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+{
+ "title": "Rabbinic Authority II",
+ "language": "en",
+ "versionTitle": "merged",
+ "versionSource": "https://www.sefaria.org/Rabbinic_Authority_II",
+ "text": {
+ "Preface": [
+ "The present volume is the second in a series of volumes intended as an introduction to a subject perhaps unfamiliar to many – rabbinic authority in our halakhic sources. The subtitle, “The Vision and the Reality,” points to the themes being addressed in this work.",
+ "In addressing the halakhic “vision” of rabbinic authority, we will focus our attention upon a number of issues that the Torah-observant community has been grappling with during the last fifteen years. How does Halakha envision the professional responsibility of investment brokers vis-à-vis their investors? Is a manager of a “feeder fund” permitted to place money into the hands of a third party?",
+ "Given that there are brothers who are contesting in beit din (Jewish court) the right of their sisters to receive a share in the inheritance bequeathed by their father, how does Halakha view the propriety of a civil testamentary disposition? Will the estate be divided up as per the father’s instructions, or will the brothers as the Torah heirs receive the lion’s share of the yerusha, the inheritance?",
+ "With the advent of more incidents of spousal abuse and child abuse being perpetrated by members of our community, we address how the institution of beit din may serve to harness its authority and render monetary awards to the victims of abuse. Furthermore, we address whether there are any halakhic grounds for imputing institutional liability for acts of child abuse that occur under their watch.",
+ "The final component of my discussion of the “vision” of rabbinic authority is to deal with the role of a to’ein, a rabbinical advocate in the beit din process.",
+ "The “reality” of rabbinic authority presented in this volume deals with one type of authority, a beit din, which is an institution whose workings and contributions to “the path of Halakha” is unknown by most segments of our community. One of the primary reasons for communal unfamiliarity with this institution can be traced back to a Mishnaic ruling:",
+ "Upon finishing their deliberations, they would bring the litigants back to the courtroom, and the senior member of the panel would state: Mr. X, you are acquitted and Mr. X, you are liable.",
+ "In short, the rendering of a beit din decision is limited to identifying the party who is innocent and the party who is responsible. Beit din procedure does not mandate the furnishing of a reason for a beit din judgment. A review of various passages in the Talmud, as well the rulings throughout the ages until this very day, will show a consensus that, generally speaking, a dayan (an arbiter) may issue a psak din (a decision) bereft of any reasoning. However, prior to a beit din’s rendering of its judgment, should a litigant be concerned that a member of the panel or the entire panel be ignorant of Halakha, and thus concerned that an error may be committed in rendering the psak din, or suspicious that a member of the panel or the entire panel are biased or may have been bribed, in certain instances the panel is obligated to provide a reasoned opinion. The right to request a reasoned opinion is not limited to a situation whereby one is summoned by a standing beit din to appear in front of them to resolve a contentious matter. According to certain authorities, such a request ought to be equally acceded to by an ad hoc panel known as a zabla (acronym for “zeh boreir lo achad” – “one chooses one”). Today, many litigants are questioning a dayan’s credibility, halakhic expertise, and/or business acumen, and therefore, if at all possible, a reasoned opinion should be forthcoming in order to demonstrate that a dayan is not free to decide a case according to his personal whim, but is constrained by sources of halakhic reasoning and canons of interpretation. As Maharah Ohr Zarua and Havot Yair opine, each and every dayan should furnish the grounds for his decision.",
+ "Yet, in contemporary times, due to the fact that halakhic court procedure does not mandate the issuance of a reasoned opinion, it is unsurprising to find that dayanim have generally refrained from giving reasoned judgments. Nevertheless, certain dayanim who serve in the beit din networks of the Israeli Chief Rabbinate and Eretz Hemdah-Gazit located in Eretz Yisrael have submitted reasoned judgments.",
+ "For over a decade, I served as a dayan on the Beth Din of America, and I continue to appear on various zabla panels, as well as be a single arbitrator for the Hassidic, Modern Orthodox, Sefardic, and Yeshiva communities in the New York-New Jersey metropolitan area. A beit din’s role is to address matters of social interaction, including matters of personal status such as giyur, conversion, and grounds for kefiyat get, Jewish divorce coercion. In numerous instances, I have rendered reasoned opinions in commercial matters and domestic relations. Labor relations such as employment termination and severance awards, business matters such as partnership dissolution, the validity of minhag hasohrim (commercial practice), civil law, contractual agreements and preliminary agreements, the interpretation of contracts, the principle of indemnity in insurance law, ribbit-related issues such as recovery of economic loss of funds, consequential damages, lease, construction and loan agreements, self-dealing in non-profit organizations, and copyright infringement, have been the subjects under scrutiny in many of these cases. In addressing family matters, I have dealt with the grounds for issuing a divorce judgment, dividing up marital assets upon divorce, spousal support, child support and placement, filial obligations to one’s parents, and yerusha issues such as guidelines for drafting a halakhic will and the validity of a civil will and a trust agreement. The cases and materials found in the cases that have been chosen for this volume cover the range of subjects characteristic of all modern legal systems, namely dinei mamonot (civil matters), public and administrative law, family law, and philosophy of law. Given that Halakha is a religious legal system, the impact of issur ve-heter (ritual law) upon the monetary issues under investigation is equally dealt with in our judgments.",
