Halachic Musings

By Rabbi Yair Hoffman

It happens every so often.

A former waiter, a high-school dropout, gets a job in real estate. And somehow, in relatively no time at all, he becomes a tycoon with a portfolio worth hundreds of millions of dollars.

In this particular case, the young tycoon lived locally and soon took a job with a local Five Towns real-estate firm. Soon, an uncle took the young man under his wing. In one deal, worth nearly $100 million, the uncle felt that the nephew had cut him out of the purchases.

And so, last August, the uncle sued the nephew.

So what’s the problem? The problem is that suing another Jew in court is a violation of the prohibition against “going to arkaos.”

Sources

The prohibition of going to arkaos is found in two early sources. A Beraisah cited in Tractate Gittin 88b as well as a Mechilta in the beginning of Parashas Mishpatim cites Rabbi Tarfon, who learns it from a verse in the Torah: “‘These are the laws that you shall place before them’–before them, and not before gentiles.”

The halachah is codified in the Choshen Mishpat section of Shulchan Aruch (26:1). It states, “It is forbidden to judge before gentile judges and their courts–even in regard to a law in which they follow Jewish law. This is true even if both parties wish to be judged in front of them. Whoever brings a judgment before them is a rasha. It is as if he blasphemed and cursed and laid his hand upon the Torah of Moshe Rabbeinu.” The Rema adds that the person should be placed under a ban.

Reasons

There appear to be two reasons in the Rishonim for the prohibition. The Rambam (Sanhedrin 26:7) writes that one who does so is an evildoer and it is as if he has blasphemed and cursed. The Sma (CM 26:4) elaborates a bit more, saying that it is as if he is saying that the Torah of Moshe Rabbeinu is not true.

The Rashba, on the other hand (Responsa Vol. VI #254), indicates that the reason is that the Torah wishes that every Jew be under the jurisprudence of the Torah and not a foreign set of laws.

The difference between these two reasons may be very significant (see Arkaos B’halachah 1:3 by Rav Chaim Beinish). According to Rambam, the prohibition would be violated as soon as one sought redress in gentile court. According to the Rashba the prohibition is violated only when a decision is rendered.

Biblical Or Rabbinic?

Although the Gemara in Gittin cites and expounds upon a pasuk, the derashah seems not to expound upon the simple meaning of the pasuk. Often this indicates that there may be a debate among poskim whether the halachah that is derived is a biblical law or a rabbinic law. When we look at the poskim, we see that this is the case.

The Radbaz (Responsa Vol I #172) writes that this is a biblical law. Rav Shmuel ben Yitzchok Sardi (1190—1256), author of the Sefer HaTrumos (62:1:4), cites a responsum of the Rif, who rules that it is biblical, as does Rav Shimon ben Tzemach Duran (1361—1444) in his Tashbatz (Vol. II #290). The Midrash Tanchuma in Parashas Mishpatim also states that one who violates this “is violating a lav.” This can be understood as violating a negative commandment attached to a positive commandment–but clearly it is biblical. Rabbeinu Yonah (Shaarei Teshuvah 3:2) also writes that it is a biblical violation.

Avraham ben HaRambam in his commentary on the Torah (Mishpatim 21:1) writes that it is a rabbinic violation. Rav Moshe ben Yosef Trani (1500—1580), also known as the MaBit, in his Kiryat Sefer (Sanhedrin chapter 26) writes that it is a rabbinic violation. The Sefer Mekor Baruch also understands it as a rabbinic prohibition. The majority of poskim understand it as a full-fledged Torah prohibition.

Repercussions
Of Secular Lawsuits

The repercussions of suing someone in secular court without dispensation from beis din are most severe. One should consult one’s own rav or posek, but the following guidelines have been written by a number of poskim.

One who does so is disqualified from being counted in a minyan (Kesef HaKadshim 26:1; see, however, Divrei Yoel Vol. II 135:8) or serving as a witness in a beis din (CM 34:2) or at a wedding on a kesubah or as an eid yichud. He may not take an oath in a beis din, because he is suspected of falsely swearing. He may not write a sefer Torah, tefillin, or mezuzos. He may also not serve as shaliach tzibbur on Rosh Hashanah and Yom Kippur, and some say he cannot do so during the week either. If it is a woman who has done so she is labeled as “one who has violated the religion.” (See Rabbi Akiva Eiger Tanina, Siman 82.)

Status Of A Secular Award

Any money that is awarded by a civil court that is above and beyond what he is entitled to according to halachah is considered stolen (CM 26:4). Furthermore, one who brought such a suit may be liable for any costs that he caused the defendant to incur.

Enforcing A P’sak Beis Din

What about going to court to enforce a ruling that was obtained in a beis din? While most poskim permit it, there is a debate as to whether it is preferable to get permission from a beis din to do so. The Knesses HaGedolah 26:14 cites the Rashach, who permits it. The Maharsham IV(5):105 and Rav Vosner, in Shevet HaLevi Vol. X #263, also permit it. Rav Moshe Feinstein, zt’l, in Igros Moshe CM Vol. II #10, implies that it is preferable to get specific permission from a beis din before going to secular courts.

But what happened in our particular case? The uncle and nephew settled their differences outside of court. v

The author can be reached at Yairhoffman2@gmail.com.

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