By Daniel Keren
Rabbi Yehoshua Heber
One of the highlights of the recent Flatbush Veterans Day Hakhel Event was Rabbi Yehoshua Heber, rav of Khal Tomchei Torah (Torah Voda’as Minyan) and dayan of Bais Din Mishptai Yisroel who spoke on whether or not a religious Jew can go to a secular court in a dispute with another Jew.
Rabbi Heber pointed out that the question of Arkaos - Jews going to settle a dispute among themselves in a non-Jewish secular court is brought up in Parshas Mishpatim (Shemos/Exodus 21:1) where we learn that Jews should only go to a bais din, a Jewish religious court to resolve disputes with other Jews. This is true even if the secular court will give the same judgement as the Jewish bais din.
It is considered, Rabbi Heber said, that if a Jew goes to a secular court, it is as if he is honoring avoda zora, the worshiping of idols and this is a terrible dishonoring of the Torah of Moshe.
This is because Hashem chose us from all the nations of the world and gave us His holy Torah in order to live our lives and settle all of our disputes. One who goes to a secular court, Rabbi Heber said, is posul, disqualified according to the Mishna Breuer from davening from amud, bimah in a shul on the Yomim Noraim, the High Holidays.
Why is it that many Jews appear to be unaware of this serious prohibition against taking one’s legal complaints to a secular court? [And this would also include suing another Jew in a secular court in the Jewish State of Israel.] Besides the issur, prohibition of going to Arkaos (secular courts,) if one does so and is awarded by the secular judge or jury a settlement of money; this might constitute gezel, theft from his fellow Jew, including the money that he is forcing the losing defendant to have to spend for his attorney’s fees.
Even if one knows that he has been cheated by another Yid and that the bais din for various technical reasons will not give him the money that he is owed, he is still not allowed to go to the secular courts.
If a Jew has a complaint against a non-religious Jew who will absolutely not agree to go to the bais din, he is then permitted to take his case to the Arkaos, secular court. But he should first ask a Jewish religious court to issue a summons to the non-religious Jew and after the non-frum Jew ignores the summons, the other Jew is free to bring his complaint to a secular court.
Similarly, if another Jew summons a Jew to a secular court, is the defendant thereby allowed to go to the secular court in order to defend himself? Rabbi Heber said that the Jew being summoned by the other Jew to the secular court must first go to a bais din and request that they issue a hazman, summons against the Jew to rather settle the dispute in a religious court. If at that point after being issued an hazman and the plaintiff refuses to come to the bais din, the defendant is now free to defend himself in the Arkaos.
Even to threaten another Jew to take him to a secular court and that threat results in that other Jew agreeing to settle out of court is forbidden, Rabbi Heber said. And whatever money the first Jew gets as a result of that tactic is considered as “stolen” money.
Can a frum Jewish lawyer represent another Jew who wants to sue a third Jew in secular court? If the attorney can persuade him to take his case first to a beis din, the lawyer has to do so. If without your help, that Jew who wants to sue the other Yid won’t be able to pursue his claim in a secular court, the Jewish lawyer is forbidden to represent this client in the secular court. If, however, he can indeed find another lawyer to represent him without your services, the frum lawyer can then represent this Jewish client.
Rabbi Heber noted that if a Jew does bring his complaint against another Jew to a secular court and loses the case, he cannot then bring his complaint to a religious Jewish court.
The most common heter, permission to go to a secular court is if the person you are suing is a tough guy and he will not listen to the p’sak, decision of the bais din. This heter however, has to be signed by three dayanim (judges of the bais din). If one gets a heter from his rav alone, but who doesn’t want his signature revealed publicly, such a document is worthless.
Reprinted from the November 29, 2024 edition of The Jewish Connection.
