Rabbi Meir Orlian
Mr. Weiss and Mr. Cohen entered into a legal disagreement over a broken contract. “I’m going to sue you in court for $20,000,” threatened Mr. Weiss.
“Go ahead; you have no claim!” responded Mr. Cohen. “I ask, though, that we go to a beis din. It’s wrong to go to civil court when you can adjudicate in beis din. Whatever Halachah requires me to pay, I will!”
However, Mr. Weiss refused to listen and sued in civil court. The court ruled that Mr. Weiss was entitled only to a small payment of $3,500.
“It’s a pity you went to civil court,” Mr. Weiss’s cousin said to him. “Halachah demands adjudicating in a beis din, or at least suing in beis din and receiving permission from them to adjudicate in court if the other party ignores the summons from beis din. Anyway, in this particular case, you would have been awarded more in beis din” (C.M. 26:1-2).
Mr. Weiss went home. “I guess I should have brought the case to beis din,” he thought. “But I can still do that! I’ll tell the beis din that I want to follow the Halachah!”
Mr. Weiss turned to Rabbi Dayan’s beis din and filed a claim against Mr. Cohen. He did not mention that he had already brought the case before civil court.
When Mr. Cohen received the summons, he was furious. “After dragging me to civil court and losing, Mr. Weiss has the chutzpah to summon me to beis din?” he exclaimed.
Mr. Cohen responded to the beis din: “Mr. Weiss already sued me in civil court, against my will. The judgment was that I need to pay only $3,500. I do not see the need to come to beis din.”
When the secretary of the beis din received Mr. Cohen’s response, he showed it to Rabbi Dayan. “It seems that Mr. Weiss already sued in civil court,” he said. “Should we reopen the case?”
“If someone sued another in civil court and lost, and then turned to beis din, Beis Yosef (C.M. 26:7) writes that it seems beis din should refuse to adjudicate the case, even if he would win according to Halachah,” answered Rabbi Dayan. “Beis Yosef notes that Maharik (#187) cited an even more extreme ruling — that the ruling of the civil court is upheld on account of dina d’malchusa — but that the Mordechai (B.K. #195) seemingly maintains that beis din should adjudicate.”
“What does it say in Shulchan Aruch?” asked the secretary.
“The Shulchan Aruch omits this halachah, but the Rema (C.M. 26:1) rules that beis din should refrain from adjudicating,” replied Rabbi Dayan. “He also mentions another opinion to accept the case unless the defendant already suffered some loss before the civil court.”
“Why should beis din refrain from adjudicating?” asked the secretary.
“The Tumim (26:2) suggests two possibilities,” replied Rabbi Dayan. “One, by going to civil court, the litigant implicitly accepted upon himself their ruling and ceded his halachic rights. A person can accept the adjudication or testimony of people disqualified, according to Halachah, to judge or testify. This still does not permit adjudicating in civil court, but grants halachic validity to their ruling, de facto” (see C.M. 22:2).
“The other reason to refuse adjudicating is as a penalty to the litigant, who was wrong to turn to civil court,” continued Rabbi Dayan. “This reason is accepted by most Acharonim. Certainly, if the plaintiff was awarded a small payment by the civil court, but is entitled to more according to Halachah, beis din should not enforce the additional amount, according to the Rema. Many maintain, though, that the defendant still has a personal obligation to pay what he owes according to Halachah; others say that he does not, since the plaintiff gave up his right” (See Nesivos 26:2; Aruch Hashulchan 26:1; Tashbetz 3:68).
“So, what should I do about Mr. Cohen?” asked the secretary.
“If Mr. Cohen does not want to appear, we cannot demand that he come,” concluded Rabbi Dayan. “However, batei din will often accept the case if both parties request it, even after litigation in secular courts” (see also Shevet Halevi 9:287).