Halacha Date: 7 Adar 5779 February 12 2019
In the previous Halachot we have discussed that it is forbidden to go before either non-Jewish or secular Jewish courts to be judged. A very common question is: Since nowadays the rabbinical courts have no authority to obligate litigants to bring their cases before them, it happens that one may summon another individual to a Bet Din and the latter refuses to appear; the plaintiff has no choice but to then summon the defendant to a secular Jewish or non-Jewish court. What should one to do in this case?
Answer: The Gemara (Baba Kama 92b) states: “Rava told Rabba bar Mari: What is the source for the saying, ‘If you call your friend to rebuke him for his evil deeds and he ignores you, take a large wall and throw it upon him’ (i.e. allow him to stumble in his wickedness)? He replied that this is derived from the verse, ‘Since I have purified you and you have refused to become pure, you shall never again be cleansed from your impurity.’” The Rosh comments on this Gemara in the name of Rav Paltoi Gaon that if Reuven has a claim against Shimon and Shimon refuses to appear with him before a Bet Din, Reuven may summon Shimon to a civil court in order to extract the money Shimon owes him. The Sefer Ha’Terumah rules likewise and adds that when summoning the defendant to civil court, the plaintiff should claim as much money as he is entitled to based on Torah law. The Rambam rules in accordance with Rav Paltoi but adds that the plaintiff must first receive permission from a Bet Din before summoning the defendant to civil court. Maran Ha’Shulchan Aruch rules likewise.
This is indeed the common practice in rabbinical courts today that when one summons another to a Bet Din and the latter refuses to appear, the Bet Din then grants the plaintiff permission to subpoena the defendant to a secular Jewish or non-Jewish civil court.
Maran Rabbeinu Ovadia Yosef zt”l writes that when a religious attorney is requested to represent a Jewish individual who is suing another in a secular court (regarding a financial suit), according to Halacha he must avoid this, for by doing so, he is aiding a sinner who is summoning the defendant to a secular court against Torah law. Nevertheless, he is permitted to represent a defendant who has no choice but to appear in civil court because the plaintiff refuses to be judged by a rabbinical court and forces the defendant to appear in civil court (it is likewise permissible for a lawyer to represent the plaintiff if he has no choice but to summon the defendant to a secular court, as we have illustrated above). It is imperative that such an attorney consult a prominent halachic authority in order to know how to conduct himself in such situations.
In general, Maran zt”l would not encourage people to go and study (Israeli) law. We have heard that Maran zt”l instructed a college geared towards religious girls not to incorporate courses in law since it is inappropriate for us to involve ourselves in such secular laws to begin with. Nevertheless, if one has already passed the bar and become an attorney for whatever reason, one must behave based on the aforementioned guidelines and not be tempted to follow the path of fellow attorneys who may not be acting in line with the laws of our holy Torah.