Dina D'malchusa Dina

From writings of Harav Chaim Kohn shlita
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5778
5.09.2018
#425

Definition

Q: I heard that halachah gives credence to the “law of the land.” Does this mean that all civil law is binding, even among Jews?
A: The Gemara (Nedarim 28a; Gittin 10b) teaches that dina d’malchusa dina — the law of the kingdom is law. This ruling is cited unequivocally in Shulchan Aruch (C.M. 369:6-11).
The ruling applies both to governing by a king, as previously common, and in a democracy, as common nowadays. Either way, though, the government’s authority is rooted in its acceptance by the populace. However, one who rules by force and whose authority is not accepted by them is considered a thief. Furthermore, some maintain that the king cannot create new laws, but can rule only based on the accepted rulings of former kings. Others maintain that he can create new laws if they apply fairly to all (Ramban, B.B. 55a; Maggid Mishneh, Hil. Gezeilah 5:14).
In the coming articles, we will try to understand the basis, scope, and details of this ruling, and its application to monetary disputes among Jews (Pischei Choshen, Geneivah 1:2[4]).

 

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
13.09.2018
#426

Basis

Q: What is the basis of dina d’malchusa dina?

A: This rule is generally assumed to be Biblical, although some indicate that it is Rabbinic (Responsa Chasam Sofer, Y.D. #314; Beis Shmuel, E.H. 28:3).

There are a number of possible sources:

1. The Noahide mitzvah of dinim (law; Rashi, Gittin 9b).

2. The populace accepts the laws of the king willingly, even if not explicitly (Rashbam, B.B. 54b; Terumas Hadeshen #341).

3. The land belongs to the king, and he has the right to evict or expel if he wants to; he intends that even citizens who own land should dwell only according to his rules (Rosh Nedarim 3:11; Ran Nedarim 28a).

4. The king has ownership of his subjects (kibbush; Rashba, Yevamos 46a; Chazon Ish, Likutim, C.M. 16:9).

5. Akin to hefker beis din hefker (Rabbeinu Yonah, B.B. 54b; Chavos Daas, Y.D. 165:5).

6. The ‘law of the king’ stated in Parashas Shoftim, which extends also to non-Jewish kings (Mabit, Kiryas Sefer, Hil. Gezeilah 5:18).

There are various practical differences that emanate from these different sources.

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
20.09.2018
#427

Currency

Q: What is the halachic status of paper currency issued by the government? What happens if the government changes the currency or devalues it?

A: Establishing currency is included in dina d’malchusa. Therefore paper currency issued by the government as legal tender is considered cash, not shtaros (documents), even though it has no inherent value. Therefore oaths and guardianship apply to it; one can betroth a woman with it. Many maintain that it can be used for pidyon haben, even though loan documents cannot; some question this, since this mitzvah is between man and Hashem, whereas dina d’malchusa might be limited to interpersonal matters (Pischei Teshuvah, Y.D. 305:7; Minchas Pittim, C.M. 301:1).

If the government changes the currency or devalues it and establishes laws about payment of former debts from the new currency, the law is valid as dina d’malchusa. There is no concern of theft or ribbis according to most Poskim, even if the resulting payment is more than the initial loan (Rema,  Y.D. 165:1; C.M. 74:7; Shach 74:28; Bris Yehudah 21:11).

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
4.10.2018
#428

Traffic Tickets and Copyright

Q: I received a traffic ticket. Does halachah recognize the validity of such fines?

A: The government is empowered to establish laws that are necessary for the proper functioning of society, such as traffic regulations. A king or government is allowed to punish one who violates these laws and impose a fine on him or confiscate his assets (C.M. 369:8,11).

Thus, halachah also recognizes the validity of the ticket. However, you may contest the ticket and avail yourself of any loopholes to avoid payment, even on technical grounds, such as mistaken information entered on the ticket.

Similarly, many Poskim rule that copyright law is binding based on dina d’malchusa, since it is necessary for proper functioning of society (Beis Yitzchak, Y.D. 2:75).

On the other hand, laws dealing with monetary matters between individuals are not included in dina d’malchusa, and are often not  halachically binding between Jews when in conflict with halachah. On certain issues, the Poskim dispute whether it is considered a personal matter or one of a societal nature.

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
11.10.2018
#429

Inheritance and Wills

Q: Does dina d’malchusa apply to laws of inheritance? What about civil wills that are not halachically valid?

