Editor’s Note: What follows is a new weekly column featuring a translation and explanation of the sections of the Shulchan Aruch, Choshen Mishpat, (the Jewish code of business law) that deal with the laws of litigation.
The translation and explanations provided by Ner Eyal on Choshen Mishpat are based on many of the classic commentaries on the Shulchan Aruch and the Tur and primarily on the Sma (Sefer Me’irat Einayim) and the derisha and perisha by Rabbi Yehoshua Falk Hakohen Katz.
The author of Ner Eyal on Choshen Mishpat is Samson Raphael Grunfeld, whose column Ner Eyal on the Talmud (formerly known as Talmud Topics) has been running in The Jewish Press for many years and will continue to appear in addition to this new column. He is the son of the late Dayan Grunfeld of the London Beit Din, who was the author of “The Sabbath” and ‘The Jewish Dietary laws” and the translator of the works of Rabbi Samson Raphael Hirsch.
After studying Talmud at Gateshead Yeshiva in England, Raphael received his Bachelor of Laws degree from Tel Aviv University and his Master of Laws degree from London University. A member of the New York and Israel bars, he practiced law as a litigator in Israel for twelve years, including at the law firm of Isaac Tunik, the then-head of the Israel Bar and later Israel’s state comptroller. In 1985 Raphael moved to New York where he first was an associate at Skadden, Arps, Slate, Meagher & Flom LLP and general counsel to two public companies before becoming a partner at Morrison & Foerster LLP. Since 2001 he has been a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, where he specializes in cross-border mergers and acquisitions.
Raphael is also the author of the new “Ner Eyal, a Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim ” (2016) and “Ner Eyal, a Guide to the Laws of Shabbat and Festivals in Seder Moed,” published by the OU in 2001 and available in Jewish bookstores.
Raphael received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Maran Hagaon Harav Dovid Feinstein, Shlitah.
Similar to Ner Eyal on the Talmud, Ner Eyal on Choshen Mishpat aims to convey complex, Jewish legal concepts in simple, user-friendly language. It does not purport to decide halachic issues. For a p’sak, please consult your posek.
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Siman 75
Whether Litigants Must Specify Their Claims
Sa’if 1: A plaintiff suing for money must specify to the court the details of his claim. Is the claim grounded in the non-payment of a loan, the non-return of a deposit or is it a claim for damages. These specifics are required because, although the plaintiff might believe the defendant owes him money, he may not be entitled to the money at law. Similarly the defendant who responds that there is no claim against him or that he does not owe the plaintiff anything, must specify to the court the details of his defense. Here too, although the defendant might believe he does not owe the plaintiff any money, he may not be entitled to his defense at law. Even if the litigant is an expert in matters of Jewish business law, he must still specify his case.
Rema: If the litigant refuses to specify his claim, the judge may strike the claim if he believes the refusal is driven by a fraudulent motive. Alternatively, he may adjudicate the claim if he believes the omission is due to ignorance or an inability to articulate.
Ner Eyal: This Sa’if deals with the need for the litigants to be specific in their pleadings. The reason for this is that a plaintiff may mistakenly believe he has a legitimate claim when in the eyes of the judges he does not. For example, his claim may be based on a voluntary promise made by the defendant to pay him money. However, such a promise is unenforceable at law. Similarly, the defendant might have repaid his debt to the wife or children of the plaintiff, or given the plaintiff a gift, unaware that such payment or gift does not discharge his debt at law. If allowed to proceed, the litigant may go so far as to take an oath in support of his mistaken position.
Even if the litigant is sophisticated in matters of Jewish business law, he still must specify his pleadings. Such specifics may inform the court whether he is intentionally pressing a fraudulent claim or defense.
Either way, the court needs specifics so that it can immediately strike a mistaken or fraudulent pleading.
The requirement to be specific in pleadings is derived from the law concerning non-party witnesses. Even though such witnesses have no economic interest in the outcome of the dispute, they must be specific in their testimony. The requirement to be specific should apply, all the more so, to the litigants themselves, who do have an economic interest in the outcome of the dispute.
If the defendant requests specifics from plaintiff and he refuses to give them, the defendant will be excused from the rabbinical oath of denial, known as the Shavuot Haziest, otherwise imposed on all defendants before they can walk from an unproven claim they totally deny.
