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based on ruling 79137 of the Eretz Hemdah-Gazit Rabbinical Courts

Making Up for Unpaid Employment Benefits – part IV

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Beit Din Eretz Hemda - Gazit

Adar I 30 5782
Case: The defendant (=def) is an NPO that runs various educational institutions, including the one that the plaintiff (=pl) started to head in 5769. Soon after pl started, def ran into financial difficulties, and in a meeting of heads of def’s programs, many heads agreed to cuts in salary to keep institutions open. Pl is now, after a few years, suing for the following matters: 1. The reduction in salary, which def forced on pl. 2. D’mei havra’ah (recreational payment) for 3 years, part of which def agrees to. 3. Loss of special rights that pl had with a pension fund, which he lost when def delayed payment to the fund, which def had promised, and despite warning. 4. A percentage of the fundraising sums pl raised on trips abroad, which def promised pl he would receive but did not give him (22,868 NIS).



Ruling: We have discussed all of the claims of the suit. Now we will examine def’s offsetting claim of hityashnut (statute of limitation), that too many years have gone by since the events that caused the obligations. Def claims that this is a sign that the claims are untrue and that Israeli law does not allow such claims to be presented to court.

Def agreed to pay part of the d’mei havra’ah and is not employing hityashnut regarding the basic obligation and therefore it does not apply to the sum that is beyond what def admits either. Hityashnut, then, is pertinent here only regarding damage to pl’s pension.

When there are grounds for payment, we do not say that the passing time without a claim is a proof of mechila and that beit din must be suspicious about the fact that the claim was raised late unless the suspicion has specific merit (Shulchan Aruch, Choshen Mishpat 98:1-2). Thus, Halacha does not fundamentally recognize hityashnut. The likely difference in this matter between Halacha and secular law is that Halacha is more concerned with justice than with "proper procedure" (one should make his claim promptly and allow the obligated to "move on") (Mishpetei Uziel IV:28). Beit din need not be suspicious of the claim regarding the pension because def agrees with the claim’s factual basis.

Some poskim entertain the possibility of hityashnut entering Halacha based on accepted practice (see Pitchei Choshen, Halva’ah 2:(72)). Our beit din accepts this approach when there is such a minhag, including when it developed because of the law. However, this applies to obligations that are created due to agreement between the parties, not in a case like ours when it is based on damages, when def caused pl to rely upon him and failed to follow through.

Additional reasons that hityashnut does not apply here: Israeli law views hityashnut as a matter of court procedure, not of the forfeit of the obligation. Additionally, while the law applies to arbitration, religious courts were excluded from the law (because they are entitled to their own procedures). Finally, the law requires a litigant to invoke hityashnut at the first opportunity. Def did not do so at the first hearing, but only in later written submissions.

את המידע הדפסתי באמצעות אתר yeshiva.org.il