Dina D'malchusa Dina

From writings of Harav Chaim Kohn shlita
Simonim:
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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:
Year:
Date:
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N/A
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:
Year:
Date:
Sectionnum:
N/A
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:
Year:
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N/A
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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N/A
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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N/A
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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Date:
Sectionnum:
N/A
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:
Year:
Date:
Sectionnum:
N/A
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:
Year:
Date:
Sectionnum:
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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N/A
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:
Year:
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Sectionnum:
N/A
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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