Mr. Braun received legal notice: Mr. Rubin was demanding $50,000 payment due.
“I owe no more than $10,000,” replied Mr. Braun. “I’m willing to pay that amount immediately to settle the issue.”
“Our records indicate $50,000,” came the response. “If the full amount is not paid, we will proceed to take legal action in court.”
“I deny owing that amount,” replied Mr. Braun. “If there is need for litigation, though, I request that we adjudicate in a Jewish beis din.”
“We refuse to mediate in beis din,” Mr. Rubin’s lawyer responded. “In light of your denial, we are filing a suit in civil court.”
Mr. Braun received a summons for a court hearing. After some deliberation, the judge dismissed the case. Mr. Braun walked out feeling great. Not only was Mr. Rubin’s claim rejected but Mr. Braun was exempted even from the $10,000 he actually owed.
A short time later, Mr. Rubin filed a claim in beis din. Mr. Braun alerted the dayanim that he initially wanted to adjudicate in beis din, but Mr. Rubin had refused. “The case was already heard in civil court, and dismissed,” he said. “I’m not interested in adjudicating again.”
When the beis din heard this, it decided not to accept the case. “We generally don’t accept cases that have already been adjudicated in civil court, unless both sides want to readjudicate.”
“So I’m completely free?” Mr. Braun asked Rabbi Dayan. ” Am I obligated to pay the amount I know I owe?”
“According to many authorities, yes,” replied Rabbi Dayan, “even though beis din refrains from accepting the case, but some exempt.”
“Can you please explain?” asked Mr. Braun.
“Rama [C.M. 26:1] sides with the opinion that beis din should refrain from adjudicating a case that the plaintiff previously brought to civil court and lost,” explained Rabbi Dayan. “Rav Yonasan Eibshutz, in Tumim [26:2] questions this ruling: Even if the civil court ruled against the plaintiff, what exempts the defendant from his obligation according to Torah law?”
“Tumim provides two explanations,” continued Rabbi Dayan. “One, the Rama follows his own ruling [C.M. 22:2] that although a Jew is not allowed to accept the authority of a non-Jewish judge, after adjudicating before him the person cannot retract, as he implicitly accepted the judge as qualified. However, the Shach [22:15] questions this ruling and further requires a formal kinyan sudar of this acceptance.”
“What is the second explanation?” asked Mr. Braun.
“Since the plaintiff violated halacha by adjudicating in civil court, as a penalty to him beis din declines to look after his interests,” replied Rabbi Dayan. “The Gra [26:4] indicates this reason as well.”
“Is there a practical difference between these two reasons?” asked Mr. Braun.
“In a case where the defendant bribed the non-Jewish judges in his favor, that ruling is null and void, so that the first reason would not apply,” replied Rabbi Dayan. “Nonetheless, the Nesivos [26:2] suggests that second reason of penalty, which he considers primary, still applies, so that beis din should decline the case regardless.”
“What about my question?” asked Mr. Braun.
“Nesivos and Aruch HaShulchan [26:1] write that although beis din avoids adjudicating the case, the defendant remains obligated to pay what he owes,” replied Rabbi Dayan.
“Even if he is unsure, he should consult the beis din to avoid potential theft. However, according to Tashbetz [3:86], since the parties went to adjudicate before the civil court, it is like they accepted upon themselves to judge in that manner and forwent their rights according to Torah law,” concluded Rabbi Dayan.
“Tumim also implies that since you are holding the money, you can rely on the Rama’s ruling [22:2] that the non-Jew’s decision is valid post facto and you would not have to pay.” (See also Maharsham 1:89; Minchas Pittim C.M. 26)
Rabbi Meir Orlian