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- P'ninat Mishpat
Case: The plaintiff ¬(=pl) sued the defendant (=def) in secular court. He sent a letter of claim, which made it necessary for def to hire a lawyer and write a letter of defense, but they have not yet had a hearing. Plnow says that he wants to go to beit din and claims that he sued in secular court just so that def would have to respond and could not continue to be elusive. Def says that he would have been happy to go tobeit din, but since he already paid money in preparation for the secular court adjudication, he is now unwilling. He also suspects that pl changed his mind because he is afraid he would lose there, and def refuses to change venues on those grounds.
Ruling: The gemara (Gittin 88b) says that it is forbidden for Jews to adjudicate before a non-Jewish court even if they rule according to halacha. The Rambam (Sanhedrin 26:7) and Shulchan Aruch (Choshen Mishpat 26:1) strongly condemn such action. The consensus of the past generations’ poskim is that the prohibition also applies to going to the State of Israel’s secular courts (see Tzitz Eliezer XII:82; Yechaveh Da’at IV:65), which is what pl apparently did. Even according to pl’sexplanation that he did not plan to complete adjudication there, he still should have taken necessary steps according to the instructions of beit din (Shulchan Aruch ibid. 2).
P'ninat Mishpat (832)
Various Rabbis
415 - Control of Shul-Based Vending Machine
416 - Going to Beit Din After Suing in Secular Court – part I
417 - Going to Beit Din After Suing in Secular Court – part II
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What is the reason one could not come back to beit din, considering that if they do not rule, we do not know if the non-Jewish court ruling was correct? The Tumim (26:2) explains that it is based onkiblu alayhu, the idea that one can accept upon himself a judicial process that does not follow the standard rules of halacha. The Levush (CM 26:3) and the Netivot Hamishpat (26:2) say that it is a penalty against the one who improperly initiated the adjudication.
At what point should the halacha of not allowing a return to beit din set in? The Tumim points out that when one accepts something based on kiblu alayhu and did not perform an act of kinyan, he is able to back out until the ruling is finally rendered. He says that the same is true regarding adjudication in a non-Jewish court. Several Acharonimsay that also according to the explanation that the inability to return tobeit din is based on penalty, the penalty sets in only after there is a ruling.
Therefore, in our case, ostensibly pl should be able to return the adjudication to beit din, where it should have taken place originally. [Next time, we will see if pl’s intentions or the fact that he caused expenses to def makes a difference.]
P'ninat Mishpat P'ninat Mishpat: How Many Dayanim?
based on ruling 84139-1 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
P'ninat Mishpat P'ninat Mishpat: Multiple Agreements and Parties – part II
based on ruling 80082 of the Eretz Hemdah-Gazit Rabbinical Courts
Rabbis in Midrash
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