+ "As members of our covenant-faith community, we are obligated to resolve our differences in a beit din rather than engage in transgression by resorting to litigation in civil court. Hence, the parties who appear in a beit din sign a shtar borerut (arbitration agreement), which empowers the panel of dayanim to resolve a matter in contention according to the norms of Halakha. Assuming the beit din process and its decision comply with the rules of secular arbitration law, the judgment will be enforceable in a competent civil jurisdiction in the United States.",
+ "In this volume, there are ten presentations that have been inspired by reasoned opinions handed down as a member of a beit din panel. The format of our presentation is to begin by offering a rendition of the facts of the case followed by the claims of the tove’a (plaintiff) and the reply and counterclaims of the nitva (defendant). Subsequently, there is a discussion of the halakhic issues emerging from the parties’ respective claims and counterclaims, followed by a decision rendered by the beit din panel. To preserve the confidentiality of the parties, names have been changed and some facts have been changed and/or deleted.",
+ "As we mentioned, accompanying these presentations is an examination of the halakhic identity of an investment broker, the propriety of a civil will, contemporary issues relating to domestic violence, and the role of a rabbinical advocate in the beit din process. Chapters one, three, and four have originally appeared in the pages of Tradition and chapter two has originally appeared in Hakirah. All of these essays appear here in an expanded form.",
+ "Hopefully our presentation will educate our community on the parameters and scope of rabbinic authority in general and “shatter the silence” surrounding the institution of beit din in particular. For those who avail themselves of the services of a beit din, it may be a life-defining moment. As such, it behooves our community to understand the institution, to become attuned to the dynamics of its decision making process, and to perform due diligence in deciding in which beit din to pursue one’s matters.
A. Yehuda (Ronnie) Warburg
27 Tishrei 5765
October 23, 2014"
+ ],
+ "Part I; Rabbinic Authority; The Vision": {
+ "Chapter 1; The Multifaceted Halakhic Identity of a Jewish Investment Broker": [
+ "The Multifaceted Halakhic Identity of a Jewish Investment Broker
Nearly all investors in the securities markets must avail themselves of the services of brokerage firms. Even sophisticated investors who choose their own investment portfolio usually rely on brokerage services to execute their transactions. Other investors rely on brokers for their professional and (hopefully) informed and competent advice. Given the irrational exuberance that affected many investors in the trading markets in the years prior to the 2008 market meltdown, it behooves us to address, from a halakhic perspective, some of the issues that emerge in a broker-client relationship.",
+ "The purpose of this essay is to address whether a Jewish investment broker or a manager who owns partnership interests in a fund, is liable for failing to comply with his Jewish client’s instructions to execute a buy or sell of an investment product. For example, if the broker fails to sell a security and the investment declines in value, is the broker liable for the loss? If the broker fails to buy a product he’s been instructed to buy, and the security increases in value, is the broker liable for the loss of anticipated profits? A reply to these questions and others requires us to examine the multifaceted identity of a broker or an investment manager of a fund as a shaliah, i.e., an agent, and as a shomer, i.e., a bailee.",
+ "A broker may service his clientele with two types of accounts. One type of a brokerage account is non-discretionary, which requires a customer’s authorization prior to the execution of any investment transactions. The duties of a broker handling such an account are more than simply being an “order taker” who competently executes a securities transaction for a client who manages his own investment portfolio. In the absence of any written agreement between the broker and the client, the duties required in handling a non-discretionary account include due diligence in evaluating an investment, the duty to execute an order promptly in accordance with the client’s instructions and best interests, the obligation to refrain from any self-dealing, and the obligation not to misrepresent any fact relating to the trade. As such, brokers are not mere “order clerks” mechanically executing buy and sell orders. Nevertheless, the broker’s services are transaction-specific and are limited to a faithful execution of the client’s instructions, rather than offering risk assessments, such as the dangers of the lack of diversification or over-concentration in volatile securities. In many instances, account agreements make it explicitly clear that the customer is responsible for his own investments.",
+ "I.",
+ "What happens, however, if the broker abstains from following his client’s instructions to purchase an investment and the product subsequently declines in market value? Is the broker liable to reimburse his client for the ensuing loss of anticipated profits?",
