In general, Halachah demands litigation in beis din and prohibits turning to civil court for adjudication. However, in certain situations Halachah allows litigation in civil court (C.M. 26:1).

In the ensuing series, be”H, we will address details of this issue. Among the questions are:

What is the source of and reason for this halachah? What is the status of a Jewish civil court?

What if no beis din is available? What if there is mutual agreement to litigate in civil court or it is stipulated in the contract?

Does this halachah include also arbitration in civil courts? In trade courts?

What if the other party refuses the summons to beis din or sues in civil court?

After suing unsuccessfully in civil court, can one litigate in beis din?

Can one turn to civil court for legal measures such as stop orders?

 
Q: What is the source and rationale of the prohibition to adjudicate in civil court?

A: Parashas Mishpatim begins: “These are the laws that you should place before them” (Shemos 21:1). The Gemara interprets this to mean: “before them [=qualified Dayanim]; not before gentiles” (Gittin 88b).

The Rambam (Hil. Sanhedrin 26:7) and Shulchan Aruch are emphatic on this issue: “Anyone who adjudicates before gentile judges and in their courts, even if their laws are the same as Jewish law, is wicked; it is like he blasphemed and rebelled against Moshe’s Torah” (C.M. 26:1).

Among the explanations is that judicial systems express authority. Accepting a secular authority over the Divine one is a desecration of Hashem’s Name, even if a particular law happens to be identical. Furthermore, each judicial system draws from the philosophical underpinnings of its origin. Thus, civil law draws from philosophical bases that are often at odds with the Divine, fundamental principles espoused and advocated by Jewish law.

Q: What is the status of Jewish civil courts, such as those in the State of Israel?

A: The Chazon Ish (Sanhedrin 15:4) and many other authorities ruled emphatically that although the judges in these courts are Jewish, they are not included in “that you should place before them” (Shemos 21:1). This is because they do not rule according to the Jewish law system but according to a conflicting code of civil law, which draws also from secular perspectives.

Furthermore, Jewish civil courts are included in the parallel exclusion, “before them and not before hedyotos (commoners).” The prohibition remains even if both parties agree and even if there is communal acceptance.

Thus, other than in certain cases (to be addressed later), a person is not allowed to adjudicate before them; one is required to approach a halachic beis din for adjudication. There are now many halachic batei din operating in Israel, and also in the U.S. and other countries.

Q: I live in a remote place where there is no beis din. May I adjudicate in civil court?

A: The Rema (C.M. 8:1) writes that where there are no Rabbis qualified to adjudicate, the community should appoint the most qualified people among them to rule, so that people should not turn to civil court. Aruch Hashulchan (C.M. 22:8) writes that this is not practiced nowadays, most likely because of the lack of communal authority.

Where there is no beis din reasonably available, arbitration is preferable, but it is permissible to turn to civil court to uphold justice. Presumably, the Torah does not prohibit turning to civil court when there is no beis din before whom to adjudicate; this is not viewed as a rejection of Torah law (Orach Mishpat, Rav Chazan, B.Y. 26:5). Given the ease of travel nowadays, though, this halachah has limited applicability.

Q: Is an arbitration panel or trade court included in the prohibition against litigating in civil court?

A: This depends on the nature of the arbitration panel. If the panel is bound by law to rule based on their best understanding of civil law, it is also included in the prohibition. However, it is permissible to adjudicate before an arbitration panel, even of non-Jews, which arbitrates based on their common sense of fairness and justice (Shach 22:15; Nesivos 22:14; Minchas Pitim, Shiyurei Minchah 68:10).

Furthermore, some allow summoning a litigant to adjudicate before a trade court in a trade that has its own court, which judges based on the commercial practices of that trade, such as the diamond industry — especially if the agreed trade practices of that industry are commonly accepted. Some also allow adjudicating willingly before non-Jewish tradesmen who are well versed in the customs of that trade, but one cannot summon another to appear before them (Maharshach 2:229).

Q: If a contract explicitly states that any associated disputes should be adjudicated before civil court, does that allow doing so?