A: Dina d’malchusa applies to laws that benefit the government or enable proper functioning of society. However, regarding laws that regulate matters between individuals and do not constitute a “common practice,” such as laws of inheritance, it is prohibited to rule according to civil law against Torah law, even if the judges are Jewish. If this were so, all monetary Torah laws would be null and void! (Responsa, Rashba 3:109; Shach 73:39; Rama 369:11; Pischei Choshen, Yerushah 1:2).

Nonetheless, often the halachic heirs agree to grant an inheritance to the remaining spouse or to divide it according to civil law. In cases where they demand their halachic share, there is a dispute whether the legal heirs can demand compensation for their signature to relinquish their legal claim (Pischei Choshen, Yerushah 1:4[5]).

Furthermore, some authorities uphold secular wills based on mitzvah l’kayem divrei hameis, as mentioned in the inheritance series previously published (Achiezer 3:34; Igros Moshe, E.H. 1:104).

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
17.10.2018
#450

Lost Items

Q: I found a lost item on which I can presume yei’ush. Civil law requires turning it in to the police. Should I do so?

A: We have mentioned that according to most authorities dina d’malchusa does not apply to monetary laws between individuals.

Nonetheless, Rema rules that if the king decreed the return of lost items from a shipwreck, despite the inherent yei’ush involved, you must hand over your found item. Similarly, he writes that the practice is to return stolen items that you purchased even after yei’ush of the owner, in accordance with dina d’malchusa (Rema, C.M. 259:7; 356:7). Shach (356:10) objects to applying dina d’malchusa here, but explains that the Rema’s ruling is due to the common practice that evolved and was subsequently enacted by Jewish communities.

Ketzos (259:3), however, indicates that dina d’malchusa is applied here, since halachah also instructs returning lost and stolen items after yei’ush, lifnim mishuras hadin.

Therefore, you should turn the item in, especially in a place that is mostly Jewish. Some say, however, that if you can publicize and return the lost item properly, whereas the police may not, you should not hand it over to them (Pischei Choshen, Aveidah 2:[53]; Hashavas Aveidah K’halachah 3:4).

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
24.10.2018
#431

Employee Benefits

Q: I hired employees, but did not state in the contract that they are entitled to the legally required employee benefits. Am I required to provide these benefits because of dina d’malchusa?

A: According to many authorities, dina d’malchusa applies to laws that are for the social welfare of society. Others maintain that it does not apply to laws between individuals, against Torah law, even when for social welfare (Rema, C.M. 369:11; Shach 73:39).

Nonetheless, even according to those situations in which dina d’malchusa does not apply, it often generates a common commercial practice. On contractual issues, such as those between employer and employee, buyer and seller, or landlord and renter, it is not feasible to stipulate everything. Therefore, the common commercial practice is binding in these areas, whenever not stipulated otherwise (C.M. 330:1; Shach 356:10).

The Poskim give great weight to the common practice in employer/employee relations. In most situation, employee rights rooted in civil law also become the common practice, so that they are halachically binding and you must provide them (Pischei Choshen, Sechirus 10:36; Igros Moshe C.M. 1:72).

 

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
31.10.2018
#432

Land of Israel

Q: Does dina d’malchusa apply in Eretz Yisrael?

A: This question is subject to extensive dispute. Rambam (Hil. Melachim 4:1) rules that the practices of the Jewish king mentioned in sefer Shmuel are legal rights. Similarly, Rambam and Shulchan Aruch affirm the king’s rights to levy taxes, whether Jewish or non-Jewish (Hil. Gezeilah 5:11; C.M. 369:6).

However, others maintain that the practices of the king are not legal rights, but were instituted to threaten the people (Nimukei Yosef, Nedarim 28a).

Furthermore, some base dina d’malchusa on the rationale that the land belongs to the king; he allows people to live there only subject to his laws. According to this, dina d’malchusa would not apply in Eretz Yisrael, since the land does not belong to the king; all Jewish people are inherent partners in it (Ran, Nedarim 28a).

Nonetheless, dina d’malchusa would still apply to rules necessary to maintain proper order in the land, or to a democratically elected government according to those who base it on acceptance by the populace (Pischei Choshen, Geneivah 1:[4]).

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
8.11.2018
#433

Restricted to Sectors

Q: Does dina d’malchusa apply to laws that are restricted to certain regions or sectors of the populace?

