- This topic has 7 replies, 5 voices, and was last updated 12 years, 9 months ago by .
-
Posts
-
If a financial issue involving two Jews results in a difference in outcome whether you utilize civil law or Jewish law, which one prevails? i.e. If one law system says he is liable to pay the other party while the other law system says he is not liable to pay. Or one has a higher amount liable to be paid to the other party than the other law system.
Some examples might be if someone opened a toy store literally next door to an existing toy store. Civil law encourages competition and this is entirely legal. But in Jewish law it may not be. And if it was done contrary to halacha, the new store owner might have a liability for damages to the original store owner. Another example might be personal (not corporate) bankruptcy. He still owes money al pi din, though not according to civil law. Another example is asset separation in divorce are completely different between the two systems. Another type of example might be if a property can legally (civilly) take certain actions on a neighbors property, even though halachicly he can’t. (Again, personal property – not corporate property.)
In America, the Beis Din has arbitration power. While I can’t say what that means about the specific examples you brought up, it does mean that even where civil law would say differently, a secular court could potentially compel adherence to the ruling of the beis din assuming both parties willingly submit to arbitration with BD as arbiter. Considering that you’re kinda halachically obligated to sort these things out in BD rather than secular court, I would hope that 2 frum Jews with a civil dispute would indeed be willing to appoint a BD as arbiter.
Well, if you owe money al pi din and don’t pay it, you are stealing.
However, the civil law may affect what the din torah is as well. For example, I’d wonder if personal bankruptcy would be recognized by the torah, since when you lend money it is essentially al tnai that I can go bankrupt and not pay you back.
Once we go that far, we might wonder whether everything we do is essentially al tnai like that. Like if you buy a car, you might imagine it is al tnai that there is a Lemon Law. Or that if you sell shares in a public company, it is al tnai you won’t break the SEC rules.
Hmmm.
Popa: That may well be the case for a number of reasons.
1. As you pointed out, there may be an implicit tenai in this country that when Jews act in the public sphere they act and expect others to act on the basis of Federal and applicable State law. Were it gets really fuzzy is how far you take the implicit tenai. In the case of bankruptcy it isn’t too hard to conclude (as many poskim have) that when a Jewish lender formally extends credit to another Jew he does so expecting to be bound by bankruptcy laws and those laws are halachicly incorporated into the agreement between the borrower and lender. The same would be true for many other cases were individuals enter voluntary commercial relationships. It gets more complicated when those relationships are not voluntary or result from chance or the unilateral action of one party. For example, what about tort cases; do parties go about life conducting themselves expecting to be subject to american law or halacha in these areas. A less likely case is the one posed by the OP with respect to business competition; a Jewish merchant might expect that another Jew won’t open a competing store down the block, but he certainly opened his business expecting that a non-Jew might do so. Does that change the calculus?
2. A more expansive justification would be a general reliance on minhag hamedina. If people (that includes the non-Jewish population) entering commercial relationships generally accept certain norms (provided by secular law), the minhag hamakom might bind Jewish relationships too, sometimes even if the parties stipulate otherwise. The applicability of minhag hamakon is limited, however, to cases were halacha recognizes that the intentions and mindsets of the parties control the terms of the relationship.
Of course, none of this says anything about using arkaos to enforce secular law; its really about whether, if you go to a good beis din, the beis din will be applying local law to decide the case, or will resort to the default rules in shulchan aruch.
A bet din might even decide to pasken secular tort law on the assumption that in a democracy people accept on themselves obligations that are enacted by their representatives (Rav Herschel Schecter holds that a democracy is a shutafut between all citizens Jews and Goyim alike).Even if that is not din they might use it in their power to make a peshara. As for business competititon, the whole purpose of limiting competition is to protect people’s parnassa. If the fact that a Jew does not open a competing store just means that a Gouy will the purpose is not served.
BTW, there is bankruptcy in Tora law. It’s called “shmittat kesefim”. While Hillel effectively eliminated it with the prozbul this could be a snif for a bet din to patur the bankrupt.
Avi K: If your interested in this kind of stuff, you may want to look into various shailos u’teshuvos of the rishonim (specifically rashba, rosh, maharam m’rottenburg) who deal extensively with the halakhic basis for popular majoritarian government. I haven’t seen or heard r’ shachter’s views on this, but its worth noting that almost all rishonim rejected shutfus as a viable model for republican/democratic government because it would create many administrative difficulties (i.e., you would need unanimous consent to enact any new law; you would need a kinyan among everybody every time you enact a new law; you would have no basis for legislating in non-monetary areas; and a host of other issues).
RSRH, can you give me the citations? All those rishonim dealt with absolute Goyish monarchies.Jews were not considered subjects but guests.
The autonomous Jewish kehillot, on the other hand, were organized more or less democratically (there were limitations as to who had the right to vote – such as paying taxes – with which the Rishonim dealt as well as limitations on the power of the majority over the minority and the power of minhag as a basis for law).
The Rashbam says (Baba Batra 54b) that the basis for dina demalchuta dina is popular acceptance of the government even if not unanimous and that an individual cannot opt out. If I remember correctly the Rashba holds that shutafut is the basis of the kehilla and also holds that an individual may not opt out.The problem you cite is solved by the idea of rubo kekulo (Rema Choshen Mishpat 163:1)and representative bodies (shiva tuvei ha’ir – see Choshen Mishpat 2:1 with Rema). .Rav Shachter discusses specifically the issue of taxes (it can be found in “Einayim L’Torah”, Volume 20, Number 9 and is available on-line) but it is clear from the that the community council (or whatever representative body is established) has the power to enact laws for public order and safety as does a king.Much has been written on this subject by modern poskim and articles can be found in publications such as “Techumin”.
- You must be logged in to reply to this topic.