A: The clause is understood to mean, instead, that if the litigant will refuse to adjudicate before beis din, he can be sued in civil court. Alternatively, it may be interpreted that the parties obligate themselves before beis din to monetary regulations that are rooted in civil law, such as corporate law, that makes only the corporation’s assets liable (see Tur, C.M. 26; Sma 26:11; Aruch Hashulchan 26:4-5).Since it is generally prohibited to adjudicate before civil court, even if the two parties committed in the contract to do so, this agreement is not halachically binding. The rule of dina d’malchusa dina also does not apply here to require litigation before civil court (see C.M. 26:3-4; Shach 73:39).

Q: Should litigation involving commercial transactions be ruled in accordance with classic Halachah?

A: Although Torah law is eternal, where the common commercial practice (minhag hamedinah) differs from classic Halachah, beis din should rule according to the common practice, since commercial transactions are made with this understanding. This does not violate the prohibition against adjudication by civil law, since the parties did not accept its authority but rather mutually committed themselves to gain or be liable according to the common practice (Pischei Teshuvah, C.M. 3:2; Responsa Maharshach 2:229).

Moreover, some write that for transactions that are valid only on account of situmta (business practice), such as lottery rulings, beis din might even recommend adjudicating before a panel of professionals well acquainted with the business practice, since the halachah here is to rule in accordance with what is fair and just according to the practiced business procedures (Chelkas Yoav, vol. II, addendum, p. 176).

Q: What happens if the defendant ignores the summons of beis din?

A: The defendant is required to heed the summons. If he ignores it and beis din cannot make him appear, they will usually give the plaintiff permission to sue in civil court, to uphold justice. The practice is to summon three times, but, depending on circumstances of the refusal, some batei din suffice with one summons and a warning that if the defendant refuses to appear, beis din will permit the plaintiff to sue in civil court (C.M. 26:2; Aruch Hashulchan 11:1; Minchas Yitzchak 9:155).

On the other hand, if the defendant is willing to appear before another beis din, even elsewhere or of lower stature, he is not considered as refusing to submit to beis din. If his statement seems insincere, though, as an attempt to evade adjudicating, he is considered as refusing to submit and the plaintiff is given permission to sue in civil court (Nesivos 26:13; Aruch Hashulchan 26:5).

Q: In what situations is a person granted permission to litigate in civil court?

A: When the defendant refuses the summons of beis din, some write that beis din will grant permission to sue in civil court only when there is indication that he is liable. However, the general practice nowadays is to grant permission even when beis din does not know whether he is liable (see Nesivos and Aruch Hashulchan 26:2; Erech Shai 26:2).

When a person is sued in civil court without permission of beis din, he should have the plaintiff summoned by beis din to adjudicate there. Otherwise, it would be construed as accepting the civil court as a binding authority. Meanwhile, the defendant is permitted to respond and defend himself against the claim in civil court to prevent loss. (See Rema C.M. 22:2, 388:5; Maharsham 1:89.)

Q: If someone litigated in civil court and lost, can he then turn around and sue in beis din?

A: If the plaintiff lost the case in civil court and then turns around and tries to sue in beis din, there is a dispute among the authorities whether beis din should address the case and summon the defendant. The Rema rules not to, either as a penalty to the plaintiff for suing in civil court or because, through his actions, the plaintiff implicitly accepted the ruling of civil court as binding. Nonetheless, if the decision of the courts was clearly false — even according to civil law — the defendant is still obligated to pay the plaintiff any money that he knows he owes him (C.M. 26:1; Nesivos 26:2).

Even in situations where beis din will address the case, the plaintiff must first cover the defendant’s legal expenses (see Divrei Chaim, C.M. 2:1).

Q: What can I do to make sure that my opponent will comply with beis din’s ruling?

A: Litigants can take legal measures to ensure that their opponent will fulfill beis din’s ruling, especially nowadays when beis din’s own ability to enforce its ruling is limited.