A: There is a dispute, and seeming contradiction, on this issue. Beis Yosef (C.M. 369:14) cites that Rabbeinu Tam ruled that dina d’malchusa applies only to a law that is binding on the entire country, but not if it differentiates and discriminates against one region. The Rosh, however, seemingly disagrees.

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
14.11.2018
#434

Eminent Domain

Q: The state appropriated my neighbors’ properties to build a highway, invoking “eminent domain.” My Jewish neighbor vehemently objected and declared that he does not forgo his halachic right. Is it permissible to use the highway, or is it considered theft?

A: The concept of eminent domain appears in Halachah as a classic example of dina d’malchusa. The Gemara (B.K. 113b) brings proof to Shmuel’s opinion that dina d’malchusa is valid from the fact that the king cuts down people’s trees to make bridges, and we commonly traverse them. Similarly, the Mishnah (Sanhedrin 20b) teaches that a king can breach a fence or destroy a house to make a road. Furthermore, the Gemara (B.B. 54b) teaches that the king can revoke possession of land from people who do not pay taxes (Hil. Gezeilah 5:17; Melachim 5:3; C.M. 369:2,10).

The implication is that the government does not even have to compensate the owner.

Thus, halachah recognizes the validity of eminent domain, and certainly if the government compensates with fair market value as required by law.

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From writings of Harav Chaim Kohn shlita
Simonim:
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N/A
5779
21.11.2018
#435

Real Estate Transactions

Q: In some places, the law of the land stipulates that real-estate transactions are effective only upon registering the change in the land registry. If I purchased land with classic kinyanim, is the sale effected?

A: The Mishnah (Kiddushin 26a) teaches that land is acquired through monetary payment, sale document, or act of possession. Real-estate transactions with non-Jews are concluded only with a sale document (C.M. 194:2).

Nonetheless, the Gemara (B.B. 54b) teaches that if the law of the land stipulates that possession of the land is effected only in a certain manner, the law is binding based on dina d’malchusa.

Chazon Ish (C.M., Likutim #16) addresses the issue of selling land for the purpose of Shemittah, maaser or mechiras chametz, which is not registered in the land registry. He maintains that dina d’malchusa does not preclude judging according to halachah if the parties stipulate to finalize the transaction in the normal halachic manner. Others disagree, since the law is for the welfare of society (Pischei Choshen, Kinyanim 2:[14]; 12:5).

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
28.11.2018
#436

Federal Safety Regulations

Q: I deal with hazardous materials. The government has very strict safety regulations, which entail great expenses. Must I observe these regulations?

A: Rav Y.Y. Shmelkis (Beis Yitzchak, C.M. #77) addresses the case of a person who sold kerosene privately in his basement. A neighbor, concerned about the possibility of fire, reported it to the authorities, who required the seller to install metal doors at great expense. He sued the neighbor in beis din for reporting him to the authorities and causing him such expenses.

Beis Yitzchak ruled that Torah law also requires such precautions, because of the great danger of fire. He also cites from the Bach (C.M. 155:56) that dina d’malchusa applies regarding precautionary measures from damage to neighbors. He writes that even the Shach (C.M. 73:39), who rules that dina d’malchusa does not apply when against Torah law, would agree for issues of public safety, since these regulations are common practice (Pischei Choshen, Nezikin 13:[5]). Thus, you must observe the federal safety regulations

 

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
5.12.2018
#437

Bankruptcy

Q: Are debts that were discharged under a court bankruptcy order exempt also according to halachah?

A: Halachah provides liquidation arrangements for one who is unable to pay (siddur l’baal chov), but not discharge of debt (except yovel [C.M. 97:23-27]).

Nonetheless, a creditor who participated in the bankruptcy proceedings forgoes the remainder even without a kinyan, since this is the commercial practice (Pischei Teshuvah 12:19).

Minchas Yitzchak (3:134) rules that a creditor who did not participate in the bankruptcy proceedings and did not forgo his loan can still claim it.

But Igros Moshe (C.M. 2:62) writes that dina d’malchusa applies to bankruptcy rulings, since bankruptcy settlement is not a private issue between individuals, but a societal one. All the more so bankruptcy of corporations, which presumably includes non-Jews. He writes that one who received more than his legal share from the debtor must return the excess to the trustee. Others add, regarding corporations, that since all their financial matters operate according to law, anyone who deals with them does so with this understanding (Pischei Choshen, Halvaah 2:[63]).

