Shabbat Parashat Miketz| 5767
Paying for Court-related Expenses - Based on Piskei Din Rabbaniim - vol. VI, pp. 81-89
Case: The plaintiff (=pl)and the defendant (=def)ended the business partnership between them. Def continued the business but did not immediately pay pl. Def was obligated to swear how much of his money was pl’s share of the business and since he did not swear, beit din obligated him to pay a third of the claim. Pl demands reimbursement for the expenses incurred because def did not pay until beit din ruled, for his failure to appear at some hearings, and for the profits that the joint money earned during the period of adjudication.
Ruling: The Shulchan Aruch (Choshen Mishpat 14:5) rules: “He who loses a judgment is not required to pay the opposing litigant for his expenses … however, if he refused to come to court and the plaintiff had to spend money to force him to adjudicate, he must pay for those expenses.” The Yeshu’ot Yisrael adds that if a plaintiff forces the defendant to adjudicate based on fabricated claims, he has to pay the defendant’s expenses. Similarly, Piskei Din Rabani’im III, p. 18 says that when the defendant unreasonably pushes off the plaintiff, he has to pay the expenses. However, that is a difficult extension for the following reason. The Shulchan Aruch (CM 386:3, based on the Rambam), says that if one intentionally but indirectly causes damages to another, he has to pay. However, the Rama accepts the Rosh’s opinion that one cannot obligate another to pay for indirect, non-physical damage. Out of doubt, one cannot extract payment. That which we obligate the one who caused expenses for refusing to come to court is an injunction for disregarding the court.
Both parties share the court’s charges, as the Shulchan Aruch (CM 13:3) says that both sides pay the scribe to record claims. When the litigants agreed to attend a given hearing and one of them did not show up, he has to pay for directly related expenses. This is based on the Rama (CM 14:5), who says that if one tells his counterpart that he will follow him to court and he does not, he has to pay expenses. One does not have to pay for the other litigant’s loss of time from work, because one who prevents his friend from going about his business cannot be forced to pay.
Regarding the partnership money that def withheld and prevented pl from using to earn, the situation is as follows [in greatly abbreviated form]. The Rama (CM 292:7) rules that if one holds on to his friend’s money and earns from it after the owner asked for the money so that he could earn, the one who withholds has to pay the profits. The Shach (CM 297:15) accepts the opposing opinion that he does not have to share the money earned improperly. This is because the one who withheld acted as a thief; a thief has to pay only according to its value at the time it was stolen. Regarding withheld loans, there is further reason not to pay for the lender’s lost earnings, as this would be forbidden usury.
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