case, though, there is not even any indication that the defendant acted improperly in trying to preserve his interests and thus not a clear reason to obligate him morally for not paying immediately.
In contrast to the aforementioned, the Shulchan Aruch (ibid.) rules that if a defendant refused to show up in court, he has to pay for the expenses related to the time he was a sarvan (one who refuses to follow beit din’s directives). The apparent explanation of the payment specifically in that case is that it is a special penalty levied against one who showed contempt of the court (see Shur Harashba I, 940) and cannot be applied across the board. In this case, we can require the defendant to pay the expenses related to the scheduled hearing for which he did not show up (although not for the plaintiff’s missed work time).
Regarding direct court fees, the two sides should split the costs. This is based on the Shulchan Aruch (CM 13:3) that both litigants pay the scribe who transcribes their claims. However, since the court charges are a percentage of the sum of the claim and the claim was an exaggerated one, the defendant has to pay only half of the fee that corresponds to the reasonable part of the claim.
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