(based on ruling 75073 of the Eretz Hemdah-Gazit Rabbinical Courts)
Case: The plaintiff (=pl) sued the defendant (=def) in beit din for causing a traffic accident that damaged his car. Def says that he is not a party to adjudication, as pl can sue his insurance company, who accepts responsibility for damages, but pl wants to sue def personally. Def complains that since the insurance company rejects adjudication in beit din, any award made in beit din will have to come personally from him.
Ruling: Should pl have wanted to sue the insurance company, who see themselves as the defendants in such cases, directly in secular court, he would be allowed to do so because these companies consistently refuse to adjudicate in beit din (see Kesef Hakodashim 26:1). After pl sued def directly in beit din, can def deflect pl to the insurance company and thus to secular court? While we understand def’s desire to not lose insurance coverage, is that grounds to prevent pl from suing him in beit din?
Our position is that def has a right to pass the obligation over to the insurance company for the following reasons. First, the intention of everyone who uses the road is that in a case of an accident, the damager can involve his insurance company. This is the custom of society including G-d-fearing people.
Does this custom have halachic validity, considering that a custom to go to a non-Jewish court is invalid (Shulchan Aruch, Choshen Mishpat 26:3)? The S’ma (ad loc.) points out in that context that according to the Rosh, if sides made a kinyan obligating themselves to go to non-Jewish court and there are rights that one can receive only there, it is permitted to go. Our case of an agreement with the insurance company is similar, despite the distinction that the agreement is not between the litigants. Other Acharonim differ whether to accept the S’ma (Netivot Hamishpat 26:10) or not (Taz, Aruch Hashulchan) or whether it depends if the kinyan was made before or after the dispute arose. While generally we would not rule based on this S’ma, we can use it to justify the minhag.
The Maharshach (II:229) similarly justified the minhag to adjudicate before arbitrators of a professional group because the sides interacted based on that assumption. While there is a difference in that there, the adjudication is a result of an existing agreement between the sides and here the nature of the adjudication is about independent damage payments, the principle is still applicable.
The existence of insurance to cover people who lack the ability to make large payments without financial collapse is positive. If religious people would be prevented from using them due to a prohibition to go to secular court, this would cause great damage to the community. This will change only when there will be insurance companies that allow adjudication in beit din.
Furthermore, a reason given for the prohibition of going to secular court is that it gives it seniority over beit din (see Rashi, Shemot 21:1). This does not apply to def, who would adjudicate in beit din if it would not cause him great loss. This is similar to the gemara’s (Gittin 44a) permission to go to non-Jewish court to avoid great loss (see also, Rav E. Bazri in Orayta 17).
Therefore, we cannot require def to adjudicate in beit din. Pl may receive from the insurance company any award made by the court, since the company accepted upon themselves to pay under such circumstances (see Darchei Hora’ah, vol. V & VI).
Bemare Habazak - Rabbis Questions (431)
Rabbi Daniel Mann
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Case: The plaintiff (=pl) sued the defendant (=def) in beit din for causing a traffic accident that damaged his car. Def says that he is not a party to adjudication, as pl can sue his insurance company, who accepts responsibility for damages, but pl wants to sue def personally. Def complains that since the insurance company rejects adjudication in beit din, any award made in beit din will have to come personally from him.
Ruling: Should pl have wanted to sue the insurance company, who see themselves as the defendants in such cases, directly in secular court, he would be allowed to do so because these companies consistently refuse to adjudicate in beit din (see Kesef Hakodashim 26:1). After pl sued def directly in beit din, can def deflect pl to the insurance company and thus to secular court? While we understand def’s desire to not lose insurance coverage, is that grounds to prevent pl from suing him in beit din?
Our position is that def has a right to pass the obligation over to the insurance company for the following reasons. First, the intention of everyone who uses the road is that in a case of an accident, the damager can involve his insurance company. This is the custom of society including G-d-fearing people.
Does this custom have halachic validity, considering that a custom to go to a non-Jewish court is invalid (Shulchan Aruch, Choshen Mishpat 26:3)? The S’ma (ad loc.) points out in that context that according to the Rosh, if sides made a kinyan obligating themselves to go to non-Jewish court and there are rights that one can receive only there, it is permitted to go. Our case of an agreement with the insurance company is similar, despite the distinction that the agreement is not between the litigants. Other Acharonim differ whether to accept the S’ma (Netivot Hamishpat 26:10) or not (Taz, Aruch Hashulchan) or whether it depends if the kinyan was made before or after the dispute arose. While generally we would not rule based on this S’ma, we can use it to justify the minhag.
The Maharshach (II:229) similarly justified the minhag to adjudicate before arbitrators of a professional group because the sides interacted based on that assumption. While there is a difference in that there, the adjudication is a result of an existing agreement between the sides and here the nature of the adjudication is about independent damage payments, the principle is still applicable.
The existence of insurance to cover people who lack the ability to make large payments without financial collapse is positive. If religious people would be prevented from using them due to a prohibition to go to secular court, this would cause great damage to the community. This will change only when there will be insurance companies that allow adjudication in beit din.
Furthermore, a reason given for the prohibition of going to secular court is that it gives it seniority over beit din (see Rashi, Shemot 21:1). This does not apply to def, who would adjudicate in beit din if it would not cause him great loss. This is similar to the gemara’s (Gittin 44a) permission to go to non-Jewish court to avoid great loss (see also, Rav E. Bazri in Orayta 17).
Therefore, we cannot require def to adjudicate in beit din. Pl may receive from the insurance company any award made by the court, since the company accepted upon themselves to pay under such circumstances (see Darchei Hora’ah, vol. V & VI).