+ "Halakha provides that a broker, similar to an agent, should execute an agreement with his client either through oral communication or in writing. As Shulhan Arukh rules, “If one instructs his agent ‘proceed and sell land or chattel for me,’ or ‘acquire for me,’ the agent sells and buys and executes his mission … and one who appoints an agent does not require a kinyan or witnesses.”",
+ "Or as R. Shmuel de Medina observes, “Authorizing an agency via writing is more effective than orally creating one.” An agency agreement in writing provides the terms of the agent’s mandate (and by extension, a broker’s performance), as well as the consequences of his failure to perform. In short, the broker has actual authority to engage in trading on behalf of his customer. This agreement serves as the broker’s mandate to serve the best interests of his client and defines the parameters of his mandate.",
+ "Nevertheless, should a broker abstain from executing a transaction, is he liable for any ensuing loss of anticipated profits? The halakhic stance regarding this matter has been recently summarized by Dr. Michael Wygoda, Senior Director of Jewish Law at the Ministry of Justice in Yerushalayim, Israel:",
+ "The principal … has no legal claim, but merely a grievance, against an agent who fails to carry out his mandate … however, if the principal sustains a loss because of the agent’s action, he is, in some cases, entitled to claim damages from the agent, and need not make do with expressing a grievance …",
+ "Some early authorities hold that, in principle, the preclusion of profits is indeed not grounds for indemnification … Other early authorities, however, maintain that … in principle, prevention of profit does provide grounds for a claim, provided the anticipated profit was certain …",
+ "Numerous authorities ascribed to the latter approach and argue that in cases in which the profit is speculative or dependent upon the actions of a third party, there is no recovery for lost profits. Consequently, given our situation, the value of securities is subject to market fluctuation; hence, a broker who fails to execute his mandate to buy or sell a product is exempt from liability for any lost profits.",
+ "The above conclusion is corroborated by the dominant interpretation of the following Talmudic passage:",
+ "If someone gives money to his friend to go and purchase wine for him during the season while the price was low, but he was negligent and failed to buy it, the law is that he has to pay him with wine according to the low price.",
+ "Here, a promise was made, the promisee relied upon the promisor to purchase wine, and the promisee suffered monetary loss. Talmud concludes that the promisor is liable to compensate for the harm incurred. Many opine that the compensation resulting from the promisee’s reliance is due to the fact that the promisor explicitly agreed at the time the agreement was made to reimburse the promisee for the loss resulting from failure to finalize the wine purchase. Analogously, a written agreement between a broker and his client mandating liability for failure to execute a transaction would be valid. On the other hand, in the absence of such an agreement, any harm suffered from relying upon the promise would be unrecoverable. To state it differently, even though the broker may not have been able to foresee the ensuing loss due to his failure to comply with his client’s instructions, nevertheless by virtue of the fact that a broker is viewed as a shomer, he is responsible for unforeseeable damages. What happens, however, in a situation in which the broker receives instructions to sell an investment product such as a stock or bond, the broker fails to carry out his client’s instructions, and the customer sustains losses due to the broker’s inaction? At first glance, absent any agreement that states otherwise, given that the damage was only indirect (grama), and the ruling that “one who causes indirect damage is exempt from liability” (“grama be-nezikin patur”), the broker cannot be considered legally liable for his client’s losses. This conclusion flows from those Poskim who view a broker through the lens of “adam ha-mazik.” As we will demonstrate, however, the broker, as an agent, may nevertheless be deemed halakhically-legally liable by virtue of his status as a shomer sakhar, i.e., bailee who is paid a commission, who is liable for negligence including grama, loss, and theft, and is entrusted with managing the purchase/sale of stocks, bonds, annuities, or mutual funds, which are objects of shemira, i.e., bailment, and therefore subject to hilkhot shemira. Given that the client instructed the broker to execute certain transactions, in exchange for which the broker would receive compensation, the broker is considered a shomer sakhar.",
+ "Implicit in our presentation is that Halakha recognizes commercial relationships that primarily entail the accumulation of wealth and are governed by the halakhot of entrustment of assets, i.e., bailment, to the broker. For example, the Talmud discusses a partnership arrangement called an “iska.” This arrangement is defined as “palga milveh u-palga pikadon,” half loan and half bailment. The investing partner invests the funds that are required for the business enterprise and plays no role in managing the business, while the managing partner uses the investor’s capital to operate the business. Unless stipulated otherwise, all profits and losses are to be divided equally between the two partners. The investing partner receives the profits from the half designated as a loan and the managing partner receives his profits from the half labeled as a bailment. In effect, the managing partner receives remuneration for his time and effort in managing the bailment. The iska arrangement is an example in which an individual is managing somebody else’s money while being entrusted as a bailee to protect those assets.",
