Shabbat Parashat Devarim 5771
P'ninat Mishpat: Beit Din Ruling Based on Secular Law(based on Shurat Hadin, vol. VIII, pp. 86-92)
There was a fundamental machloket between the regional and supreme rabbinical courts regarding a case where litigants committed in advance to have their interactions governed by relevant non-Torah laws, but they came to beit din to adjudicate in that context. There are three approaches beit din could take: 1. Refuse to hear the case, having it to go to secular court (regional court); 2. Hear the case, following Torah law; 3. Hear the case, applying the non-Torah laws the sides accepted (supreme court). A halachic analysis follows.
The Shut Harosh (18:4) discusses a case of two people who formally accepted upon themselves to adjudicate according to penalties the non-Jewish courts levy. The Rosh says that as long as the defendant is willing to go to beit din, the plaintiff cannot sue him in non-Jewish court. Although the Shulchan Aruch (Choshen Mishpat 26:3) accepts the Rosh in a straightforward manner, the S’ma (26:11) makes the following distinction. If the laws the non-Jewish courts are based on give one party the rights to money not coming to him by Torah law, then a kinyan to accept their laws is a binding monetary obligation. Elsewhere (61:14) he clarifies that in such cases, beit din should rule according to the non-Jewish laws he accepted, unless they violate a Torah law, e.g., forcing someone to pay after Shemitta. The Netivot Hamishpat (26:10) agrees with the S’ma. While the Shulchan Aruch (CM 61:6) seems to argue, the Gra (ad loc. 23) says that acceptance of a non-Torah rule does work to create new monetary obligations; it just cannot create new rules of adjudication and enforcement.
The Taz (26:3) seems to categorically reject the S’ma, saying that such an obligation is a “condition against the Torah” and therefore void. This is difficult since such conditions are valid regarding money (Shulchan Aruch, Even Haezer 38:5), but apparently the Taz views this stipulation as beyond monetary by giving preference to a non-Jewish system. The S’ma must see it as accepting a specific monetary provision, and thus striving to follow the non-Jews’ rules in order to know what the sides halachically accepted upon themselves does not disgrace the Torah system. The Birkei Yosef (CM 26:8) argues that if the sides accepted the monetary consequences of going to non-Jewish court, this removes any theft involved in benefiting from the ruling , but this does not remove the violation of going to non-Jewish courts.
According to most of the opinions we have seen, beit din has no right to give the matter over to the secular courts. Because of the acceptance of the secular rules, beit din will have to rely on the opinions that it can rule according to non-Torah laws. The Birkei Yosef distinguishes between cases where the acceptance was to adjudicate before the non-Jewish court, where there is a machloket if beit din may use their rules, and a case where the agreement was to go to beit din to apply the non-Jewish rules, which works according to all opinions.
Therefore, in our case, beit din should hear the case according to the laws accepted.
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Louis and Lillian Klein, z”l
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Yehuda Leib Usdan a"h,
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