By Rav Shlomo Cohen
In two previous articles on the proposed law to make the recovery of Nazi bounty easier, (The Holocaust Expropriated Art Recovery Act) it was explained that there is a contradiction in the way bais din will rule and the ruling in a secular court.
In the case of plundered moveable property, bais din would rule that the property itself need not be returned without compensation being paid to an innocent buyer, while the proposed law requires its return without compensation, and in the case of plundered real estate also, the buyer is protected in Jewish monetary law.
This contradiction raises the question as to whether a religious Jew can accept a sum awarded to him by a secular court, which is not due to him under Jewish law.
For example, where the buyer of a painting, stolen from its owner by the Nazis, is a secular Jew who refuses to accept the authority of bais din, requiring the original owner to sue in the secular courts (having received permission from bais din to do so), the outcome may be that the buyer is required to return the painting to its owner without receiving any compensation, while bais din would not rule so.
The question which arises is whether the religious Jew is allowed to accept and keep the painting awarded to him, which according to Jewish law is not due to him, or whether he is obligated to return the painting awarded and abide by the way bais din would rule.
In any situation, where a Jew refuses to accept the authority of bais din, the custom is that bais din will summon him three times, and only after he fails to appear on all occasions may he be taken to a secular court. This process can be shortened where it is clear that the party will not come to bais din, or where he declares as such.
In the case of a gentile who is taken to secular court by a Jew, the question does not arise, as the gentile accepts willingly the ruling of the secular court, but in the case of a secular Jew, this may not be so simple.
The Rama rules (Choshen Mishpat 26:1) that where a Jew took his fellow Jew to a secular court, lost the case, and now wishes to ‘try his luck’ in bais din, bais din should refuse to hear the case. While there is an opinion which argues that bais din should hear the case unless a loss has been caused to his fellow Jew, the Rama rules in accordance with the first opinion.
The Nesivos gives two possible explanations as to why the halacha is that bais din should not hear the case.
The first reason is that the Jew who chose to go to secular court has accepted upon himself the rules of that court, and therefore the sum ruled that he is required to pay was effectively agreed upon by him.
According to this explanation a religious Jew may certainly accept any sum awarded to him by the secular courts from a fellow Jew, with the exception of interest, for which agreement to pay does not help. (To receive interest from a fellow Jew is not a monetary transgression which can be foregone, but an issur, like desecrating the Sabbath, for which foregoing or agreement is irrelevant).
The second explanation is that our sages wanted to ‘fine’ the Jew who took his fellow Jew to a secular court and that is why they will not accept the case.
According to this second reason, it does not follow that a sum awarded in contradiction to Jewish law can be kept. In fact, this explanation says that the sum awarded is not due to the Jew who ‘won’, and in actual fact the case should be heard again in bais din, but as a punishment to the wayward Jew, it will not be.
It therefore follows that where the secular Jew who ‘lost’ pays his fellow Jew the sum that he thinks he owes him, he is doing so mistakenly, as he does not know that in Jewish law the sum is not owed at all. Were he to know, he would not pay, and according to this opinion, only if he is made aware of this fact, and nevertheless pays, would our religious Jew be able to accept the payment with a clear conscious. (It may be sufficient to tell him that ‘you know in bais din the case wouldn’t have finished like it did’, and for him to answer ‘I don’t care’.)
The Nesivos explains that another difference between these two explanations would be where the party that won bribed the judge. According to the first opinion the ruling is null and void, while according to the second, it is not.
The conclusion of the Nesivos is that the halacha is in accordance with the second opinion, that the reason why bais din will refuse to hear the case is a fine, and therefore where a sum was awarded to the religious Jew which is not in accordance with Jewish law, it should be returned.
The halacha is that in any case of monetary law, where there are two opinions, and no clear halachic decision between them, the party in possession can claim kim li (that the halacha is in accordance with the opinion which is in his favor). It could be argued that in the case of a ruling from a secular court, which will be enforced by the authorities, any sum awarded is effectively in the possession of the party it was awarded to. This would mean that in any such case, our religious Jew could claim that the secular Jew agreed to be judged by the secular laws, and keep the sum awarded.
However, since there is a chance that this sum is in fact stolen, it would seem that the advice to a G-d fearing Jew would be to return any such sum.
Therefore, to conclude, where a religious Jew was forced to take his fellow secular Jew to a secular court, and was awarded a sum that is not due to him according to Jewish law, while there are halachic grounds to keep the sum awarded, it would be praiseworthy to return the sum after consultation with bais din.