+ "In viewing an agent as a bailee who is entrusted with assets within a commercial setting, it is unsurprising to find the following responsum penned by R. Yosef Trani, which addresses our issue of liability for damages incurred by indirect causation. R. Trani deals with an agent who was remunerated and authorized to sell merchandise given to him by the principal, but failed to finalize the sale. Is he liable for its depreciated value? Though in terms of hilkhot nezikin, we are dealing with a case of grama, and we would expect the agent to be exempt from liability. Nevertheless, R. Trani concludes that the agent is liable for damages caused indirectly. In effect, the halakhot of shelihut and shomerim trump hilkhot nezikin. R. Trani’s position is endorsed by others.",
+ "Seemingly, we may analogize to our case of the broker who fails to fulfill his customer’s mandate. Just as in R. Trani’s case, in which the businessman is liable for failure to sell the merchandise, a broker who fails to act should be liable for any subsequent damages. Implicit in both instances is that an agent who serves equally as a bailee is responsible for the depreciation of the value of the bailment entrusted to him.",
+ "Does a shomer’s duty of care (and by extension, a shaliah’s duty) extend to protecting the market value of an asset in his safekeeping, or is it limited to ensuring the physical state of the bailment? The resolution of this issue emerges from a question regarding the prohibition of benefiting from hametz that was in the possession of a Jew over Pesach (hametz she-avar alav ha-Pesach). If a Jew deposits hametz with a fellow Jew on the eve of Pesach and the Jewish bailee neglects to sell the hametz to a gentile before the onset of Pesach, will the owner of the hametz be forbidden to derive benefit from it after Pesach? Is a shomer obligated to prevent the loss of the value of the hametz? Most decisors argue that a shomer’s responsibility is limited to ensuring the preservation of the physical state of the bailment, namely the actual hametz, no different than the Talmudic conclusion regarding the shomer’s duty to prevent the spoilage of fruit.",
+ "Nevertheless, in situations of potential devaluation of currency or depreciation of documentation such as a lottery ticket, most authorities argue that a shomer is obligated to redeem this currency, lest the owner of the assets incur financial loss. For example, in case of an agent’s neglect to extend the expiration date of a lottery ticket, R. Ya’akov Emden rules that he should indemnify the principal for the market value of the ticket prior to its expiration date. Without having to render an independent authoritative opinion of our own regarding this issue, pursuant to majority rule we may conclude that in cases of imminent document or currency depreciation, a shomer must engage in safekeeping and save the value of his client’s assets.",
+ "Similarly, one may argue that a shomer who is aware of a potential loss in the market value of an investment and fails to sell the investment is liable for the loss. On the other hand, given that a nondiscretionary account is transaction-specific, once the transaction is executed, absent any agreement to the contrary, the broker has discharged his mandate and therefore hilkhot shelihut and shemira no longer govern his relationship with the client. Should the investment depreciate, the broker is no longer under any halakhically enforceable obligation to avert any of the client’s losses. In other words, such a claim for losses incurred generates no monetary redress and therefore will not be addressed by a beit din.",
+ "However, should the broker become aware at some juncture that his former client’s investments are depreciating; he is obligated to sell his former client’s assets. There is a duty based upon the biblical exhortation relating to the restoration of lost property, “And you shall return it to your brother,” which directs one to save a fellow Jew’s assets in a situation that there is an clear impending loss. After the transaction is executed and the broker has discharged his duties as memorialized in the agreement, should the broker become aware that his former client’s investment has declined in value, he may sell it with the former client’s consent, and it is understood that he can charge the client for professional services rendered. Though generally one should restore property free of charge, nevertheless the finder should not incur a financial loss, or even a loss of profit, and therefore he should justifiably be reimbursed for his services rendered. As noted by Rema, Ketzot ha-Hoshen, and Netivot ha-Mishpat, recovery of a lost object is grounded in the concept of zekhiya, which tells us that “a benefit may be conferred upon a person in his absence, but a burden may not be imposed on anyone unless he is present.” In other words, should the conduct be construed in the eyes of the owner as a hov, i.e., a detriment, an individual must abstain from saving the asset. Consequently, in the absence of an agreement to the contrary, the client may feel that his former broker’s involvement would be detrimental to his interests, and therefore the broker should abstain from saving his client’s assets.",
+ "To avoid any potential problems, such as the client’s reluctance to have his broker execute another transaction or the possibility that another broker will be hired to manage the customer’s account, which would construed as a “hov” to the customer, the provisions of the first broker’s agreement ought to address both the parameters of their business relationship prior to the broker’s finalization of the transaction, as well as his responsibilities after its consummation (including his professional fees for services rendered). In the absence of a written agreement, the broker should notify his former client regarding the depreciation and ask him whether he should sell the financial product.",
