Recording Testimony in a Non-Jewish Court

(based on Shut Chatam Sofer, Choshen Mishpat 3)


Case: Reuven had lent money to Shimon. Shimon wrote a will in German, which was confirmed in the non-Jewish courts, in which he instructed his survivors in various matters, but he left out his obligation to Reuven. A day before he died, Shimon told his wife in front of valid witnesses that she should pay Reuven. Reuven is concerned that the witnesses will forget this over time. It is a problem to present the testimony before beit din because of the opinion (Shulchan Aruch, Choshen Mishpat 110:9) that beit din cannot accept testimony of an oral will that obligates minor orphans even in front of their legal guardian. Reuven wants to record the testimony in an official manner, in front of a non-Jewish court, so that the information will not be forgotten. Is this a violation of the prohibition on going before non-Jewish courts?

Ruling: The gemara (Gittin 44a) says that if a non-Jew seizes a Jew’s field and the latter is unable to recover it in either Jewish or non-Jewish court, he can receive payment for it and have the matter recorded in the non-Jewish court in order to save his money. Rashi says that this refers only to the signing of a document before the courts, and still special permission is required. On the other hand, Tosafot (ad loc.) demonstrates that there are ample sources permitting signing documents before the courts, and the only issue that required permission there is that the action finalizes the sale. Rashi’s opinion seems difficult and self-contradictory, as in Avoda Zara (13a) he allows using the courts for transactions between a Jew and a non-Jew, with the only issue being the proximity to pagan holidays.
It is therefore clear that the problem Rashi in Gittin was concerned with was selling land in Eretz Yisrael to a non-Jew, which is usually forbidden. Even when it had already been seized, we would think it is forbidden to confirm a non-Jewish court’s sovereignty over land in Eretz Yisrael. This was permitted only to help one whose land was seized.
The gemara (Gittin 8b) makes a special dispensation to allow a Jew to acquire land in Eretz Yisrael from a non-Jew and have a non-Jew make a contract before the non-Jewish court on Shabbat because it only compromises a Rabbinic violation that is twice removed from a Torah prohibition. The gemara discussed only Rabbinic violations of Shabbat and says nothing about the Torah-level law not to go before non-Jewish courts. The reason is that those courts’ involvement in an acquisition of land via contract is permitted, as it is not adjudication. Even the first gemara cited indicates that if the court was helping returnthe land to Jewish control it would have been permitted, and removingland in Eretz Yisrael from Jewish control is what raises the issues.
In the final analysis, it is permitted to have non-Jewish courts formalize the aforementioned testimony, even without formal permission from beit din (with such permission, they may even adjudicate – Choshen Mishpat 26). In this case, one does not give precedence to a non-Jewish court in regard to adjudication. The procedure is of a technical nature – to record information. When the orphans grow up, beit din will decide if and how to use the "testimony" as some form of evidence should there be a dispute. However, our expectation is that the orphans will agree to pay their father’s debt from the estate he left, and the information will just help convince them that Reuven’s claim is credible.