Therefore, each party can demand that the opponent sign an Agreement for Arbitration, to enable legal enforcement of beis din’s ruling. Refusing to sign this is tantamount to refusing to adjudicate (Neos Desheh #51; Maharsham 3:165).

Furthermore, if there is imminent concern that the opponent will hide property, it is sometimes permissible to place seizure measures on property in civil court, even without permission from beis din. However, since this usually requires submitting a claim in civil court, you must summon the other party at the same time to beis din and notify him that you sued in civil court only in order to seize the property. (See Shach, C.M. 75:2; Aruch Hashulchan, C.M. 4:5; Rama MiPano #51.)

Q: Can I secure in civil court or other government agencies legal rights that do not involve adjudication?

A: If this is done willingly by both parties, it is not considered granting authority to a secular law system. Therefore, it is permissible to register in civil court rights that do not require adjudication, for example, to place a lien or mortgage on a borrower’s property or to have the proceedings of the beis din conferred there with legal status (Pischei Teshuvah, C.M. 26:3).

Furthermore, while government agencies that do not have adjudicating authority, such as the Better Business Bureau, might not be included in the prohibition of litigating in civil court, since a complaint there can cause monetary losses not warranted by Torah law and potential legal suits, one should consult with a qualified posek before submitting a complaint against a fellow Jew.

Q: Can I sell a debt from another Jew to a gentile who will sue him in civil court?

A: This is not recommended, but if a Jew sold to a gentile a debt document from another Jew, the sale is valid. The seller must accept upon himself (in a halachically acceptable manner) to reimburse the Jewish borrower for any damage arising from the sale, such as if the gentile will collect more than he is entitled to according to Torah law (C.M. 66:25; Shach 66:85; Chiddushei Rabbi Akiva Eiger 66:25).

However, if the borrower refuses to adjudicate in beis din, it is permissible to sell the document to a gentile to collect in civil court, or to give it to him as payment of a debt to the gentile. Some allow this even if the gentile will collect rights not consonant with Torah law, such as interest penalties (see C.M. 26:4; Shaar Mishpat 26:2).

Q: Can beis din issue a ruling based on a compromise?

A: Halachah favors compromise. Thus, at the outset of the litigation, beis din should offer the litigants the option of compromise. Moreover, it is recommended that the Dayanim avoid attempting to rule only according the letter of the law, due to doubts in Halachah and disputes that have accumulated over the generations. Furthermore, in cases where it is not possible to verify the truth, or where an oath is required, the Dayanim can force a compromise. Ideally, the compromise should not vary from the likely ruling more than a third (pesharah hakrovah ladin). For a compromise to be binding, the parties must make a kinyan sudar beforehand (C.M. 12:2, 5, 7, 20).

Regardless, almost all arbitration agreements signed when litigating in beis din nowadays explicitly authorize beis din to rule according to the letter of the law and/or based on a compromise.

Q: Is mediation (Alternative Dispute Resolution) included in the prohibition against adjudicating in civil court?

A: Mediation (ADR), even with a gentile mediator, is not included in the prohibition, since the mediator is not authorized to issue a legal decision but rather guides the parties to mutual agreement. Therefore, when a person is sued in civil court he should prefer to settle through mediation rather than through a court ruling. Even so, court-ordered mediation is not ideal, since the mediation is initiated through filing a lawsuit and carried out under the shadow of a pending judicial trial.

Private mediation is certainly acceptable; it is even recommended to resolve the conflict through compromise. Although not required, the ideal is to seek a mediator who will try to guide the parties to a settlement close to Halachah (see C.M 12:1; Pischei Teshuvah 12:3).

Q: Is a Jew allowed to serve on a jury in civil court, if called upon by the authorities?

A: If called for jury duty, it is permissible to serve on a jury that is established for dealing with all litigants of the population. Gentiles are also required to establish a legal system, although there is a dispute whether they are supposed to rule according to Torah law or according to their own system. They can also agree collectively to accept disqualified witnesses as valid. (See Responsa of Rema #10; Chasam Sofer vol. VI: likutim #14; Ha’amek She’eilah, Bereishis 2:3).

