2020/5780
The RCA Prenuptial
The Rabbinical Council of America (RCA) prenuptial includes a clause that states, “Failure of either party to perform his or her obligations under this Agreement shall make that party liable for all costs, including reasonable attorney’s fees, incurred by one side in order to obtain the other party’s performance of the terms of this agreement.” If the Halacha does not call for reimbursement of litigation costs except for cases of frivolous behavior, what is the Halachic basis for including this clause in the RCA prenuptial?
The discussion begins with the Gemara (Bava Kama 112b), which teaches that an individual who is placed in Cherem (excommunication) for failing to appear in Beit Din for a Din Torah, must pay [1] for costs borne by the plaintiff for drafting the Beit Din’s excommunication proclamation. The Rosh (op. cit.) cites the Maharam of Rothenburg, who rules that this applies to all costs borne by the plaintiff to bring a recalcitrant party to Beit Din.
The Rishonim debate the scope of this rule. The Rama (Choshen Mishpat 14:5) rules that this rule applies even to recovering costs associated with having to bring a recalcitrant adversary to civil court. The Shach (ad. loc. number 13, citing the Maharshal) also rules accordingly. The Aruch HaShulchan (Choshen Mishpat 14:12) rules in accordance with the Rama and the Shach. Accordingly, the provision in the RCA prenuptial calling for the recovery of costs incurred from enforcing the agreement in civil court is in full accordance with the leading Ashkenazic authorities.
However, the Shulchan Aruch cites the Rashba (Teshuvot number 940) as ruling that these expenses are not recoverable. The question of whether this provision is acceptable for Sephardic Jews now emerges. This is quite a serious issue since Sephardic Posekim state that Sephardic Jews must follow Maran Rav Yosef Karo regarding all laws, especially in regard to monetary laws (Birkei Yosef Choshen Mishpat 25:27, Teshuvot Rav Po’alim 2:3, Teshuvot Yabia Omer 6 Choshen Mishpat 2 and introduction to Teshuvot Or L’Tzi’on 2:11). A Sephardic litigant, according to Rav Ovadia, may not say “Kim Li” (I follow) opinions that disagree with Rav Karo.
Garmi vs. Gerama
In order to answer this question we must understand the basis of the rulings of the Shulchan Aruch and Rama on this matter. The Vilna Gaon (Bi’ur HaGra Choshen Mishpat 14:30) explains that the debate hinges on a fundamental Halachic question – how to distinguish between Gerama and Garmi.
Gerama refers to indirect damage regarding which the Gemara states in many places (such as Bava Kama 56b) that Beit Din will not force someone to pay compensation. Garmi is a form of indirect damage regarding which Beit Din will demand the responsible party to pay. One of the great debates in Torah literature is how to distinguish between cases of Gerama and cases of Garmi.
Tosafot (Bava Batra 22b) cites two different views. Tosafot first cite Rabbeinu Yitzchak who believes that Garmi refers to a case where the perpetrator did damages to his fellow’s property himself and the damage occurred at the time of his action.
Tosafot then proceeds to cite the Ritzba who disagrees. The Ritzba rules that Garmi refers to indirect damage regarding which Chazal imposed a Kenas (penalty) requiring the one who did damage to pay. The Ritzba explains that this Kenas is imposed on any case which is of common occurrence. He notes that Chazal imposed this Kenas to avoid people perpetrating acts of indirect damage.
The Vilna Gaon explains that the Rashba cited by the Shulchan Aruch excuses the recalcitrant party from payment because the damage he did was indirect. The Rashba follows the view of Rabbeinu Yitzchak and rules that since the damage is not caused at the time of the recalcitrant party’s action, Beit Din will not force him to pay. [2]
The Rama’s view, on the other hand, follows that of the Ritzba. Since the refusal to adjudicate in Beit Din is sadly a common problem, it qualifies as a case of Garmi regarding which the recalcitrant party must compensate his adversary.
Based on this, we argue that this compensation clause is effective even according to Sephardic Jews. First, the Shulchan Aruch presents the Rashba as “Yesh Mi She’Omer” (there are those who say). Although he does not cite a dissenting view, he does allude to it.
Second, the reason behind the Rashba is that Beit Din cannot compel payment for damage done indirectly (Gerama). Bava Kamma 56b states that while Beit Din cannot compel payment in case of Gerama, where someone remains responsible to pay as far as “Dinei Shamayim,” his obligations to Hashem are a concern. Thus, we see that one who causes financial loss in the manner of Gerama is fundamentally obligated to pay, even if Beit Din cannot compel him to do so.
Finally, as noted earlier, the Shulchan Aruch rules in accordance with the view of Rabbi Yehuda that Kol Tnai SheBeMammon Kayam, all monetary agreements are valid even if they contradict pure Torah law. Thus, a Beit Din may compel a Sephardic Jew who signed the prenuptial to indemnify the party that needs to enforce the prenuptial agreement in a civil court. This is especially so in our case, since the Shulchan Aruch agrees that the recalcitrant is fundamentally obligated to pay even without signing such an agreement and since the Shulchan Aruch alludes to the dissenting views which the Rama and Shach codify as accepted Halacha.
The Power of the Prenuptial’s Compensation Clause
In my experience as a Get administrator and the experience of the directors of the Beth Din of America, the RCA prenuptial has proven itself to be enormously effective in facilitating divorce when appropriate and necessary.
A typical such situation is one in which the husband refuses to give a Get when the Beit Din determines that it is the right step for him to take. If he has signed the RCA prenuptial, the Beit Din will gently remind him of this, send him a copy of the agreement, and advise him to consult his attorney as to whether he must comply.
In almost all cases responsible attorneys advise their client to avoid challenging the RCA prenuptial. This is because not only will the husband wind up being obligated to make the payment of one hundred and fifty dollars per day, per the agreement, but he would also have to reimburse all fees expended if he were to lose a challenge to the RCA prenuptial in civil court. The prospect of having to pay such large sums motivates many reluctant spouses to comply with the terms set forth in the RCA prenuptial.
Conclusion
In general, the Halacha does not allow for the recovery of expenses involved in obtaining a successful decision in Beit Din. There are, however, exceptional situations in which such recovery is most appropriate. The clause in the RCA prenuptial agreement calling for indemnification for money spent in the enforcement of the RCA prenuptial is a most Halachically (for both Sephardic and Ashkenazic Jews) appropriate and time tested effective tool to resolve and avoid situations of Get refusal. We look forward to the day when all Jewish couples sign an appropriate prenuptial agreement before their marriage and that they live happy lives together in a manner that never makes a Get necessary.
[1] He will not be released from Cherem until he makes this payment.
[2] The Shulchan Aruch, however, does allow recovery of costs associated with obtaining a Seruv, a writ of recalcitrance from Beit Din, in accordance with the ruling of the Maharam of Rothenburg cited by the Rosh. The difference, explains Rav Moshe Feinstein (Teshuvot Igrot Moshe Choshen Mishpat 2:26), is regarding obtaining the Seruv, Chazal instituted a specific Kenas requiring indemnification.