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From writings of Harav Chaim Kohn shlita
Simonim:
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5779
11.12.2018
#438

Tax Loopholes

Q: Is it halachically permissible to take advantage of tax shelters and tax loopholes (“tax avoidance”)?

A: The classic case of dina d’malchusa in the Gemara (B.K. 113a) is that of taxes. The king or government, whether Jewish or non-Jewish, is entitled to impose and collect taxes and customs tariffs, provided that the tax is collected in a standard manner, even if some groups pay more than others. A tax collector who acts according to the law acts also with halachic authority (C.M. 369:6).

Nonetheless, it is permissible to take advantage of tax shelters and tax loopholes. For example, if local people are not subject to custom tariffs, Rivash (#2) allows granting merchandise as a gift to a local person when passing customs to avoid the tariff. This is considered “avoidance of taxes” and not “tax evasion,” and is in consonance with dina d’malchusa (Pischei Choshen, Geneivah 1:[4]).

One should consult a professional tax expert in this regard, as the details vary from place to place.

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From writings of Harav Chaim Kohn shlita
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5779
19.12.2018
#439

Price Regulations

Q: Are price regulations set by the government binding? What about items subsidized by the government?

A: Rules for the benefit of society as a whole that do not negate any Torah law are binding as dina d’malchusa. Therefore, price regulations, if set by the government for this purpose, are binding. Furthermore, the regulations set a commercial standard among the merchants, which is binding on that account (Dinei Mamonos, vol. IV, p. 47).

According to many authorities, price regulations of items subsidized by the government are binding also in Israel, even according the opinion that dina d’malchusa does not generally apply in Israel (Mamon Kasher, p. 89; Pischei Choshen, Onaah 11:[15]).

If the government removed the subsidy from a subsidized item and the price rose, if it imposed rules about the price of products left over from the subsidized period, they are binding. If rules were not imposed and the item is now worth more, the store owner may charge the current price, like any other item that appreciated in value in his possession (Shaarei Ezra, vol. II, C.M. #134).

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From writings of Harav Chaim Kohn shlita
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5779
26.12.2018
#440

Public Roads

Q: Can the government grant permits to block off streets, or allow construction that hinders the public?

A: One is not allowed to ruin a public thoroughfare, but the government can grant permission to block off streets, since the roads belong to the government. It is questionable, though, whether one may initially place a request for a permanent permit (C.M. 162:1; Pischei Teshuvah 162:3).

Similarly, one is not allowed to dig a hollow under public roads lest the cover fall in and people get injured. Nonetheless, Rema writes that this is permitted nowadays, since this is the common practice. Furthermore, the streets belong to the municipality, and we do whatever they grant permission for (C.M. 417:1).

Aruch Hashulchan (C.M. 417:5) bases this on dina d’malchusa. However, this is permissible only upon receiving a permit from the governing body, but otherwise it is not allowed, even if one could receive a permit. With a permit, even construction that is not commonly done is allowed (Pischei Choshen, Nezikin 8:[67]).

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From writings of Harav Chaim Kohn shlita
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5779
2.01.2019
#441

Statute of Limitations

Q: Does the statute of limitations exempt debt among Jews?

A: In principle, halachah has no statute of limitations on debt; even if many years passed, it remains intact. Some places had a practice not to collect old debt from inheritors, or to more readily believe the borrower’s claim that it was paid (C.M. 98:1; Pischei Teshuvah 61:5).

Nonetheless, beis din must check carefully with long-past debt whether there is something suspicious; it would then refuse to deal with the case (C.M. 98:2; 61:9).

It is doubtful whether the concept of dina d’malchusa dina applies to the statute of limitations, but for debt in a commercial setting, the concept of minhag hamedinah (common commercial practice) would apply (Mishpetei Uziel, C.M. 4:28; Pischei Choshen, Halvaah 2:[72]).

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From writings of Harav Chaim Kohn shlita
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5779
10.01.2019
#442

Legal Rulings

Q: Are rulings issued by civil courts, such as Supreme Court decisions, included in dina d’malchusa?

A: Dina d’malchusa applies to laws and rules established by the king or legislative body of the government. However, laws and rules advanced by civil courts are not included in dina d’malchusa, even if the law requires following their rulings. Civil judicial rulings do not have authority to usurp Torah law for dealings between Jews (Sma 369:21).

Moreover, even if the ruling is the court’s interpretation of the law, when this interpretation is unclear and subject to the judge’s personal understanding, especially if guided by worldviews contrary to Torah perspective, dina d’malchusa does not apply (Tzitz Eliezer 16:49).