Since jurors are instructed to rule not only by the strict details of civil law, but also based on their understanding, one can also serve on a jury involving Jews, even if they should be adjudicating in beis din and not in civil court.(See, however, Mishneh Halachos 4:213.)

Q: Are lawyers or rabbinic advocates acceptable in beis din?

A: It is preferable that the Dayanim in beis din hear directly from the litigants, whereby they can get a clearer picture of the truth, similar to the Biblical obligation for witnesses to testify orally. For this reason beis din should also understand the language of the litigant, and if possible not rely on a translator’s interpretation (C.M. 13:3; Sma 12, 17:6, 14; Kovetz Haposkim ad loc.).

Nonetheless, the common practice nowadays is to allow for a legal advocate (to’en) to help a litigant to better voice his position. The to’en may also add halachic arguments in his client’s favor, after the litigant has presented his arguments. It is also common practice to allow a legal advocate to present his client’s arguments if the litigant cannot appear personally in beis din (see C.M. ibid., Aruch Hashulchan 124:2).

A: Is a ruling in beis din subject to appeal?

A: The Gemara (Sanhedrin 88b) describes a hierarchy of batei din when the local beis din is divided or in doubt how to rule. However, there was no formal appeals court for a ruling that was already issued. Nonetheless, if an error is found in the ruling or if new information comes to light, the ruling of beis din can be revoked by the initial beis din or by one of greater authority (C.M. 25:1-3).

On a routine basis, one beis din need not check up after another beis din. However, in intricate matters, nowadays since not all batei din are fully qualified, there is halachic basis for a more qualified beis din to review the decision of another beis din. Many others disagree and permit review only if the first beis din issued its decision pending approval of a greater beis din. Practically speaking, in absence of a beis din hierarchy, the decision of a beis din is final (see C.M. 19:2; Pischei Teshuvah 19:3; Yabia Omer C.M. 2:2; Mishpetei Uziel C.M. 4:1).

Q:  Will I receive a written decision from the beis din?

A: Beis din will usually provide a written copy of the decision to serve as proof of the ruling. On a routine basis, beis din is not required to explain the reasons for their decision. However, if the ruling is surprising, and the litigant feels he was judged unjustly, they should explain the reason to him. (C.M. 14:4)

Similarly, if the litigant requests that beis din write the decision to verify it, they should provide a written summary of the claims and the final ruling. Beis din would have to indicate permission to review their ruling; otherwise another beis din should not intervene. Especially nowadays that litigants come of their own accord and willingly accept the ruling through signing a binding arbitration agreement beforehand, the ruling must be upheld without question (Aruch Hashulchan 14:8; Igros Moshe C.M. 1:76).

Q: Are the litigants and/or witnesses required to stand before the beis din?

A: The Torah states: “The two people who are the litigants should stand before the …. judges” (Devarim 19:17). We derive from this that both the litigants and witnesses should stand; the witnesses when testifying and the litigants when the decision is rendered.

During the proceedings and claims, the beis din can ask the litigants to stand or give them permission to sit, but must treat both litigants equally, both standing or both sitting. A Torah scholar coming before beis din should be respected and allowed to sit, together with his litigant. Some maintain that the litigants should not sit until they are granted permission by the beis din.

If the witnesses or litigants did not stand as required, the testimony and ruling is valid, regardless. Nowadays, it is customary that batei din ask the litigants and witness to sit throughout (C.M. 17:1-3; Pischei Teshuvah 17:4; Aruch Hashulchan 17:5).

Q: Is a Dayan allowed to judge a litigant with whom he is friendly, or with whom he is at odds?

A: The Shulchan Aruch rules that a Dayan may not judge a litigant who is his friend, even if not extremely close, or one with whom he is at odds, even if not his enemy. Although a friend may testify, this is because a witness reports objective evidence, whereas a Dayan must apply reasoning and is more likely to be unintentionally influenced in his thinking. Some allow the Dayan to judge if he is friendly with both parties (C.M. 7:7; Sma 33:1; Pischei Teshuvah 7:11; Aruch Hashulchan 7:14).