+ "Our conclusion regarding a broker’s ongoing responsibility after a customer’s order has been executed stands in bold contrast to the position of American law, which limits a broker’s duty to the narrow task of warning his client of the risks of certain investments and then consummating the transaction requested, rather than obligating the broker to continue monitoring the account and informing his client should his assets begin to depreciate.",
+ "However, we need to point out that the broker’s duty to inform his client of asset depreciation is a halakhic-moral obligation and therefore cannot be enforced in a beit din. Absent a written agreement to the contrary and given the pragmatic considerations of the broker’s unawareness of the client’s wishes and present management of the portfolio, should the broker refrain from “saving” the value of his client’s assets, he is not liable for any ensuing loss. In the words of R. Ephraim Navon, “we have not found that he is obligated to pay for recovery of a lost object.”",
+ "In short, on the one hand, pursuant to Halakha, similar to American judicial opinion, a broker must warn an owner of a nondiscretionary account about the dangers of risky investment choices. On the other hand, unlike American law, with its tradition of rugged individualism, which inexorably serves as the ideological backdrop for a broker’s circumscribed duties vis-à-vis his client, Halakha instructs us that it is incumbent upon a broker to intervene on behalf of his former client by warning him of an impending loss from a recent trade.",
+ "In sum, if a broker is servicing a nondiscretionary account in a case of anticipated profits, there are no grounds for indemnification. On the other hand, should he fail to execute a client’s instructions to sell an investment, and the client suffers losses, he is liable. However, once a broker’s duties have been discharged and the mandated transaction has been executed, unless the agreement provides otherwise, any subsequent losses due to market fluctuations are beyond the broker’s halakhic responsibility.",
+ "What happens, however, if a client directs a broker to execute a transaction, but a few minutes prior to finalizing the buy or sell, circumstances have changed and the broker realizes that executing such a transaction would result in losses to the client? Unable to contact his client regarding the impending loss, does the broker comply with his mandate and finalize the transaction, causing losses to his customer, or does he refrain from fulfilling his mandate in order to protect his client’s interests?",
+ "Not only are the parties bound by the express terms of the agreement, an agreement that memorializes the broker’s actual express authority, but certain duties as a shaliach are also implied. Actual implied authority emerges within two contexts. Firstly, the broker must perform the client’s mandate. Nevertheless, the broker must also do what is necessary to achieve the principal’s objectives, even if it is not memorialized in their agreement. Additionally, the agent may not have been explicitly mandated to take a particular action, but if he can infer that he is authorized to do so based upon the principal’s goals, then he is authorized to execute such conduct.",
+ "The Talmud argues that an agency relationship is premised upon the fact that an agent “shall act for the benefit of the principal rather than his detriment.” As such, Shulhan Arukh concludes, “Every principal who appoints an agent implicitly articulates that any detriment resulting from the agent’s performance negates his agency.” Consequently, if the principal can demonstrate that the agent’s actions undermine his mandate, the agency relationship is null and void.",
+ "The above halakhot of implied agency will apply equally to a broker’s discretionary account and non-discretionary account. Should circumstances arise that were not contemplated when the agreement was negotiated, would the agent be responsible? R. Shmuel Kalai addresses a question regarding a principal who authorized an agent to deliver goods to a particular individual. Upon investigation, the agent discovered that the third party was impoverished and would therefore be unable to pay for the goods. Despite this clear warning signal, the agent delivered the goods to the third party. As anticipated, payment was not forthcoming. R. Kalai rules that the agent had deviated from his mandate by undermining his implied authority to serve the principal’s best interests, and he was therefore liable.",
+ "Addressing a similar scenario, R. Shmuel de Medina argues that by dint of the agent being a shomer, the significance of this warning sign should have propelled the agent to refrain from executing the transaction. As a shomer, he is obligated to safeguard these goods rather than cause damage to his principal.",
+ "In our scenario, if the parties did not contemplate changed circumstances when the agreement was negotiated, and the execution of a transaction would incur losses for the client, it is incumbent upon the broker to refrain from finalizing the transaction. For example, if Moody downgrades a firm’s debt to “junk bond” status and this rating is announced prior to the opening of the futures market, it would be incumbent upon a broker to contact his customer to decide how to proceed.",
+ "II.",
+ "In the absence of any written agreement between the broker and the client, how does Halakha address discretionary accounts for which the broker fails to execute a transaction he was instructed to make and the value of the product subsequently declines? Is the broker liable to reimburse his client for the ensuing loss of anticipated profits?",
