Secular Court and Arbitration


When entering into a legal contract while leasing a car, purchasing tiles, or signing bank or insurance documents, what should be the agreed-upon venue for resolving disputes?


You should not agree to resolve your dispute with another Jew in a secular court of law.[1]

According to halochoh, the appropriate arena for making any monetary claim is the beis din. Jewish law (Choshen Mishpot 26:1) expressly forbids filing suit in a secular court and acting upon the claim. The Israeli court system (including family and labor courts), which do not use halachic criteria to reach its decisions, is equivalent to the forbidden secular courts mentioned in the Shulchan Aruch.[2]

Instead, write that any dispute shall be resolved through mediation or arbitration by a recognized Orthodox beis din. You can specify a specific beis din or keep it general. It is also acceptable to agree to have the dispute adjudicated by arbitrators (not associated with a beis din), whether they be dayonim, irreligious Jews or gentiles, as long as they will use their intellect and natural sense of fairness to resolve the case. They must not use any secular law in deciding the case. Other than halochoh, the only criterion that the arbitrators are permitted to use is what seems correct, just and fair to them. A clause may be inserted into a contract regarding resolution of disputes or in a Deed of Arbitration restricting the arbitral tribunal to decide ex aequo et bono[3] or as amiable compositeur.[4] Judging on this basis is not a noticeable abandonment of divine Torah law. If the parties or arbiters were to agree on a set of man-made laws, it would be an affront to Torah law. The arbiters’ religious beliefs, whether they are gentiles or Jews, is not determinant; what matters is the basis on which the judgment will be made.[5]

Of course it is better to resolve disputes according Torah law and it is well worth the energy spent to search for the most learned, unbiased, strong-minded, sharp and G-d–fearing dayon available. Nevertheless, I mention the arbiter who will judge according to his conscience for practical reasons. Sometimes it is impossible to get another party to agree to a beis din or dayon. In such situations, it is important to know that a borer (arbiter) who will rule according to a personal sense of fairness is halachically acceptable.

It is advisable to find a beis din or borer that is aware of the local arbitration laws and will comply with them.[6] This is advantageous since on occasion a disgruntled party may unjustifiably attempt to overturn a ruling by a beis din in a secular court, relying, for example, on a legal procedural flaw.[7] If the dayonim are knowledgeable and careful, they can usually satisfy arbitration law and halochoh, so that their ruling will be upheld in a secular court of law if necessary. Another advantage of having the secular court recognize the beis din’s ruling is that the ruling can be enforced if one party fails to comply. Once a secular court recognizes the beis din’s ruling as a binding decision by a legal arbiter, the party that won the case will have more tools at its disposal with which to enforce the ruling.

Any mutual agreement to have a dispute resolved by a secular court or not in accordance with halochoh is not binding. It would still be necessary to go to a beis din or other acceptable venue.

Should a claimant proceed with litigation (in violation of halochoh) with an unacceptable court of law, any money procured thereby is considered stolen and must be returned.[8]

Often contracts are standardized and cannot be modified to comply with your specific needs. In Israel, for example, when one opens a bank account, buys tiles or wood, or rents a car, there is a standardized contract that all purchasers must sign. Sales people are not authorized to change the contract in any way. Signing such a contract is permissible even if it states explicitly that any dispute will be resolved by a court that one is forbidden to use (e.g., the Tel Aviv District Court).[9] That clause is not binding, since any dispute between two Jews must be adjudicated according to halachically acceptable guidelines. In other words, your agreement to go to secular court is not binding. You must bring any dispute to a halachically acceptable venue. However, signing such a document has significant halachic ramifications.

The main function of the clause is to restrict the locale of adjudication to a specific area. Implicit in that statement, however, is an agreement that any dispute between you and the other party should be resolved according to secular law. It is permissible to enter into such an agreement. Once both parties agree that all matters between them will be governed by a certain set of laws, any dispute between them will have to be brought to a beis din, which must determine the secular law and rule accordingly. If that is the intent, it would be better to word the agreement to reflect that and explicitly write that the agreement shall be governed and construed in accordance with American, Israeli, English or South African law (of course, the more specific the better: California, New Jersey or New York law).[10]

Although it is not forbidden to sign a document stating that the Jewish parties will resolve their disputes in a secular court, since it is ineffective, still it should be avoided when possible due to a potential chillul Hashem. It is an affront to Hashem and His Torah to agree to a different system of law as the best way to reach the truth or resolve differences. It is akin to saying that Hashem’s Torah is not as good as California or Israeli law. However, when it is not obvious that you are making such a statement, the chillul Hashem is not significant.[11] There are often many pages of fine print and you may be unaware of everything you agreed to; thus, you can disassociate yourself from the slap in Hashem’s face. In fact, perhaps there was no slap in Hashem’s face if the signers were unaware of the ramifications. Nevertheless, when possible, it is appropriate to word the contract to reflect proper Torah values and establish a halachically acceptable venue for resolving disputes.