The Rema, however, rules that the Dayan may judge if he is not a very close friend or an enemy, although some refrain from judging any friend as a stringency. Furthermore, the litigant must bring evidence if he wants to disqualify a Dayan on the basis of friendship or enmity.

If the litigant willingly accepted the Dayan or willingly came before him, he certainly may rule (C.M. 22:1; Shach 7:15).

Q: When is a person required to testify in beis din?

A: The Torah (Vayikra 5:1) states that if a witness withholds testimony he bears sin. Therefore, a person who knows testimony, who is qualified to testify, and whose testimony is of legal consequence, is required to testify if called upon by the litigants. According to some authorities, he is required to come and testify even if not called upon.

A single witness is also required to testify, since his testimony is of legal consequence in order to impose an oath. A relative, who is disqualified as a witness, is not required to testify, unless the litigants agree to accept him as a witness.

A witness who withheld testimony and thereby caused the litigant a loss does not bear an enforceable liability, but is liable b’dinei Shamayim. If the litigant grabbed payment for the loss from the witness, he must return it according to most authorities (C.M. 28:1; Pischei Teshuvah 28:1, 4, 6).

Q: Can witnesses receive payment for their testimony in beis din?

A: The testimony of one who takes payment to testify is invalid (Bechoros 29a). If the witness was paid to state a specific testimony, he is certainly disqualified and considered an interested party (noge’a b’davar). However, if he was paid to state whatever testimony he knows regarding the case, according to most authorities the disqualification of his testimony is a Rabbinic penalty. Thus, if the witness returned the money, his testimony becomes valid (Rema, C.M. 34:18; Pischei Teshuvah 34:24-25).

Nonetheless, if the witness incurred a loss in coming, such as travel expenses or lost wages, he is entitled to ask for compensation (see C.M. 9:4).

Furthermore, someone who undertakes to become a witness — e.g., to sign a kesubah, get or other legal document — is allowed to receive payment. Some maintain that he should be paid by both parties (see Nesivos 34:10; Pischei Choshen, Sechirus 8:45).

Q: Which relatives are disqualified from serving as witnesses in beis din?

A: The Torah disqualifies witnesses who are relatives of one of the litigants, one of the Dayanim, or of each other — whether to exempt or obligate (C.M. 33:10, 17).

As a rule of thumb, first-degree relatives (e.g., parent–child or siblings) and second-degree relatives (e.g., grandparent–grandchild, uncle–nephew, or first cousins) are disqualified; third-degree relatives are allowed (e.g., second cousins or even first cousins once removed). There is a dispute regarding great-grandparents–grandchildren and great-uncles–nephews, and they should not testify (C.M. 33:2).

Husband and wife are generally considered the same. Thus, a witness disqualified as a relative also cannot testify for the relative’s spouse. However, the unrelated spouses of two first cousins can testify (C.M. 33:3-4).

Mechutanim (a pair of in-laws) are allowed to testify for/with each other, if they don’t have a vested interest in the case (C.M. 33:6).

Q: Can a person with a vested interest in the case testify in beis din?

A: A witness who has a monetary interest in a case, even indirectly (nogei’a badavar), is disqualified from testifying. The determination of indirect interest depends on the Dayan’s evaluation. Most authorities explain the disqualification as concern that the witness might lie, or distort the truth, on account of his personal interest (C.M 37:1,21; SM”A 37:1).

Therefore, such a witness is permitted to testify to his detriment. Additionally, if he dissociates himself from any monetary connection, he may now testify, even if he witnessed the incident while he had an interest. However, if the witness signed a document when he had an interest, the document remains invalid even after he dissociates himself (C.M. 33:15; Pischei Teshuvah 33:9).

If the witness has no interest at the moment, but might have in the future, whether he is qualified depends mostly on the likelihood. (See C.M. 37:10; Ketzos 37:5; Pischei Choshen, Eidus 2:36 [74].)