+ "In contrast to the management of a nondiscretionary account, a broker handling a discretionary account determines whether to buy or sell without any instructions from the client. To execute transactions wisely, the broker must be duly informed of market fluctuations that affect his client’s interests, protect his client’s objectives, and provide ongoing advice regarding the risks entailed in purchasing or selling an investment. In effect, the broker manages the account and is granted power of attorney to engage in securities transactions for the client without his prior approval. Whereas in a nondiscretionary account a broker’s duties are circumscribed on a transaction-by-transaction basis, in a discretionary account, there is an ongoing relationship between the broker and his client wherein the broker is authorized to execute numerous transactions without prior approval. Ongoing due diligence requires that the broker be cognizant of whether a precipitous decline in a security is due to the financial integrity of the company, or, in Prof. Aaron Levine’s words, “the halo effect” of the financial markets. The broker’s understanding of the situation will determine whether he sells or refrains from selling the product. Furthermore, the broker must keep in mind the investor’s goals, i.e., whether his needs are long term or short term. For example, if his client is relatively young and everything else is equal, a broker may decide that his client’s retirement portfolio should consist of volatile securities. On the other hand, once this client reaches old age, the broker’s responsibility may be to transfer his portfolio to more conservative securities.",
+ "In short, similar to our conclusions regarding a nondiscretionary account, in a case of anticipated profits relating to an investment executed by a broker managing a discretionary account, there are no grounds for indemnification. However, should the broker fail to execute a client’s instructions to sell an investment and the client suffers losses, he would be liable. Finally, in a discretionary account, the execution of a transaction is not a sign of the discharge of the broker’s mandate. After the execution of a transaction, the broker has an ongoing duty to provide clients with investment advice and provide risk assessment of their securities. Consequently, should there be red flags that indicate a potential depreciation of an investment, the broker is obligated to prevent any potential losses.",
+ "III.",
+ "Absent any agreement that provides otherwise, what happens if the investment manager (hereafter: manager) of a nondiscretionary account or discretionary account chooses to appoint another manager to manage the account? Does Halakha recognize the institution of an agent appointing a sub-agent and what are the manager’s responsibilities in this case?",
+ "In the absence of a written authorization from the principal, can an agent appoint a sub-agent? Articulating the position of normative Halakha regarding this matter, a contemporary writer states,",
+ "The agent may appoint a second agent [a sub-agent] to do the assigned task for the principal and the second agent may appoint another sub-agent, and so forth … All this may be done without authority of the principal unless he expressly forbids such further appointments, or unless the acts to be done by the agent are so sophisticated or entail a high degree of trust.",
+ "In short, the sub-agent’s authority flows from the authority of the agent, rather than that of the principal. In effect, the agent is appointing an agent for the principal.",
+ "Rivash rules that, “throughout the entire Torah, an agent may appoint another agent in cases where there is no insistence on personally appointing one.” Should the agent unilaterally appoint a sub-agent, according to some authorities such an appointment would be valid ex post facto. As Rambam opines,",
+ "If a husband gave a bill of divorce to his agent and said to him, “only you should deliver it to her,” he should not send it with another, but if he gave it to another agent … then she is divorced.",
+ "Clearly, our broker-client relationship provides another illustrative example of a principal’s potential insistence on being selective regarding his agent of choice. Professionals, such as investment managers and brokers, regardless of whether they are managing discretionary accounts or nondiscretionary accounts, have a special relationship of confidence and trust with their clients by virtue of their training and expertise. Elsewhere we discussed how various indicia, such as a broker’s expertise, words of persuasion, and receipt of a professional fee, serve to engender a relationship of trust and reliance between the parties which gives rise to a broker’s duty of care. As such, given the vulnerability, dependency, and substantial disparity in knowledge that may exist between the broker and client, we may assume that the client will insist on personal service and would be reluctant to have his account managed by another broker. Consequently, should an unauthorized transfer be made to another broker or manager, the client may justifiably exclaim, “I do not want my bailment to be in the possession of another!”",
+ "Nonetheless, Talmud instructs us:",
+ "What does [the Mishnah] mean when it states, “He gave it over to a shepherd”? It means he transferred it to an apprentice because it is customary for a shepherd to give over his charges to his apprentice to watch.",
+ "In other words, the animal owner knew that the shepherd would not guard his animal personally and would entrust it to the safekeeping of another; therefore, the first shomer is exempt from any liability resulting from negligent conduct of the second bailee. In other words, everything depends upon the customary practice of the shepherd and the animal owner’s awareness of that practice.",