It is advisable to name a specific beis din or a specific arbitrator who will rule according to halochoh or (in the case of the latter) his own sense of justice. Alternatively, you could state that you will follow the zablo method (whereby each party chooses an arbitrator and the two arbitrators choose a third).

Should the agreement fail to specify a beis din or borer (in the absence of a single recognized beis din in the city) the parties must agree on a beis din or use the default method mentioned in the Mishnoh of zablo.

A Jewish lawyer who represents one Jew in a claim against another Jew in a secular court is in violation of the prohibition on assisting a Jew to sin. The applicable laws of lifnei iver and messayei’a ledvar aveiroh must be addressed before one engages in such practice. Any claim involving a gentile may be filed and argued in secular court.[12] Any defense against a suit brought by another Jew may be made in a secular court. Once a person is called upon to defend himself in secular court he may present a counterclaim and may keep the award granted by the judge, should he win.[13]

BookID: 4 Chapter: 26

On numerous
occasions I have heard from my rebbi, Horav Zalman Nechemiah Goldberg shlita
that the prohibition is only regarding the resolution of financial matters.
When someone wishes to approach a court for a tzav harchakah, visitation
rights, custody or similar orders that do not restrict ones financial rights,
one is not in violation of the Torah prohibition of approaching a secular court.
Nevertheless, when one can achieve the same result through a Beis Din order,
it should be the first choice of action. Furthermore, the secular court will
not use the same criterion that halochoh does when deciding on these other matters
and an injustice is likely to result.

Sometimes when approaching
the court on a permissible issue, ultimately it leads to a financial injustice.
For example, it is not uncommon for a family court judge to link child support
payments to visitation rights. Thus, even if a lawyer urges a client for permission
to file (or counter file) for visitation rights or a request for a social worker’s
assessment, eventually it may lead the judge to link a neutral issue to child
support or other financial matter. It is possible that a Beis Din would not
rule exactly as the judge had, resulting in a Jew’s money being controlled against
the principles of halochoh.

The prohibition
applies even if the secular court were to reach the same financial arrangement
that a beis din would have reached. Should the court award more than
that, any money received by the plaintiff beyond what a beis din would
have awarded is viewed halachically as ill-gotten gains and must be returned
like any other stolen property. This secondary transgression of accepting money
that one knows he is only receiving solely because the respondent feels compelled
to follow the decision of the secular court while the claimant is aware that
halachically the money doesn’t really belong to him, is a more readily acknowledged
and understood sin.

What many observant Jews
do not fully appreciate is the severity of the transgression of suing in secular
court. Even those who acknowledge it as wrong still might take a lackadaisical
attitude towards it.

Therefore, it is important
to emphasize that the Shulchan Aruch deplores such behavior. Filing suit and
actually making a claim in a secular court is considered blasphemy and a rebellion
against Hashem. It is equivalent to declaring that the laws in the Torah are
false. The Ramo exhorts community leaders to persuade the person involved to
reverse such a disgrace to Hashem and have the case heard in a beis din.
He adds that it is appropriate to shun not only the plaintiff but anyone who
is supportive of such a person. The Aruch Hashulchan explains that not only
is the plaintiff considered a rosho, but anyone who is supportive of
the plaintiff is also considered a rosho.

Since there are exceptional
circumstances in which a beis din might grant permission to an observant
Jew to file suit in a secular court, before any public disgrace is done to an
individual, it is prudent to first summon someone suspected of this violation
to a meeting so that he can explain his behavior. Then, if there is no halachically
valid justification, the beis din (or local rabbonim) might use the meeting
to impress upon the person who is about to violate (or has already violated)
this halochoh why what they are doing is unacceptable for an observant Jew to
do and prevent this phenomenon from becoming prevalent in the community. If
this is ineffective, extraordinary measures are sometimes appropriate in order
to reach the objective.

it means in accordance with justice and fairness or according to what is right
and good. Something to be decided ex aequo
et bono
is something that is to be decided by principles
of what is fair and just.
In the context of arbitration, it refers to
the power of the arbitrators to dispense with consideration of the law and consider
solely what they consider fair and equitable in the case at hand.

composition is a process where a third party adjudicator conducts a hearing
and renders a binding decision based on compromising the parties’ interests
through natural equity rather than an absolute determination of the rights of
the parties. The "amiable compositeur" is sometimes referred to as
the ex aequo et bono in certain legal systems.

Much of
the above can be found in Chazon Ish, Sanhedrin 15:4.

batei din
even have dayonim who are certified arbiters.

It is forbidden
to approach a secular court to void a ruling of a beis din, but it has to be
mentioned because a litigant who lost in beis din is liable to try anything
to win his case.

