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Parshas Mishpatim: Going to Non-Jewish Courts No definitive Halacha LeMa'aseh conclusions should be applied to practical situations based on any of these Shiurim.
The Gemara in Gittin (88b) derives from the opening Posuk of this Parsha (Shemos 21:1) that it is not permissible for Jews to go to gentile courts to settle their legal disputes, even in areas where the gentile laws are the same as Jewish laws. Rashi, commenting on that Posuk (Ibid. s.v. Lifnaihem), says that to do so constitutes nothing less than a Chillul Hashem, an idea echoed by the Rambam (Hilchos Sanhedrin 26:7) who uses similarly strong language in condemning a Jew who avails himself of gentile courts. The Shulchan Aruch (Choshen Mishpat 26:1) quotes the Rambam (Ibid.) and adds that this prohibition exists even if both parties agree to accept the decision of the gentile courts, known as "Arkaos." The Ramo, in a Teshuvah (Sheilos V'Teshuvos HaRamo Siman 52), forbids a Jew to even testify in a gentile court under certain conditions. Rather, Jews must go to a qualified Beis Din to resolve all of their legal matters. What if one cannot collect what is due to him in a Jewish court because the other litigant refuses to appear before, or abide by the decision of that court, and the secular authorities in that land will not force him to do so? Does going to a gentile court remain forbidden? The Rosh in Bava Kamma (Perek 8 Siman 17) quotes one of the Geonim who says that in such a case, a Jew may bring a fellow Jew to a gentile court to collect his due. The Rambam (ibid.) and the Shulchan Aruch (Ibid. Sif 2 and see Ibid. in Ramo) rule this way as well, stressing, however, that one must first attempt to resolve the problem in a Beis Din and then obtain the Beis Din's permission before going to a gentile court. In short, one may resort to a non-Jewish court only if refraining from doing so will result in the claimant being unable to collect that which is rightfully his. The Klei Chemdah, in his first essay on this Parsha, raises an interesting question. If it is indeed a Torah based prohibition for a Jew to go to non-Jewish courts (in the category of a Lav Ha'Bah B'Chlal Aseh, a prohibition derived from a positively expressed requirement), why should one ever be allowed to do so? We know that in general, one cannot violate any prohibition, even if one will otherwise incur a financial loss. One is in fact forbidden to violate a Lav, a prohibition from the Torah, even at the cost of losing all of one's possessions, as noted by the Ramo (Orach Chaim 656:1). Why then do the aforementioned Poskim allow one to violate this prohibition and go to a gentile court simply in order to avert the financial loss which would result from his being unable to collect what is due to him by law? The Klei Chemdah (Ibid.) first suggests an approach based upon a Gemara in Bava Kamma (27b) which says that a person may sometimes take the law into his own hands and even resort to force in order to prevent a loss for himself. The Shulchan Aruch (Choshen Mishpat 4:1) rules that one may even hit and injure another person, which is normally forbidden (See Shulchan Aruch Ibid. 420:1), in order to protect one's interests. Logically then, the Klei Chemdah (Ibid.) suggests, one should also be allowed to violate the prohibition against using Arkaos in order to protect one's interests. Ultimately, however, he rejects this approach because of various technical factors which must be present in order to allow one to prevent a loss for himself by using force, but which are not necessarily present in every case where one wants to make use of the gentile courts. Indeed, the Ramo himself (Ibid. Siman 4 Sif 1) says that using non-Jews to help prevent a financial loss remains forbidden, or at least improper, as implied by the Terumas HaDeshen (Chelek 1 Siman 304). The Klei Chemdah concludes (Ibid.) by saying that it is conceivable to suggest that going to Arkaos was forbidden only in cases where it would be possible to go to a Beis Din instead. The entire prohibition is only to avail one's self of a gentile court in place of a Jewish one. But when a Jewish court is unavailable, or unable to render, carry out, or enforce a decision, no prohibition to go to Arkaos exists to begin with. If one attempts, therefore, to settle a claim in a Beis Din and is, for whatever reason, unsuccessful in obtaining what is legally his, he may get permission to go to a gentile court because the whole prohibition against doing so was never intended to include such a situation. The problem with going to Arkaos apparently is that to do so is to give gentile courts credibility and preference over Jewish courts, and, as the S'ma (Choshen Mishpat Siman 26 Sif Katan 4) says, this implies that the laws of the Torah are not valid. If one first goes to a Beis Din, however, and subsequently obtains permission from them to go to Arkaos, this problem does not exist, and therefore there is no prohibition.
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