Financial Disputes – Only In Beis Din!

Question

The apartment owners were fed up. The building contractor used every excuse in
the book to avoid fulfilling his obligations. There was no choice but to take
him to court. As he was also a Jew, they should really take him to Beis Din.
However, many of the apartment owners argued that since he was not an observant
Jew, he would not turn up in Beis Din in any case. “Let us not waste time and
go straight to the civil court. We will end up there in any case!” Yisrael,
one of the owners, is far from convinced that this is the correct course of
action. “Don’t we first have to receive permission from Beis Din before
taking the case to the civil court?” he asks. Who is right?


Answer

The Shulchan Oruch rules (Choshen Mishpot
26:1) that it is forbidden to bring a case before a civil court even if it is
known that the way they rule in this particular case is exactly the same as the halocho
(Jewish law). This law is derived from the verse (Shemos 21:1),
“And these are the laws you shall present before them.” Our Sages inform us
(Tractate Gittin 88b) that this verse comes to teach us that even if the
laws are the same in the non-Jewish court, one may only “present before them
– the judges of the Beis Din. Even if the two parties agree to take the case
to the civil court, it is still forbidden to do so. One who violates this law is
considered to have committed an extremely serious transgression. The Shulchan
Oruch
classifies him as “a wicked person”, his action being the
equivalent of blasphemy and as if he had lifted up his hand against the Torah.
The Remo adds that Beis Din have the right to excommunicate the
transgressor, or any person who encourages him. Furthermore, if he took his
claim to the civil court and lost the case, Beis Din will subsequently refuse to
deal with his claim. However, the Nesivos (Note 2) points out that if the
other party knows he is really liable, he should voluntarily do his duty and pay
his debt.

What happens if one has a claim against a person who
refuses to appear before Beis Din? The Shulchan Oruch describes the
procedure to be followed in Paragraph 2. This person is first summoned to Beis
Din. If he does not attend the hearing, he is summoned on another two occasions
(Sema No.8). If he persistently fails to show up, the Beis Din issues a
document knows as a Ksav Siruv (Notice of refusal to appear before
Beis Din) and gives the claimant permission to take the case to the civil court
for adjudication. The only reason for giving such permission is to save the
claimant from financial loss. Therefore, Beis Din must be convinced that there
is some basis to his claim before granting such permission. The claimant will
have to back his claim with documentary evidence or some other form of proof. If
this is not available, he will have to show that he at least has a strong case,
even if it falls short of conclusive proof (Oruch Hashulchan). Since
leave to present the case to a civil court is only given in order to enable the
claimant to recover what is rightfully his, once he receives the civil court’s
ruling he must take it back to Beis Din for examination. They will guide him how
to proceed.

We can therefore conclude that the apartment owners must
first summon the building contractor to Beis Din. They may not go directly to
the civil court even if they are convinced that the contractor will not come to
Beis Din. If he does not attend after three summonses, Beis Din will give them
permission to take the case to the civil court. One should note that
non-observant Jews do sometimes respond to a summons to Beis Din. Furthermore,
the ruling of a Beis Din is often enforceable through the civil authorities.
This is the case in Eretz Yisrael and some other countries. May all Jews soon
see the light of the Torah!