This is
true with regard to a claim one Jew (A) makes towards another Jew (B) that is
forced to appear in court and pay (B) the award of the secular court. There
are a number of exceptions to this rule. For example, should you be permitted
to appear in court (e.g., as a defendant or as a claimant after a heter
from Beis Din should the defendant not appear in Beis Din) in many circumstances,
the party that lost the judgment willingly wishes to follow the ruling. Large
corporations such as banks and insurance companies only have confidence in the
secular court system and have a deep respect for it. They feel equipped to present
their position in such an environment and are prepared to pay whatever the judge
rules, whether it is halachically sanctioned or not. Thus, even if the large
corporation is the defendant (and refused to acknowledge the authority of the
Beis Din and instead accepted the authority of the secular court), should they
lose in court and pay the award, a G-D–fearing Jew may keep the money.

It is distasteful
and preferably avoidable but is not technically
forbidden. It is akin to a person
writing, "I am a Shabbos desecrator" when in fact he is not.

This is not the case
with regard to a clause requiring interest payments. Signing a document that
requires one party to pay interest is in itself a Torah violation.

This is
the opinion of the Tumim in siman 26. The Taz disagrees and rules that it is
considered an affront to the Torah for the parties to accept upon themselves
a different set of principles guiding their financial agreements other than
that of the Torah.

They both disagree with
the statement of the Sema, which seems to indicate that once a kinyon was made
that the parties will go to a secular court, they are permitted to do so. It
is inconceivable that the Sema would disagree with the well-accepted halochoh
that it is forbidden to go to court and therefore his comment is perplexing
since we do not find that a kinyon has the power to permit the forbidden. Some
resolve the statement of the Sema by assuming that he means to allow the parties
to adjudicate in Beis Din in accordance with secular law. The Tumim permits
this, just that the Tumim did not think that that is what the Sema had meant.
See also the Sema in siman 61:14 for more comments of the Sema clarifying his
own statement in siman 26.

Another approach suggested
in order explaining the Sema is that the Sema assumes that the prohibition to
go to secular court is only when there is no benefit for the claimant. In such
a case, the decision to approach the secular court instead of the Jewish court
is an act of contempt towards the Beis Din. However, should the plaintiff have
a perceived financial gain by accepting the secular court’s system of law, he
has not violated any halochoh. I heard this explanation of the Sema’s opinion
from Rav Mendel Shafran, who quickly added that even if this is the opinion
of the Sema, the other poskim disagree with him and is should not be put into

In the main article,
I have accepted the Tumim’s position and not that of the Taz. Although they
disagree whether a Beis Din may use secular law as the basis of the judgment,
it is likely that even according to the Taz this form of "erkaos"" is
not de’oreiso. Furthermore, many poskim seem to agree with the Tumim’s
position. However the Sema is understood, he certainly disagrees with the Taz.

When the
clause is added against your will, there is no chillul Hashem.


אולם בשו"ת תשב"ץ חלק ב' סימן ר"צ בשם השאילתות כתב וז"ל בפ' שופטים כתב ומנין
שישראל ועכו"ם שיש להם דין ועסק זה עם זה שאסור לומר לעכו"ם לך עמי לערכאות של
עכו"ם שהוא עובר בלאו שנאמר לא עשה כן לכל גוי. אבל כבר כתב בכסף קדשים סימן כ''ו
ס''ב דאם ידוע או ברור לכל שלא יענה לתביעת ביה''ד א"צ ליטול רשות מביה''ד. ובדרך
כלל כך הוא המציאות אם יתבע נכרי לביה''ד של ישראל. והוסיף שם דסגי באומדנא או
בידיעת שלשה בני אדם כמו שמועיל רשות מג' הדיוטות.

וכן המנהג לגבי גופים יהודים הכפופים לערכאותיהם שאין מזמינים
לביה''ד אלא תובעים ישר בביהמ''ש כגון במשרד ממשלתי או בעיריה, שאפי' ירצו אינם
רשאים לדון בד"ת, כי כן הוא בחוקותיהם ואין בכחם ללכת לד''ת. ונראה דה''ה בחברת
ביטוח אם מצהירים שרק ערכאות מחייב אותם.

ואם הבע"ד אמר שמסרב לד"ת,
נראה דא"צ לקבל רשות מב"ד שבמקום הנתבע, דלעשותו סרבן להתיר לתבעו בערכאות אין
טעם להטריח התובע למקום הנתבע.

This is
because the plaintiff who brought the case to court realized that a defense
and counterclaim will be made and is prepared to accept the judge’s ruling.
He has thereby willingly forfeited the amount that the court may award the defendant.

In other words, when
a claimant (A) approaches a secular court (in violation of halochoh) and the
respondent (B) defends himself and makes counterclaims in court (which is permissible
to do in defense of his position) he (B) is permitted to keep any award granted.
This is true even if the court awards him (B) more than he would ever have received
in Beis Din, since the claimant (A) has accepted the authority of the court
decision. The respondent (B), however, should only limit his response to a counterclaim
and should not use the court audience to counter file other financial grievances.

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