6

In a case where secular law is at odds with Halacha, and one goes to a secular court to claim that which he is entitled to in secular law but not by Halacha, I know that he is transgressing chilul Hashem. My question is, is the property or money awarded to him by the secular court considered stolen?

A few simplifying assumptions:

  • Let us say that there is no question in either the secular law of the Halacha. Clearly according to Halacha it belongs to Ruven and according to secular law it belongs to Shimon.
  • Both parties are Jews.
  • Both parties would be willing to listen to the Beis Din if they went to Beis Din.
  • The secular law is fair.
  • This is not in Eretz Yisroel (to avoid any question if Dina Dimalchusa Dina applies there).
  • The property or money in question is not being held by either party (there is no mukzak).
  • The money in question is not in a bank account or investment. (Bank bylaws make things very different.)

Additionally, if the property is considered stolen after the fact, is asking the court to take action an act of stealing? (This of course gets into Ain Shliach Lidvar Aveirah.)

This question came up in a (hypothetical) case of inheritance, which is more inflexible than contract law in Halacha. Would that make a difference?

  • 1
    THere's a simple solution to this Dina Demalchusa case - just like our Beis Din has the right to disown property, so does the Malchus. Therefore don't think of if like if Reuven hands the money to Shimon, but the Malchus seizing the money from Reuben and then distributing it to Shimon. So there's no Halachic problem. – Al Berko Nov 25 '19 at 20:09
  • The state taking taxes and the using that money is certainly acceptable DDM. Even if, say, they fine someone in a car accident that the car of the one responsible is given to the one damaged. I could hear that any civil case is also not theft because of hefker. But I'm wondering if the act of bringing in the court and not just following Halacha makes things worse. – Mordechai Nov 25 '19 at 20:41
  • 1
    A possibly relevant law from Rambam (found through searching): המעיד על ישראל בערכאות של עובדי כוכבים והוציא ממנו בעדותו ממון שלא כדין ישראל מנדין אותו עד שישלם. So it seems that the witness has to pay the money back (under pressure of nidduy), but it doesn't say that the person who was awarded the money has to give it back. This might support @AlBerko's theory – b a Nov 26 '19 at 10:44
  • 1
    @ba, nice try. But the Gemara that the Rambam is coming from is a case of giving testimony on behalf is a gentile. – Mordechai Nov 26 '19 at 13:44
3

Rabbi Akiva Eiger writes on the Shulchan Aruch Choshen Mishpat 26:1

ואם הוציא ממון ע"י דין ערכאות אם אין כן בדיני ישראל הממון גזל בידו. ואם קידש בזה אינה מקודשת, והוא פסול לעדות כמו כל גזלן. (תשב"ץ בתשובות ח"ב ענין ר"צ)

If he took money from another through the courts, and he is not entitled to that money by Jewish law, the money is stolen. If he uses it to betroth a woman she is not betrothed to him, and his testimony cannot be accepted, as with any other thief.

| improve this answer | |
  • 1
    The Tasbetz there writes ודבר זה לרוב פשיטותו לא ניתן לכתב. He's downvoteing my question :) – Mordechai Nov 26 '19 at 19:54

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .