Secular Court: Difference between revisions

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[[File:SCOTUSbuilding 1st Street SE.JPG|thumbnail|right|Supreme Court of the United States Building, Washington, DC, as seen from the west side of 1st St NE. (Courtesy of Wikipedia)]]
[[File:SCOTUSbuilding 1st Street SE.JPG|thumbnail|right|Supreme Court of the United States Building, Washington, DC, as seen from the west side of 1st St NE. (Courtesy of Wikipedia)]]
The Torah has poignantly unforgiving words for those who abandon its lofty and complete system of resolving monetary disputes judged by Divinely assisted judges in favor of civil or secular courts. The prohibition applies even if both parties agree to bring their case to a civil court.<ref>Shemot 21:1, Rashi and Ramban ad loc., Gittin 88b, Rambam Hilchot Sanhedrin 26:7, Shulchan Aruch Choshen Mishpat 26:1.</ref> Similarly, the prohibition applies even if the non-Jewish justices reach the same conclusion as a Jewish court would.<ref>Shulchan Aruch ibid. Sama Choshen Mishpat 26:2.</ref>
== The Gravity of Taking Another Jew to Secular/Civil Court ==
== The Gravity of Taking Another Jew to Secular/Civil Court ==
The Torah has poignantly unforgiving words for those who abandon its lofty and complete system of resolving monetary disputes judged by Divinely assisted Dayanim in favor of civil or secular courts run by non-Jewish justices. The prohibition applies even if both parties agree to bring their case to a civil court. <ref>Shemot 21:1, Rashi and Ramban ibid, Gittin 88b, Rambam Hilchot Sanhedrin 26:7, Shulchan Aruch Choshen Mishpat 26:1.</ref> Similarly, the prohibition applies even if the non-Jewish justices reach the same conclusion as a Jewish court would.<ref>Shulchan Aruch ibid. SMA Choshen Mishpat 26:2.</ref>
# Even if it's a case where one is permitted to take the law into his own hands (Avid Inash Dina LeNafsheh), one may not take another Jew to secular court.<ref>Darkei Moshe Choshen Mishpat 26:1, Sama 26:1</ref>
# Certainly, one may not hire non-Jews to force another Jew to come to court. Instead, he should follow the procedure outlined below regarding instances in which one is permitted to take another Jew to court.<ref>Rama Choshen Mishpat 26:1</ref>
# It is permitted to take a non-Jew who isn't interested in coming to Bet Din to a civil court. It is even permitted for a Jew to go to court to extract money from the insurance company of another Jew since it is readily understood that it is a case between the Jew and insurance company and not between two Jews.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 168) citing Rav J. David Bleich</ref>


* Even if it's a case where one is permitted to take the law into his own hands (Avid Inash Dina LeNafsheh), one may not take another Jew to secular court.<ref>Darkei Moshe Choshen Mishpat 26:1, SMA 26:1</ref>  
==Israeli Courts==
# The poskim consider the Israeli court system to be a secular court system because it does not run according to Torah law. Therefore, it is forbidden for a Jew to bring another Jew to an Israeli secular court.<ref>Rabbi Jachter (Gray Matter v. 2 p. 167) citing Yachava Daat 4:65, Chazon Ish Sanhedrin 15:4, Rav Herzog in Hatorah Vhamedina 7:9-10, Tzitz Eliezer 12:82, Shevet Halevi 10:263, Teshuvot Vehanhagot 1:795</ref>
# It is forbidden to be a judge in a secular Israeli court.<ref>Yachava Daat 4:65. See Bet Avi 2:144. Rabbi Jachter (Gray Matter v. 2 p. 172 fnt. 18) cites Rav Messas in Shemesh Umagen EH 3:44 as agreeing. </ref>


* Certainly, one may not hire non-Jews to force another Jew to come to court. Instead, he should follow the procedure outlined below regarding instances in which one is permitted to take another Jew to court.<ref>Rama Choshen Mishpat 26:1</ref>
==Arbitration Boards==
== Exceptions ==
# It is permitted to bring another Jew to an arbitration board even if it doesn't follow Torah law as it doesn't constitute a court of law at all.<ref>Sanhedrin 23a, Rabbi Jachter (Gray Matter v. 2 p. 169) citing Tzitz Eliezer 11:93 and Piskei Din Batei Din Harabaniyim 13:330-335</ref>
If one has a monetary dispute and the other party refuses to come to Beit Din after receiving the appropriate invitation, he may request permission from the Beit Din to take his opponent to civil court. If the Beit din already reached a verdict and the guilty party refuses to pay, even the Dayanim may go bear witness in an upstanding civil court that according to Torah law the man is guilty. The same is true if Beit Din would be unable to carry out the verdict due to the opponent's physical strengths. <ref>Shulchan Aruch Choshen Mishpat 26:2. Regarding the upstanding nature of the secular court at hand, the language used by Rav Shererah Gaon (quoted in Beit Yosef ibid) requires the court to boast a reputation that shuns bribery; however, the Rama for some reason omits this parameter. The SMA 26:9 is left in a state of confusion, while the Shach 26:4 reasons that if the Dayanim's efforts will be fruitless, as their testimony will not be accepted in light of a bribe, then they may not testify,. On the other hand, if they will be heard out in earnest, and there's just a chance that there will be deceitful actions that follow on part of the civil court, then they may testify. Therefore the Rama omitted the point about bribes. See Gittin 11a.</ref>
#There is a major dispute whether it is permitted to use a arbitration board that consists of non-Jews.<Ref>See Shach CM 22:15 who seems to allow acceptance of a non-Jewish arbitrator judging based on common sense and not law, while the Netivot 22:14 forbids it. Aruch Hashulchan 22:8 is lenient. Rabbi Jachter (Gray Matter v. 2 p. 169) quotes Rav Hershel Schachter and Rav J. David Bleich (Bnetivot Hahalacha 2:169) as holding like the Netivot.</ref>
 
==Exceptions==
===Non-Compliant Litigant===
#If one has a monetary dispute and the other party refuses to come to Beit Din after receiving the appropriate invitation, he may request permission from the Beit Din to take his opponent to civil court. If the Beit din already reached a verdict and the guilty party refuses to pay, even the Dayanim may go bear witness in an upstanding civil court that according to Torah law the man is guilty. The same is true if Beit Din would be unable to carry out the verdict due to the opponent's physical strengths.<ref>Shulchan Aruch Choshen Mishpat 26:2. Regarding the upstanding nature of the secular court at hand, the language used by Rav Shererah Gaon (quoted in Beit Yosef ibid) requires the court to boast a reputation that shuns bribery; however, the Rama for some reason omits this parameter. The Sama 26:9 is left in a state of confusion, while the Shach 26:4 reasons that if the Dayanim's efforts will be fruitless, as their testimony will not be accepted in light of a bribe, then they may not testify. On the other hand, if they will be heard out in earnest, and there's just a chance that there will be deceitful actions that follow on part of the civil court, then they may testify. Therefore the Rama omitted the point about bribes. See Gittin 11a.</ref>
===Freezing Property===
# It is permitted to request that a civil judge file a preliminary injunction to freeze the status quo of a property until its owner is verified. This doesn't entail a verdict and therefore can be done in civil court.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 168) citing Igrot Moshe CM 2:11</ref>
===Collecting Undisputed Money===
# One can use a civil court to collect undisputed money.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 168) citing Rav Mordechai Eliyahu (Techumin 3:244)</ref>
# Probate of an undisputed will is permitted in civil court.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 168) citing Rav J. David Bleich (Tradition 34:3:74)</ref>
===Bankruptcy===
# One may file for bankruptcy in civil court.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 168) quoting Rav Hershel Schachter</ref>
 
==Equitable Distribution==
# It is permitted to sign a pre-nuptial agreement in which they agree that upon divorce the Bet Din could divide the property according to civil equitable distribution law.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 170) citing Rav Zalman Nechemya Goldberg (Yeshurun 11:698) and Rabbi Mordechai Willig unlike Rabbi J. David Bleich (Tradition 34:3 and Bnitvot Hahalacha 2:169-172) who forbids based on Taz 26:3. In the c</ref> Bet Din of America includes this as one of the optional clauses in its [https://res.cloudinary.com/orthodox-union/image/upload/v1574874396/prenup/Standard-Prenup-Rev-Nov-2018.pdf prenup].
# One of the conditions in the standard [https://mekorjudaica.com/ketubah-sephardic.html Syrian Ketubah] and for other Sephardim as well, that dated back centuries, is that the assets are divided equally.<ref>Rav Avraham Antebi from the beginning of the 1800s in Chachma Umussar (Chukei Nashim n. 45) mentions this text of the ketubah. It can also be found in Degel Machaneh Efraim EH 3, Nochach Hashulchan EH 15, Zev Ketav Yadi EH 3, and Mishpat Haketubah v. 4 p. 124. Mishpat Haketubah sources this minhag back to the Radvaz and Maharalbach although some wrote that it was divided equally according to the minhag of Yerushalayim as opposed to Damascus out of honor of Israel.</ref>
 
==Jury Duty==
# It is permitted to serve on jury duty.<Ref>Rabbi Jachter (Gray Matter v. 2 p. 173) citing Rav Hershel Schachter and Bet Avi 2:144 unlike the Mishna Halachot 4:213 who forbids it.</ref>
== Agreements, Stipulations, and Penalties ==
== Agreements, Stipulations, and Penalties ==


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== External Links ==
== External Links ==
* "The Prohibition Against Using Civil Courts," Gray Matter, vol. 2, Rav Chaim Jachter, page 164. (Also available in two articles online: [http://www.tabc.org/kol-torah/article/index.aspx?pageaction=ViewSinglePublic&LinkID=507&ModuleID=43&StartDate=11/30/2012 Part 1], [http://www.tabc.org/kol-torah/article/index.aspx?pageaction=ViewSinglePublic&LinkID=513&ModuleID=43&StartDate=12/7/2012 Part 2])
* "The Prohibition Against Using Civil Courts," Gray Matter, vol. 2, Rav Chaim Jachter, page 164. (Also available in two articles online: [http://www.tabc.org/kol-torah/article/index.aspx?pageaction=ViewSinglePublic&LinkID=507&ModuleID=43&StartDate=11/30/2012 Part 1], [http://www.tabc.org/kol-torah/article/index.aspx?pageaction=ViewSinglePublic&LinkID=513&ModuleID=43&StartDate=12/7/2012 Part 2])
* Rabbi Mordechai Willig's five part serio[http://www.yutorah.org/lectures/lecture.cfm/840667/rabbi-mordechai-i-willig/sanhedrin-shiur-9-going-to-secular-court-part-1/ five part series on going to secular court], article on the [http://jlaw.com/Articles/ThePrenuptialAgreement.pdf Prenuptial Agreement], and [http://www.yutorah.org/search/?teacher=80215&category=0,234029 Yadin Yadin Shiurim] also covering the details of using a secular court or secular law in Beit Din.
* Rabbi Mordechai Willig's [http://www.yutorah.org/lectures/lecture.cfm/840667/rabbi-mordechai-i-willig/sanhedrin-shiur-9-going-to-secular-court-part-1/ five part series on going to secular court], article on the [http://jlaw.com/Articles/ThePrenuptialAgreement.pdf Prenuptial Agreement], and [http://www.yutorah.org/search/?teacher=80215&category=0,234029 Yadin Yadin Shiurim] also covering the details of using a secular court or secular law in Beit Din.
* [https://bethdin.org/ Beth Din of America]
* [http://businesshalacha.com/en/folder-money-matters/beis-din-and-civil-court Beis Din and Civil Court, BusinessHalacha.com]
* “[http://www.amazon.com/s/ref=dp_byline_sr_ebooks_1?ie=UTF8&text=Dayan+Shlomo+Cohen&search-alias=digital-text&field-author=Dayan+Shlomo+Cohen&sort=relevancerank Pure Money]” by Dayan Shlomo Cohen, pages 211-214.
* [http://www.jlaw.com/Articles/Confirming%20Piskei%20Din.pdf Confirming Piskei Din], Rabbi Yaacov Feit and Dr. Michael A. Helfand
* [http://www.workplacehalacha.com/category/choshen-mishpat/arkaos-secular-court/ Shiurim on WorkplaceHalacha.com]


==Sources==
==Sources==
<references/>
<references/>

Latest revision as of 21:11, 15 July 2020

Supreme Court of the United States Building, Washington, DC, as seen from the west side of 1st St NE. (Courtesy of Wikipedia)

The Torah has poignantly unforgiving words for those who abandon its lofty and complete system of resolving monetary disputes judged by Divinely assisted judges in favor of civil or secular courts. The prohibition applies even if both parties agree to bring their case to a civil court.[1] Similarly, the prohibition applies even if the non-Jewish justices reach the same conclusion as a Jewish court would.[2]

The Gravity of Taking Another Jew to Secular/Civil Court

  1. Even if it's a case where one is permitted to take the law into his own hands (Avid Inash Dina LeNafsheh), one may not take another Jew to secular court.[3]
  2. Certainly, one may not hire non-Jews to force another Jew to come to court. Instead, he should follow the procedure outlined below regarding instances in which one is permitted to take another Jew to court.[4]
  3. It is permitted to take a non-Jew who isn't interested in coming to Bet Din to a civil court. It is even permitted for a Jew to go to court to extract money from the insurance company of another Jew since it is readily understood that it is a case between the Jew and insurance company and not between two Jews.[5]

Israeli Courts

  1. The poskim consider the Israeli court system to be a secular court system because it does not run according to Torah law. Therefore, it is forbidden for a Jew to bring another Jew to an Israeli secular court.[6]
  2. It is forbidden to be a judge in a secular Israeli court.[7]

Arbitration Boards

  1. It is permitted to bring another Jew to an arbitration board even if it doesn't follow Torah law as it doesn't constitute a court of law at all.[8]
  2. There is a major dispute whether it is permitted to use a arbitration board that consists of non-Jews.[9]

Exceptions

Non-Compliant Litigant

  1. If one has a monetary dispute and the other party refuses to come to Beit Din after receiving the appropriate invitation, he may request permission from the Beit Din to take his opponent to civil court. If the Beit din already reached a verdict and the guilty party refuses to pay, even the Dayanim may go bear witness in an upstanding civil court that according to Torah law the man is guilty. The same is true if Beit Din would be unable to carry out the verdict due to the opponent's physical strengths.[10]

Freezing Property

  1. It is permitted to request that a civil judge file a preliminary injunction to freeze the status quo of a property until its owner is verified. This doesn't entail a verdict and therefore can be done in civil court.[11]

Collecting Undisputed Money

  1. One can use a civil court to collect undisputed money.[12]
  2. Probate of an undisputed will is permitted in civil court.[13]

Bankruptcy

  1. One may file for bankruptcy in civil court.[14]

Equitable Distribution

  1. It is permitted to sign a pre-nuptial agreement in which they agree that upon divorce the Bet Din could divide the property according to civil equitable distribution law.[15] Bet Din of America includes this as one of the optional clauses in its prenup.
  2. One of the conditions in the standard Syrian Ketubah and for other Sephardim as well, that dated back centuries, is that the assets are divided equally.[16]

Jury Duty

  1. It is permitted to serve on jury duty.[17]

Agreements, Stipulations, and Penalties

Inheritance

See Also

External Links

Sources

  1. ↑ Shemot 21:1, Rashi and Ramban ad loc., Gittin 88b, Rambam Hilchot Sanhedrin 26:7, Shulchan Aruch Choshen Mishpat 26:1.
  2. ↑ Shulchan Aruch ibid. Sama Choshen Mishpat 26:2.
  3. ↑ Darkei Moshe Choshen Mishpat 26:1, Sama 26:1
  4. ↑ Rama Choshen Mishpat 26:1
  5. ↑ Rabbi Jachter (Gray Matter v. 2 p. 168) citing Rav J. David Bleich
  6. ↑ Rabbi Jachter (Gray Matter v. 2 p. 167) citing Yachava Daat 4:65, Chazon Ish Sanhedrin 15:4, Rav Herzog in Hatorah Vhamedina 7:9-10, Tzitz Eliezer 12:82, Shevet Halevi 10:263, Teshuvot Vehanhagot 1:795
  7. ↑ Yachava Daat 4:65. See Bet Avi 2:144. Rabbi Jachter (Gray Matter v. 2 p. 172 fnt. 18) cites Rav Messas in Shemesh Umagen EH 3:44 as agreeing.
  8. ↑ Sanhedrin 23a, Rabbi Jachter (Gray Matter v. 2 p. 169) citing Tzitz Eliezer 11:93 and Piskei Din Batei Din Harabaniyim 13:330-335
  9. ↑ See Shach CM 22:15 who seems to allow acceptance of a non-Jewish arbitrator judging based on common sense and not law, while the Netivot 22:14 forbids it. Aruch Hashulchan 22:8 is lenient. Rabbi Jachter (Gray Matter v. 2 p. 169) quotes Rav Hershel Schachter and Rav J. David Bleich (Bnetivot Hahalacha 2:169) as holding like the Netivot.
  10. ↑ Shulchan Aruch Choshen Mishpat 26:2. Regarding the upstanding nature of the secular court at hand, the language used by Rav Shererah Gaon (quoted in Beit Yosef ibid) requires the court to boast a reputation that shuns bribery; however, the Rama for some reason omits this parameter. The Sama 26:9 is left in a state of confusion, while the Shach 26:4 reasons that if the Dayanim's efforts will be fruitless, as their testimony will not be accepted in light of a bribe, then they may not testify. On the other hand, if they will be heard out in earnest, and there's just a chance that there will be deceitful actions that follow on part of the civil court, then they may testify. Therefore the Rama omitted the point about bribes. See Gittin 11a.
  11. ↑ Rabbi Jachter (Gray Matter v. 2 p. 168) citing Igrot Moshe CM 2:11
  12. ↑ Rabbi Jachter (Gray Matter v. 2 p. 168) citing Rav Mordechai Eliyahu (Techumin 3:244)
  13. ↑ Rabbi Jachter (Gray Matter v. 2 p. 168) citing Rav J. David Bleich (Tradition 34:3:74)
  14. ↑ Rabbi Jachter (Gray Matter v. 2 p. 168) quoting Rav Hershel Schachter
  15. ↑ Rabbi Jachter (Gray Matter v. 2 p. 170) citing Rav Zalman Nechemya Goldberg (Yeshurun 11:698) and Rabbi Mordechai Willig unlike Rabbi J. David Bleich (Tradition 34:3 and Bnitvot Hahalacha 2:169-172) who forbids based on Taz 26:3. In the c
  16. ↑ Rav Avraham Antebi from the beginning of the 1800s in Chachma Umussar (Chukei Nashim n. 45) mentions this text of the ketubah. It can also be found in Degel Machaneh Efraim EH 3, Nochach Hashulchan EH 15, Zev Ketav Yadi EH 3, and Mishpat Haketubah v. 4 p. 124. Mishpat Haketubah sources this minhag back to the Radvaz and Maharalbach although some wrote that it was divided equally according to the minhag of Yerushalayim as opposed to Damascus out of honor of Israel.
  17. ↑ Rabbi Jachter (Gray Matter v. 2 p. 173) citing Rav Hershel Schachter and Bet Avi 2:144 unlike the Mishna Halachot 4:213 who forbids it.
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