A discussion of Halachic topics related to the Parsha of the
week. For final rulings, consult your Rav.
SELECTED HALACHOS RELATING TO PARSHAS VAYECHI
BEIS DIN AND SECULAR COURT?
Whole portions of the Torah deal with financial issues and with monetary
disputes that may arise between Jews. The Torah states specifically that all
such altercations must be decided in accordance with Jewish law, which means
that a dispute between Jews must be presented to a Jewish court, a beis din,
who will adjudicate the matter in accordance with the rulings of the
Shulchan Aruch and Jewish tradition.(1)
It is, therefore, a strict Torah prohibition for a Jew to use the
secular(2) court system(3) in order to resolve a dispute with ANOTHER
JEW.(4) To do so is a chillul Hashem, a desecration of G-d's Name, because
it is tantamount to declaring publicly that their system of justice is
preferable to that of the Torah.(5) Shulchan Aruch uses extremely harsh
language about a person who brings his case before a secular court: he is
called a rasha; it is considered as if he has blasphemed and cursed; it is
as if he has "raised a hand" against the Torah of Moshe Rabbeinu.(6)
Unfortunately, many people are ignorant of the prohibition against
resorting to secular courts. Some justify their laxity with the claim that
there is no point in going to beis din since only secular courts have the
power to enforce their judgments, or that secular courts are fairer and more
efficient. Bypassing the beis din and using the secular system to adjudicate
disputes between Jews is prohibited under all circumstances, EXCEPT in some
of the cases listed below.
Accordingly, any monies gained by a judgment from a secular court which
would not have been won under Torah law are considered stolen monies which
must be returned to their owner.(7)
It is the responsibility of each Jewish community to have a functioning
beis din which is available to adjudicate all matters of dispute. It is also
the responsibility of the Jewish community to uphold the power of beis din
and enable it to enforce its judgments. And while the executive power of
beis din is, admittedly, limited so long as we remain in exile, still there
are quite a few ways to make it effective even nowadays.
A possible tool that beis din can use to force an individual to appear
before it is the ksav seiruv, which is a document issued by beis din stating
that the individual disregarded this or any other legitimate beis din's
summons(8). It is then the community's responsibility to bar such a person
from religious communal life; e.g., to deny his right to be a member of any
congregation, to be called to the Torah for an aliyah, to be a sheliach
Some additional points concerning the prohibition of bringing one's case
before a secular court:
The prohibition against using a secular court is in effect even if both
sides in the dispute agree to present their case to a secular court and
abide by its ruling.(10)
The prohibition against using a secular court remains in effect even if the
parties agreed(11) in advance that all potential disputes between them will
be adjudicated by a secular court.(12)
The prohibition against using a secular court applies even for the purpose
of using the court to force the defendant to place himself under the
jurisdiction of beis din.(13)
The prohibition against using a secular court applies to the claimant as
well as to the lawyer or anyone else who represents or encourages him.(14)
A claimant who prosecuted another Jew in court and lost his case may not
appeal to beis din.(15) But if the defendant knows or suspects that
according to Torah law he is guilty, he is obligated to pay the claimant his
Many industries have in-house arbitration panels which -based on the
arbitrators' common sense and customary practice within that trade -resolve
internal disputes. These panels are not considered "secular courts" and are
permitted to be used.(17)
Next week: When is it permitted to go to a secular court?
1 Talmud, Gittin 88b.
2 It makes no difference if the secular court system is administered by
non-Jews or by Jews who do not rule in accordance with Torah law and
tradition, such as the secular Israeli court system; Chazon Ish, Sanhedrin
15:4; Harav T. P. Frank (written responsum quoted in Tzitz Eliezer 12:82);
Yechaveh Da'as 4:65.
3 Even if the secular court intends to rule according to Torah law as its
basis for judgment, it is still strictly prohibited; C.M. 26:1.
4 When redressing a dispute with a non-Jew, it is permissible to use a
non-Jewish court only if the non-Jew will not accept the authority of beis
din. If the non-Jew is willing to go to beis din and abide by its ruling, it
is Biblically prohibited to seek judgment in a non-Jewish court; Tashbatz,
vol. 4, Tur Hashlishi 6, based on Tanchuma, Shoftim 1, quoted in Divrei
Geonim 52:15 and Minchas Yitzchak 9:155.
5 Rashi, Mishpatim 21:1. See also Rabbeinu Bechayei's commentary.
6 C.M. 26:1, based on Rambam, Sanhedrin 26:7.
7 Rabbi Akiva Eiger, C.M. 26:1.
8 A ksav seiruv cannot be served if the defendant rejects a particular beis
din's summons with the claim that he wants the case to be presented to
another beis din, even if the alternate beis din is lesser in stature or is
in another city; Nesivos C.M. 26:13. For more information about this issue,
see Teshuvos V'hanhagos 3:437 and Divrei Mishpat, vol. 1, pgs. 203-211.
9 See Darkei Moshe C.M. 19:1 who writes that a seiruv can go as far as to
ostracize the individual so that "people should not daven with him, they
should not circumcise his son, the should not bury his dead, they should
remove his children from school and his wife from shul." See, however, Yam
Shel Shelomo, Bava Kamma 10:13, who feels that the wife and children should
not be made to suffer pain and shame on account of their husband or father.
10 C.M. 26:1, based on Ramban, Mishpatim 21:1. But it is permissible for the
litigants to present their case to beis din and ask it to rule in accordance
with secular laws; Divrei Chayim 2:30, quoted in Minchas Yitzchak 9:112.
11 Either verbally or contractually; either with a binding kinyan or
without; C.M. 26:3-4. Even if he swore to do so, he still may not bring his
case to court; Aruch ha-Shulchan 26:4.
12 C.M. 126:3. Several details concerning this issue are discussed in
Teshuvos V'hanhagos 3:441 and 3:443.
13 Rama C.M. 26:1. Possibly, bringing the case to court merely to intimidate
the defendant - without any intention of actually prosecuting him there - is
also prohibited; see Divrei Mishpat, vol. 3, pgs. 195-197.