By Rabbi Meir Orlian
Mr. Weiss and Mr. Cohen entered into a legal disagreement over a broken contract. “I’m going to sue you in court for $20,000,” threatened Mr. Weiss.
“Go ahead; you have no claim!” responded Mr. Cohen. “I ask, though, that we go to a beis din. It’s wrong to go to civil court when you can adjudicate in beis din. Whatever halacha requires me to pay, I will!”
However, Mr. Weiss refused to listen and sued in civil court. The court ruled that Mr. Weiss was entitled only to a small payment of $3,500.
“It’s a pity you went to civil court,” Mr. Weiss’s cousin said to him. “Halacha demands adjudicating in a beis din, or at least suing in beis din and receiving permission from them to adjudicate in court if the other party ignores the summons from beis din. Anyway, in this particular case, you would have been awarded more in beis din,” (C.M. 26:1–2).
Mr. Weiss went home. “I guess I should have brought the case to beis din,” he thought. “But I can still do that! I’ll tell the beis din that I want to follow the halacha!”
Mr. Weiss turned to Rabbi Dayan’s beis din and filed a claim against Mr. Cohen. He did not mention that he had already brought the case before civil court.
When Mr. Cohen received the summons, he was furious. “After dragging me to civil court and losing, Mr. Weiss has the chutzpah to summon me to beis din?” he exclaimed.
Mr. Cohen responded to the beis din: “Mr. Weiss already sued me in civil court, against my will. The judgment was that I need to pay only $3,500. I do not see the need to come to beis din.”
When the secretary of the beis din received Mr. Cohen’s response, he showed it to Rabbi Dayan. “It seems that Mr. Weiss already sued in civil court,” he said. “Should we reopen the case?”
“If someone sued another in civil court and lost, and then turned to beis din, Beis Yosef (C.M. 26:7) writes that it seems beis din should refuse to adjudicate the case, even if he would win according to halacha,” answered Rabbi Dayan. “Beis Yosef notes that Maharik (#187) cited an even more extreme ruling—that the ruling of the civil court is upheld on account of dina d’malchusa—but that the Mordechai (B.K. #195) seemingly maintains that beis din should adjudicate.”
“What does it say in Shulchan Aruch?” asked the secretary.
“The Shulchan Aruch omits this halacha, but the Rema (C.M. 26:1) rules that beis din should refrain from adjudicating,” replied Rabbi Dayan. “He also mentions another opinion to accept the case unless the defendant already suffered some loss before the civil court.”
“Why should beis din refrain from adjudicating?” asked the secretary.
“The Tumim (26:2) suggests two possibilities,” replied Rabbi Dayan. “One, by going to civil court, the litigant implicitly accepted upon himself their ruling and ceded his halachic rights. A person can accept the adjudication or testimony of people disqualified, according to halacha, to judge or testify. This still does not permit adjudicating in civil court, but grants halachic validity to their ruling, de facto” (see C.M. 22:2).
“The other reason to refuse adjudicating is as a penalty to the litigant, who was wrong to turn to civil court,” continued Rabbi Dayan. “This reason is accepted by most Acharonim. Certainly, if the plaintiff was awarded a small payment by the civil court, but is entitled to more according to halacha, beis din should not enforce the additional amount, according to the Rema. Many maintain, though, that the defendant still has a personal obligation to pay what he owes according to halacha; others say that he does not, since the plaintiff gave up his right” (See Nesivos 26:2; Aruch Hashulchan 26:1; Tashbetz 3:68).
“So, what should I do about Mr. Cohen?” asked the secretary.
“If Mr. Cohen does not want to appear, we cannot demand that he come,” concluded Rabbi Dayan. “However, batei din will often accept the case if both parties request it, even after litigation in secular courts” (see also Shevet Halevi 9:287).
From The BHI Hotline:
The Obligation Of Heirs
Q. Yaakov died and asked in his will to be buried in Eretz Yisrael. His heirs realize that if they follow his wishes and bury their father in Eretz Yisrael, there will not be enough money left to repay his debts. Are the heirs obligated to follow Yaakov’s wishes even though it means that his debts will not be repaid, or should they bury him locally and use the funds saved to repay his debts?
A. Generally, there is an obligation for children to repay their father’s debts, and if necessary, they can be compelled to repay that debt against their will. Min haTorah, that obligation is in force only if the father bequeathed land. The Geonim enacted that even if the father bequeathed only movable property (metaltelim), the lender may take possession of those items to satisfy the debt. Even if the loan was made orally, the enactment is in force and if necessary, beis din will force the heirs to pay their father’s debt (C.M. 107:1).
If the deceased did not have assets to bequeath to his children, they are not obligated to repay their father’s debts from their personal funds. However, in a circumstance in which not repaying their father’s debt would categorize him as wicked, e.g., at one time he had the means to repay the debt but did not and subsequently went bankrupt, or if he borrowed money in the first place without the means to repay the debt, it is appropriate for the deceased’s sons to save their father from punishment and arrange for the creditor to forgive their father (Aruch Hashulchan 107:1).
If the estate of the deceased does not have sufficient funds to repay the deceased’s debts and pay for his burial, the creditor/s may demand the available funds even though it means that the burial of the deceased will be delayed. (A relative of the deceased may not delay the burial to collect his debt since that would violate the prohibition against disgracing the deceased—nivul ha’meis.) Therefore, when there are limited funds the deceased’s debts must be paid and communal tzedakah funds will cover the cost of the burial (Rema, C.M. 107:2 as understood by Shach 6).
In your case, the deceased’s debts should first be repaid, even though it means that they will not be able to fulfill his wishes to be buried in Eretz Yisrael, unless the children wish to use their own money for that purpose. However, it must be clear that they are not required to spend their own money to fulfill their father’s wish since the obligation to honor a parent requires a child to serve his parent, but any expenses that are incurred in the process are not their obligation.
In the event that the children used the money from their father’s estate to have him buried in Eretz Yisrael, they may be obligated to reimburse their father’s creditors since they took away the creditor’s ability to collect the debt (C.M. 107:4).
Money Matters: Purchasing “Discounted” Software
Q. There is a website or store, based in Asia or Eastern Europe, that offers computer software at substantial discounts, sometimes 10% of the retail value. Can I buy from them?
A. There is a good chance that the software they are selling is pirated. (Often their products are presented as OEM software—which will be addressed separately, b’ezras Hashem.)
According to the majority opinion that halacha recognizes ownership of intellectual property, the pirated software is considered stolen property. The fact that the site is readily available to all, and that many other customers purchase from it, does not permit you to purchase and use a pirated copy.
However, according to the minority opinion that halacha does not recognize ownership of intellectual property, the primary halachic concern is one of hasagas gevul (encroachment). One could possibly argue that since the website or store sells freely on a regular basis, your individual purchase does not impact the company’s revenues. The application of dina d’malchusa and minhag ha’medinah is also suspect in these places. Nonetheless, it is clearly considered something very improper even according to this opinion (see Emek HaMishpat, Zechuyos Yoztrim, Intro. 11:17; ch. 19:214). v
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail email@example.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to firstname.lastname@example.org.
By Rabbi Meir Orlian