Introduction
A major issue that contemporary batei din grapple with is when to apply the Talmudic principle of dina d’malchuta 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 laws such as traffic regulations (see Shulchan Aruch C.M. 369 and our later chapter devoted to this issue). However, a major area of debate is the extent to which dina d’malchuta dina, should be employed when resolving a monetary dispute between two Jews.
In this essay, we will explore a case that was adjudicated by the beit din of Sderot that highlights the challenge of balancing the application of Halachah and civil law. Rav Yaakov Bareili, a Dayan 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.136For a discussion of publishing minority opinions, which seemingly violates Halachah (Shulchan Aruch C.M. 19:1), see Professor Eliav Schochetman's 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 he 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 d’Malchuta Dina
The Rama (C.M. 369:11) rules that beit din applies the principle of dina d’malchuta dina, when the law is issued l’takanat 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 Halachah 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!" The Shach maintains that no one would sanction following dina d’malchuta dina, when it contradicts Halachah outright. There is significant debate amongst the poskim regarding how to rule in this dispute.137See Teshuvot Chatam Sofer C.M. 44, Teshuvot Imrei Yosher 2:252:2, Teshuvot Doveiv Meisharim 77, Teshuvot Igrot Moshe C.M. 2:62, Kitvei HaGaon Rav Y.E. Henkin 2:96, Chazon Ish C.M. Likkutim 16, and Rav Hershel Schachter’s essay in The Journal of Halacha and Contemporary Society 1:122-128. Also see Gray Matter 3:146-147. According to those who follow the Rama, 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 because she is entitled to her salary even during the months after the birth, during which she legally is 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.
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 excuse the employer from having to pay the five months of salary.138We should note that the beit din panel unanimously agreed that dina d’malchuta dina applies even to laws issued by the Israeli government. This follows the ruling of the Shulchan Aruch (C.M. 369:6) that dina d’malchuta dina applies even to a Jewish king, the opinion of Rav Kook (Teshuvot Mishpat Kohen 144) that dina d’malchuta dina applies even in a democracy, and the view of Rav Ovadia Yosef (Teshuvot Yechaveh Da’at 5:64) that this principle extends to a Jewish government in Israel that does not abide entirely by Torah law.
Minhag HaMedinah
In monetary relationships, especially between employer and employee, minhag hamedinah, common business practice in that locale, determines what the assumptions of the parties were unless they explicitly stipulated otherwise (see, for example, Shulchan Aruch C.M. 331). As the Chazon Ish (C.M. Likkutim 16:9) puts it, “Minhag HaMedinah determines the intentions of the parties.” Thus, since it is common business practice to follow civil law in Israel, civil law can be considered part of minhag hamedinah even if beit dindoes not recognize the law as one made for the betterment of society. 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, even the disqualification of retroactive permits.
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 (Bei’ur Hagra E.H.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 should thus not be recognized by beit din. He cites a number of precedents, including a ruling of Rav Moshe Shternbuch (Teshuvot V’hanhagot 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 worked only for a very brief time 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 hamedinah139See Tosafot Bava Batra 2a s.v. B’gevil for a classic example where Chazal do not accept the legitimacy of a commonly accepted commercial practice. .
Pesharah
Israeli beit din arbitration agreements typically include a provision authorizing the beit din to adjudicate the dispute "in accordance with both strict Halacha and Pesharah" (equity; see Gray Matter 2:193-200 for further explanation of the concept of pesharah). Rav Bareili argues that it is inequitable to hold the employer responsible for payment of five months’ salary in this case because (as the beit din discovered during its hearing) 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 cites Rav Kook (Teshuvot Orach Mishpat C.M. no. 1), who explains that beit din, after first determining what strict Halachah demands, must then consider whether a more equitable solution is appropriate. Rav Kook notes that if beit din feels that the verdict demanded by strict Halachah is unfair due to the particular circumstances of the case in question, beit din should issue a verdict based on pesharah if it is empowered to do so by the arbitration agreement.
Accordingly, Rav Bareili felt that the beit din's mandate to consider pesharah precluded its 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 in severe violation of Halachah (see Shulchan Aruch C.M. 26 and Gray Matter 2:164-178). These Dayanim are aware of two common critiques of beit din: that contemporary batei din seem to arbitrarily choose when to follow Halachah in opposition to civil law and that contemporary Dayanim seem to arbitrarily decide when to rule in accordance with pesharah in contradistinction to strict Halachah.
I have been told that, in an attempt to counter such perceptions, some Dayanim seek to rule as closely as possible to strict Halachah and to implement dina d’malchuta dina and minhag hamedinah to the fullest extent allowed by Halachah. 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.”140In addition, to avoid some of these perceptions, some Dayanim offer a reasoned opinion in order to educate the parties regarding the grounds for following the din and for pesharah, even though Halachah and civil arbitration laws do not require the submission of a reasoned opinion (see Gray Matter 3:237-242)
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 to be a relevant factor because they wished to avoid the appearance of "arbitrarily" making use of equity as opposed to strict Halachah.
Conclusion
The intention of this discussion is 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. Some Dayanim believe that a broader application of civil law whenever permitted by Halachah and minimal application pesharah helps achieve the goal of Jews adjudicating their disputes within the community. Nonetheless, we must bear in mind that since the mandate of the beit din includes ruling in accordance with equity, the mitzvah of “tzedek tzedek tirdof,” “Justice, justice shall you pursue” (Devarim 16:20 and Sanhedrin 32b) requires the application of Pesharah in certain situations (Rav Kook, Teshuvot Orach Mishpat C.M. no. 1).