(2008/5768)
A major issue that contemporary Batei Din (rabbinical courts) grapple with is when to apply the Talmudic principle of Dina DeMalchuta Dina, the obligation to honor the laws of land in which we reside. This principle certainly requires us to pay taxes and to obey civil rules such as traffic laws (see Shulchan Aruch Choshen Mishpat 369). However, a major area of debate is the extent to which Dina DeMalchuta Dina should be employed when resolving a monetary dispute between two Jews.
In this week’s essay, we will explore a case that was adjudicated by the Beit Din of the Israeli city of Sderot that highlights the challenge of balancing the application of Halacha and civil law. Rav Yaakov Bareili , a Dayan (rabbinical judge) on the panel that adjudicated this case, presents his minority ruling in Techumin (26:350-354). We shall present his argument and what appears to be the reasoning of the majority opinion, which to the best of my knowledge has not been published. For a discussion of publishing minority opinions, which seemingly violates Halacha (C.M. 19:1), see Professor Eliav Schochetman’s classic work Seder HaDin (pp. 371-374) and Techumin (19:235-238).
The Case
An employer fired his secretary when she was pregnant, in violation of an Israeli civil law that prohibits such a firing absent a special permit. The employer, on the other hand, explained that he fired her because the business was collapsing, not because of her pregnancy, and thus did not violate the civil law. Indeed, the business closed not long after the firing. The employer submitted an application for a firing permit five months subsequent to the firing, only to learn that such permits do not work retroactively. The secretary sued the employer in Beit Din for the five months of salary due to her in accordance with Israeli civil law.
Dina DeMalchuta Dina
The Rama (C.M. 369:11) rules that Beit Din applies the principle of Dina DeMalchuta Dina when the law is issued “LeTakanat Bnei HaMedinah,” “For the betterment of society.” For example, the Rama (C.M. 73:14) rules that Beit Din must honor a civil law forbidding a lender from selling an item he holds as collateral until one year has passed, even though Halacha permits a lender to sell the collateral after thirty days in case of default on payment of the loan. Such a law serves to better society, as the government perceives a need to stimulate the economy by easing the terms of repaying a loan.
The Shach (C.M. 73:39) strongly disagrees with the Rama. He writes: “Since according to Halacha the lender may sell the collateral after thirty days of default, how can we follow the Nochri laws and ignore the Torah law? God forbid - such a matter should not happen in the Jewish community!”
Nonetheless, many Poskim rule in accordance with the view of the Rama. These authorities include the Chatam Sofer (Teshuvot Chatam Sofer C.M. 44), Teshuvot Imrei Yosher (2:252:2), Teshuvot Doveiv Meisharim (number 77), Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:62), and Rav Yosef Eliyahu Henkin (Kitvei HaGaon Rav Y.E. Henkin 2:96).
It seems clear that Beit Din should recognize the Israeli law forbidding the firing of a pregnant woman. This law clearly betters society, as it encourages couples to have children. An employer is tempted to fire a pregnant employee, since she is entitled to her salary even during the months after the birth during which she is legally permitted to miss work to take care of the newborn. Accordingly, women living under economic stress might choose not to have children in order not to jeopardize their jobs. The law, accordingly, provides an incentive for families to have more children without the fear of losing employment.
Applying the Details of Dina DeMalchuta Dina
The Sderot Beit Din, though, grappled with the question of whether it should respect the aspect of this Israeli civil law that forbids retroactive permission to fire a pregnant employee under special circumstances. Rav Bareili feels that this feature of the law was not made for the betterment of society. Rather, it is simply a matter of how to efficiently manage the application of the law. Thus, he argues, since the Beit Din is convinced of the legitimacy of the claim of the employer that he fired the woman because of problems with the business and that he was unaware that the law could not be applied retroactively, it is authorized to grant the retroactive exemption from the civil law and exempt the employer from having to pay the five months of salary.
We should note that the Beit Din panel unanimously agreed that Dina DeMalchuta Dina applies even to laws issued by the Israeli government. This follows the ruling of the Shulchan Aruch (C.M. 369:6) that Dina DeMalchuta Dina applies even to a Jewish king, the opinion of Rav Kook (Teshuvot Mishpat Kohen 144) that Dina DeMalchuta Dina applies even in a democracy, and the view of Rav Ovadia Yosef (Teshuvot Yechaveh Daat 5:64) that this principle extends to a Jewish government in Israel that does not abide entirely by Torah law.