+ "The authorities extend this Talmudic rule to encompass situations in which it is customary for a salesman who holds merchandise to entrust it to another for safekeeping, or for a craftsman who is authorized to repair an item to give it to his worker to perform the work. There is a presumption that the customer is well aware that his asset will be in the hands of another, and therefore we may assume that the client consents to the appointment of the new shomer. Analogously, in our case, though the client developed a sense of trust and confidence with his manager, and one would expect that the client would insist in benefiting from the broker’s personal service, nevertheless, if the client is aware that the manager usually delegates his responsibilities to others, we assume that the client implicitly agreed to the appointment of the second broker, absent any explicit protest from the customer.",
+ "Given that we can infer from the circumstances that the client consents to the appointment of a sub-manager, what are the respective responsibilities of the first manager and the sub-manager? As we explained, the responsibility of a broker or investment manager who sells partnership interests in his own fund is defined both by hilkhot shemira and hilkhot shelihut. As such, we are dealing with a situation of shomer she-masar le-shomer, i.e., one bailee who transfers the bailment to another bailee. In our particular case, we are dealing with a shomer sakhar who asks a second person to become a shomer sakhar. Consequently, in the absence of any agreement regarding this transfer, each shomer is liable for negligence, loss, and theft. In such a situation, the principal has the option to seek redress from either manger who is the bailor. Therefore, should the sub-manager be incapable of paying, the original manager remains liable.",
+ "However, in our scenario, in which there exists tacit agreement regarding the transfer of the account management to a second manager, should negligence, loss, or theft of assets transpire under the watch of the second manager, who may the customer proceed against for redress? Numerous Aharonim understand Rambam’s posture as arguing that the sub-agent is in actuality the agent of the principal. Therefore, the first agent disappears from the picture and assumes no responsibility vis-à-vis the entrusted asset. Others have interpreted Rambam’s view (hereafter: the second approach) as claiming that the first agent is exempt from any responsibility provided that he could not foresee that the entrusted asset would have been lost, stolen, or negligently handled. However, if the agent knew of the negligent conduct of the sub-agent and still decided to refrain from intervening, the first agent is still responsible. For example, if a shomer asks another person who customarily serves as a shomer for the first shomer, and the second shomer misappropriates the object of the shemirah in the first agent’s presence, i.e., shelihut yad, the first agent is to be held responsible.",
+ "A similar ruling endorsing the second approach was handed down in another case. Yitzhak, the salesman of Avraham, was entrusted to sell one of Avraham’s assets, and Yitzhak sold it to Ya’akov. Prior to purchasing the merchandise, Ya’akov invited Yitzhak and his assistant to dine at his home. While Ya’akov was hosting Yitzhak, the assistant was guarding the merchandise in another room. After some time elapsed, the assistant left the room and dined with the others. Exploiting the absence of the assistant from the other room, Ya’akov took the merchandise and fled without paying for it. Clearly, the theft of the merchandise was due to the combined acts of negligence of Yitzhak and his assistant. On one hand, the assistant’s departure from the room in which the merchandise was being stored was an act of negligence. On the other hand, Yitzhak was negligent by failing to protest when his assistant walked into the dining room without the goods. As such, the bailor, the owner of the asset, may opt to seek redress from either Yitzhak or the assistant, and, should the assistant be impoverished, Yitzhak is solely responsible.",
+ "A third approach, subscribed to by Rabbeinu Tam and Rosh, and endorsed by various Aharonim, is that in the event of negligent behavior perpetrated by the sub-agent, the principal may proceed directly against the sub-agent. The rationale is that the principal never wanted the sub-agent to be the sole individual responsible for the assets. Had this been the case, the principal would have hired the sub-agent. Or, one may argue that in actuality, the sub-agent was holding the assets for safekeeping for the benefit of the agent rather than the owner of the assets, and therefore the agent continued to remain in the picture such that if negligence ensued, he could be liable. Regardless of which rationale serves to explain the aforementioned position, given that the sub-agent acted negligently, he will be liable. Should he be impoverished, the principal may seek redress from the agent.",
+ "All of the above three approaches are predicated upon the fact that the responsibility of the agent was defined by hilkhot shelihut and shemira. Moreover, should we be dealing with an agent who is equally a partner with the third party by dint of having the status of a shomer, the parameters of his responsibility will be the same as that of any agent.",
