Mr. Weiss and Mr. Cohen had gotten into a legal disagreement over a broken contract. They were not able to resolve their disagreement and turned to litigation.
“I’m going to have to sue you,” threatened Mr. Weiss. “You owe me at least $20,000.”
“Go ahead!” responded Mr. Cohen. “You have no claim. I do ask, though, that we go before a beis din.”
“You’re just trying to weasel out,” retorted Mr. Weiss. “I’m going to sue you in civil court and you’re going to pay – but good!”
“It’s wrong to go before civil court when you can adjudicate in beis din,” Mr. Cohen admonished him. “Whatever halacha requires me to pay, I will.”
Mr. Weiss refused to listen and sued Mr. Cohen in civil court. After a brief legal battle, the civil court ruled that Mr. Weiss was entitled only to a small payment of $3,500.
“All I got in court is $3,500,” Mr. Weiss lamented to his cousin, Rabbi Mann.
“It’s a pity you went to civil court,” Rabbi Mann said to him. “Halacha demands adjudicating in a beis din; or at least suing first in beis din and receiving permission from the beis din to adjudicate in civil court if the other party refuses the summons from beis din. Anyway, in this particular case, I think you would have done better in beis din.” (C.M. 26:1-2)
Mr. Weiss went home. “Rabbi Mann is right; I really should have brought the case before beis din,” he thought. “But no loss! I can still do that. I’ll tell the beis din that I want to follow the halacha!”
Mr. Weiss turned to Rabbi Dayan’s beis din and filed a claim against Mr. Cohen. He did not mention that he had already brought the case before civil court.
When Mr. Cohen received the summons, he was furious. “After dragging me to civil court and losing, Mr. Weiss has the chutzpah to summon me to beis din?” he exclaimed. “I implored him numerous times to do so beforehand.”
Mr. Cohen sent a response to the beis din. “Mr. Weiss already sued me before civil court, against my will,” he wrote. “The case was already decided there that I need to pay only $3,500. I do not see the need to come before the beis din.”
When the secretary of the beis din received Mr. Cohen’s response, he showed it to Rabbi Dayan. “It seems that Mr. Weiss already sued in civil court,” he said. “Should we reopen the case?”
“If someone sued another in civil court and lost, and therefore turned to beis din, Beis Yosef [C.M. 26:7] writes that it seems beis din should refuse to adjudicate the case, even if he would win according to halacha,” answered Rabbi Dayan. “Beis Yosef notes that Maharik [187] cited an even more extreme ruling in the name of R. Yitzchak b. Peretz – that the ruling of the civil court in upheld on account of dina d’malchusa – but that the Mordechai [B.K. 195] seemingly maintains that beis din should adjudicate.”
“What does it say in Shulchan Aruch?” asked the secretary.
“The Shulchan Aruch, indeed, omits this halacha, but the Rama [C.M. 26:1] writes that beis din should refrain from adjudicating,” replied Rabbi Dayan. “He mentions also an alternative opinion that we accept the case unless the defendant already suffered some loss before the civil court.”
“Why should beis din refrain from adjudicating?” asked the secretary.
“The Tumim [26:2] suggests two possibilities,” replied Rabbi Dayan. “One is that by going to civil court, the litigant implicitly accepted upon himself their ruling and forwent his rights according to halacha. A person can accept the testimony or adjudication of people disqualified, according to halacha, to testify or judge. This still does not permit adjudicating before civil court, but grants halachic validity to their ruling, de facto.” (See C.M. 22:2)