Thus, even a Supreme Court ruling, which is not based on a clear reading of the law as intended by the lawmakers, does not carry the status of dina d’malchusa. Nonetheless, on contractual issues, the rulings can form a common commercial practice if they become entrenched and are accepted in practice among Jews as well (Responsa Rashba 3:109, 6:149).

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From writings of Harav Chaim Kohn shlita
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5779
16.01.2019
#443

Copyright

Q: Are copyright laws halachically binding on account of dina d’malchusa?

A: Rema (C.M. 369:11) writes that dina d’malchusa applies to governmental issues or those for societal benefit. Therefore, since copyright laws are for societal benefit, many authorities maintain that they are binding on account of dina d’malchusa, certainly in light of their widespread acceptance.

For example, Rav Moshe Halberstam, zt”l, writes that a law for the benefit of a profession that does not contradict Torah law, that fairness requires (“v’asisa hayashar v’hatov”), and that is a set rule of dina d’malchusa, is binding even in Eretz Yisrael (cited in Mishnas Zechuyos Hayotzer, p. 121).

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From writings of Harav Chaim Kohn shlita
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5779
24.01.2019
#444

Municipal Zoning Ordinances

Q: Are municipal zoning ordinances halachically binding on account of dina d’malchusa? Does the municipality have a right to fine or punish those who violate them?

A: Municipal zoning ordinances are included in dina d’malchusa. This is because the townspeople, as a whole, can enact rules for public welfare, and fine or punish those who violate them. The elected officials and city council serve as the people’s representatives to enact and establish rules for the collective benefit and general welfare of the townspeople (C.M. 231:27-28).

According to most authorities, a majority vote suffices in this realm; there is no need for unanimous agreement (Pischei Teshuvah, C.M. 231:3,6).

Moreover, even according to those who maintain that dina d’malchusa does not apply in Eretz Yisrael, this is only regarding taxes and the like, which are for the benefit of the government. However, regarding municipal zoning laws, the townspeople can enact rules for their collective benefit (Pad”ar #12, p. 15).

Therefore, the municipality has the right to fine or demolish a structure built against the zoning ordinances.

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From writings of Harav Chaim Kohn shlita
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5779
30.01.2019
#445

Asmachta: Late Payment Clauses

Q: My rental contract includes a late payment clause. I heard that it may be considered asmachta and not halachically binding. Is it binding, nonetheless, on account of dina d’malchusa?

A: A late penalty clause is considered asmachta if it is exaggerated and not commensurate with the loss caused. Asmachta clauses are halachically binding only if stated that they were made with a kinyan before an official beis din.

Nonetheless, if such a clause is legally binding and drafted in a formal, legal document, Rema cites an opinion that it is binding on account of dina d’malchusa (C.M. 207:15).

However, some Acharonim rule that dina d’malchusa is not reason to grant halachic authority to asmachta clauses in contracts between Jews, especially to extract payment. If so, the entire concept of asmachta would be negated! (See Minchas Yitzchak 6:170; Chazon Ish, C.M., Likutim 16:11; Pischei Choshen, Kinyanim 21:[25].)

It should be noted that excessive late fees, which are deemed penalties incommensurate with the damage, are also not legally binding in many places. Some late payment clauses are also prohibited on account of ribbis.

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From writings of Harav Chaim Kohn shlita
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5779
6.02.2019
#300

Court-Imposed Interest

Q: In many countries, the law imposes interest on judgments or award of damages. Is such interest acceptable on account of dina d’malchusa?

A: Dina d’malchusa cannot permit something prohibited by the Torah. Thus, it cannot permit the ribbis between Jews (Rema, C.M. 369:11).

Nonetheless, some authorities consider one who willingly refuses to pay what he owes as a thief, and maintain that ribbis does not apply to compensation by a thief who caused loss (see Bris Yehudah, ch. 4)

Furthermore, some understand that interest imposed by external sources, not the lender or borrower, is not considered ribbis, and may be included in dina d’malchusa (see Rema, Y.D. 165:1; C.M. 74:7)

In addition, Biblically prohibited ribbis pertains only to interest on loans that was agreed upon beforehand by the lender and borrower. Other forms of interest are Rabbinically prohibited, which do not always have to be returned once paid (Y.D. 161:2, 5).

Thus, in certain cases, a person may be allowed to accept or keep court-imposed interest. A competent halachic authority should be consulted.

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