[By Rabbi Yair Hoffman for the Five Towns Jewish Times]

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 dollars, 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 a prohibition called going to “Arkaos.”

SOURCES

The prohibition of going to arkaos is found in two early sources. It is a braisah cited in tractate Gittin 88b as well as a Mechilta in the beginning of Parshas Mishpatim. The braisah cites Rabbi Tarfon who learns out of a verse in the Torah: “These are the laws that you shall place before them – before them, and not before gentiles.”

SHULCHAN ARUCH

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. Whosoever 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 Rama 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 evil-doer and it is as if he has blasphemed and cursed.. He has lifted his hand against the Torah of Moshe Rabbeinu. The Sma (CM 26:4) elaborates a bit more saying that it is as if he is saying that the Torah of Moshe Rabbeinu peace be upon him is not true.”

The Rashba, on the other hand, (Responsa Vol. VI #254) indicates that the reason is because 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 Bahalacha 1:3, by Rav Chaim Beinish). According to the 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 Gemorah in Gittin cites and expounds upon a Pasuk, the drasha seems not to expound upon the simple meaning of the Pasuk. Often this indicates that the halacha that is derived may actually be a debate among Poskim whether it is a Biblical law or a Rabbinic law. When we look at the Poskim we see that this is indeed 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 parshas Mishpatim also states that one who violates this “is violating a lav.” This can be understood as violating a negative commandmet attached to a positive commandment – but clearly it is Biblical. Rabbeinu Yonah (Shaarei Teshuvah 3:2) also writes that it is a Biblical violation.

On the other hand, the Avrohom Ben HaRambam in his commentary on the Torah (Mishpatim 21:1) writes that it is a Rabbinic violation. Rav Moshe Ben Yoseph 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 Boruch also understands it as a Rabbinic prohibition. The majority of Poskim, however, understand it as a full-fledged Torah prohibition.

REPERCUSSIONS OF ONE WHO SUES IN SECULAR COURT WITHOUT PERMISSION FROM BEIS DIN

The repercussions of suing someone in secular court without dispensation from Beis Din are most severe. Of course one should consult one’s own Rav or Posaik, 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], serving as a witness in a Beis Din [CM 34:2] (including at a wedding, on a Kesuvah, as an Aid Yichud), may not take an oath in a Bais Din (because he is suspected of falsely swearing), may not write a Sefer Torah, Tefillin or Mezuzos. He may also not serve as Shliach tzibbur on Rosh haShana and Yom Kippur and some say cannot do so during the week either. If it is a woman who has done so she is labelled 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 to be 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 PSAK BEIS DIN

What about going to court to enforce a ruling that was obtained in a Bais Din?

While pretty much 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 Shaivet HaLevi Vol. X #263 also permits it. Rav Moshe Feinstein zt”l in Igros Moshe CM Vol. II #10 implies that it is preferable still to get specific permission from a Bais Din before going to secular courts.

But what happened in our particular case?

The uncle and nephew settled their differences outside of court.

The author may be reached at [email protected]