Minhag HaMedinah
Another reason for Beit Din to accept the civil law is that monetary relationships, especially between employer and employee, very often follow Minhag HaMedinah, common business practice in that locale, unless the parties explicitly stipulated otherwise (see, for example, Shulchan Aruch C.M. 331). As the Chazon Ish (C.M. Likkutim 16:9) explains, “Minhag HaMedinah determines the intentions of the parties.” Rav Bareili reports that his two colleagues on the panel believed that it should be assumed that the employer hired the secretary in accordance with the Minhag HaMedinah, which included the application of all the details of the law.
Rav Bareili, though, argues that the Rama (C.M. 331:1) rules that Minhag HaMedinah governs only when it is a common matter and has occurred numerous times. The Vilna Gaon (Beiur HaGra Even HaEzer 66:48, in a related context) explains that one may assume the intention of the parties was to follow the Minhag HaMedinah only if the Minhag “was known to all.” Rav Bareili argues that the rule that special permission to fire a pregnant employee does not apply retroactively is not sufficiently well-known to be recognized as a Minhag HaMedinah.
Moreover, Rav Bareili argues that this particular aspect of the law is arbitrary and unjust and thus should not be recognized by Beit Din. Among his precedents, he cites a ruling of Rav Moshe Shternbuch (Teshuvot VeHanhagot 3:472), in which the latter recognizes severance pay as a legitimate Minhag HaMedinah, since it is just and fair. However, the law entitling severance pay to a worker who did not work for an entire year is incompatible with the Torah view of justice in the context of the particular case that he adjudicated. As such, Rav Shternbuch concluded that such an unfair rule does not qualify as a legitimate Minhag HaMedinah.
Pesharah
Israeli Beit Din arbitration agreements typically include a provision authorizing the Beit Din to adjudicate the dispute “both in accordance with strict Halacha and Pesharah” (equity; see my Gray Matter 2 pp. 193-200). Rav Bareili argues that it is inequitable to hold the employer responsible for payment of five months salary in this case, because it emerged from the Beit Din hearing that the employer had sought to fire the secretary before she had become pregnant. She had pleaded with the employer to delay the firing for three months in order for her to qualify for unemployment insurance. He complied with her request, and it appears that the secretary, in turn, attempted to cynically take advantage of his kindness.
Rav Bareili notes the primary responsibility of Beit Din to rule in accordance with Torah law. He cites Rav Kook (Teshuvot Orach Mishpat number one), who explains when it is appropriate for the Beit Din to rule in accordance with equity when empowered to do so by the arbitration agreement:
Accordingly, Rav Bareili felt that the Beit Din’s mandate to consider Pesharah precluded requiring the employer to pay the entire five months’ salary.
The Majority Opinion
I surmise that the majority opinion in this case, which ruled in favor of the secretary, had practical considerations. Many Dayanim today, especially those who serve the Modern Orthodox community, seek to make Beit Din an attractive option for people to resolve their disputes so that they will not use civil courts, which is a severe violation of Halacha (see Shulchan Aruch C.M. 26 and my Gray Matter 2 pp. 164-178). These Dayanim are aware of two common critiques of Beit Din: that contemporary Batei Din seem to arbitrarily choose when to follow Halacha as opposed to civil law, and that contemporary Dayanim seem to arbitrarily decide when to rule in accordance with Pesharah in contradistinction to strict Halacha.
I have been told that, in an attempt to counter such perceptions, some Dayanim seek to rule as close as possible to strict Halacha and to implement Minhag HaMedinah to the fullest extent allowed by Halacha. For example, the Beth Din of America, in its Rules and Procedures (available at www.bethdin.org), states in section 3 (e):
In situations where the parties to a dispute explicitly or implicitly accept the common commercial practices of any particular trade, profession or community… the Beth Din will accept such common commercial practices as providing the rules of decision governing the decision of the panel to the fullest extent permitted by Jewish Law.
Accordingly, the Beit Din ruled in favor of the secretary because her view aligned more closely with the straightforward Minhag HaMedinah, which did not authorize the retroactive permit. The Dayanim did not consider Pesharah as a relevant factor because they wished to avoid the appearance of “arbitrarily” making use of equity as opposed to strict Halacha.
Conclusion
It is the intention of this discussion to enlighten our readers regarding the thought processes and approaches of contemporary Batei Din and to encourage the use of Beit Din as opposed to civil court whenever possible.
The intention of the clause “both in accordance with strict Halacha and Pesharah” is for Dayanim to rule in two manners. They should determine the application of pure Torah law to the case at hand, and they should see if the Halacha is not far from an equitable resolution of the case at hand. Then they should rule in accordance with the strict Halacha. If, however, they perceive that the application of the strict Halacha is inequitable, then a compromise should be made. Since the mandate of the Beit Din includes ruling in accordance with equity, the Mitzvah of ‘Justice, justice shall you pursue’ (Devarim 16:20) requires the application of Pesharah.