Case:
Ruling: It is true that the Maharsham (I, 89) says that if a defendant willingly took part in adjudication at a secular court and lost, he cannot later sue in beit din to overturn the ruling. However, pl denies that they went to that court willingly but claims that they were forced to defend themselves when they were summoned there. Indeed someone who does not appear before the courts is judged anyway, often in a manner that is damaging. The Maharsham is clear that the reason the defendant in his case was prevented from going to beit din was that he did all sorts of extra actions that showed that he was fully interested in adjudication there. In our case, it was primarily def who had the obligation to summon pl to beit din, and there was little excuse for her not to have done so.
Even if we were to view pl as willingly taking part in the secular judicial process, that is only true in regard to the base claim. However, the great majority of the payment that is pending now is from the interest and fines and the fees of holp, which was certainly not accepted by pl. (Holp can be used even to enforce beit din rulings, just that when interest, fines, and fees are exorbitant, the matter is halachically problematic.) The aforementioned Maharsham says that even if the defendant, in his case, could not go to a retrial at beit din, charges that are clearly against halacha, such as interest and paying for the plaintiff’s time, may not be collected.
Def said that she cannot freeze the proceedings at holp because she made a deal with her lawyer that she would receive the principal won from her lawsuit, whereas the lawyer would be paid from the extra amounts levied. Thus, it is not her money to relinquish. Besides such an agreement being too strange to readily believe, a lawyer does not have his own rights in court but represents his client. If the client wants to cease the proceedings, she has every right to do so. If the lawyer wants to sue def for breach of contract, that matter is between the two of them, and does not need to concern beit din or pl. If it is a problem for def, it is a result of an unwise agreement in regard to money that was never coming to her.
P'ninat Mishpat (592)
Various Rabbis
147 - Steps Against a Uncooperative Litigant
148 - The Ability to Collect Interest and Fines Levied by Secular Court
149 - The Ability to Collect Interest and Fines Levied by Secular Court
Load More
Ruling: It is true that the Maharsham (I, 89) says that if a defendant willingly took part in adjudication at a secular court and lost, he cannot later sue in beit din to overturn the ruling. However, pl denies that they went to that court willingly but claims that they were forced to defend themselves when they were summoned there. Indeed someone who does not appear before the courts is judged anyway, often in a manner that is damaging. The Maharsham is clear that the reason the defendant in his case was prevented from going to beit din was that he did all sorts of extra actions that showed that he was fully interested in adjudication there. In our case, it was primarily def who had the obligation to summon pl to beit din, and there was little excuse for her not to have done so.
Even if we were to view pl as willingly taking part in the secular judicial process, that is only true in regard to the base claim. However, the great majority of the payment that is pending now is from the interest and fines and the fees of holp, which was certainly not accepted by pl. (Holp can be used even to enforce beit din rulings, just that when interest, fines, and fees are exorbitant, the matter is halachically problematic.) The aforementioned Maharsham says that even if the defendant, in his case, could not go to a retrial at beit din, charges that are clearly against halacha, such as interest and paying for the plaintiff’s time, may not be collected.
Def said that she cannot freeze the proceedings at holp because she made a deal with her lawyer that she would receive the principal won from her lawsuit, whereas the lawyer would be paid from the extra amounts levied. Thus, it is not her money to relinquish. Besides such an agreement being too strange to readily believe, a lawyer does not have his own rights in court but represents his client. If the client wants to cease the proceedings, she has every right to do so. If the lawyer wants to sue def for breach of contract, that matter is between the two of them, and does not need to concern beit din or pl. If it is a problem for def, it is a result of an unwise agreement in regard to money that was never coming to her.