+ "Similarly, in our situation, assuming that the appointment of a second broker was approved by the client, if subsequent evidence indicates that the first broker failed to avert the loss or dissipation of assets due to the negligent behavior of the second broker, the assignment of liability would be subject to debate. According to the first approach, the second broker alone would still be liable. However, pursuant to the two other views, the initial broker would be responsible. Should the second broker be incapable of paying for the loss, the first broker would indemnify the client. However, should an agreement between the parties provide that the initial broker must monitor the results of the second broker’s servicing of the account, if the second broker is incapable of paying for any incurred losses due to his negligence, the first broker would remain liable.",
+ "However, how does Halakha address the case of an investment manager who owns partnership interests in a fund, sells some partnership interests to investors, and, pursuant to his agreement with the investors, directs a second manager to invest these assets in other financial securities? Clearly, the investment manager assumes the responsibilities of a shomer; therefore, the investment manager, similar to the initial broker in the aforementioned case, will be liable for any negligence committed by the second manager, should he be unable to pay.",
+ "What is the definition of negligence in the above case? Regarding entrusted assets, Rema states, “the assets are to be placed in a guarded place, which is a function of the locale and the times.” In other words, the duty of care required of the shomer is dependent upon the prevailing standards of the community for safekeeping such assets. The assumption of the mafkid is that the shomer will guard the entrusted asset according to communal standards. Moreover, the shomer may treat the object entrusted to him in the same fashion he treats the same object in his own possession, a standard that is higher than the communal standard. However, should the shomer’s standard fail to measure up to minimally the communal standard, he will be liable for any negligence.",
+ "Similarly, in our scenario, a manager or broker is obligated to comply with the standards adopted by the capital markets in servicing investment portfolios. Moreover, should industry standards dictate that a manager who earns a higher fee than a discount broker monitor his client’s portfolio while being managed by a second manager, failure to exercise such due diligence in the wake of a customer’s investment depreciation will result in the first manager being held liable.",
+ "A broker or manager may opt to protect his client’s assets in the same fashion he treats his own portfolio. However, should his performance be significantly below the prevailing standard, he would be liable for any loss. Moreover, if a second manager is managing assets under the assumption that the client acquiesces to his appointment, then according to the second and third approaches we outlined above, the initial manager’s scope of responsibility to avert the negligence of the second manager would be equally defined by industry standards. For example, if the investment community adopted certain standards relating to the overseeing of a second manager’s accounts, then should the first manager turn a blind eye to red flags indicating a depreciation or dissipation of the client’s assets by the second manager, he would be liable if the second broker is unable to repay the client. Adopting the first approach, on the other hand, would exempt the first manager from liability based on hilkhot shelihut. However, should the initial manager have a partnership interest with his former clients, he would remain liable for failing to respond to warning signs of a depreciation or dissipation of their assets.",
+ "Should the agreement explicitly provide for someone to serve as a sub-manager, the first manager would disappear from the picture, and the second manager alone would be liable for any negligence. The client’s consent to the appointment of the second manager indicates that he considers him trustworthy. However, should the agreement between the parties provide that the initial manager continue to monitor the second one’s asset management, here again the scope of the oversight will be determined by market standards.",
+ "In the last ten years, the financial markets have undergone a boom and bust cycle that has generated a record number of clients’ claims filed at securities arbitration forums, such as the National Association of Securities Dealers, Inc. The securities industry has continued to market new financial investment products, and customers have increasingly become susceptible to deceptive promises that offer freedom from financial woes. As members of our Jewish covenant-faith community, it behooves us to address our disputes regarding such matters in a beit din, a binding arbitration panel that may resolve such issues according to Halakha and/or civil law."
+ ],
+ "Chapter 2; The Propriety of a Civil Will": [
+ "The Propriety of a Civil Will
During the last twenty-five years, approximately a dozen different formulations of halakhic wills have been disseminated in our community, each new proposal formulated to address problems with the others; nonetheless, to this very day, many segments of our community continue to utilize a civil will as the vehicle for their estate planning.",
+ "As we know, in accordance with secular law and the wishes of a testator, an attorney will draft a last will and testament that will distribute assets to a surviving spouse, son(s), and daughter(s) upon demise of the testator. Given the continued use of a secular will in our community, the purpose of this essay is to examine how halakhic authorities deal with such wills. At the conclusion of our presentation, we raise the practical significance of our limud (study) for our community.",
+ "1. The Torah’s Order of Hereditary Succession, the Issur of “Avurei Ahsanta” and “There is No Kinyan after Death”",
+ "Inheritance occurs by itself. Upon a person’s demise, human ownership ceases and halakhic succession law determines who will inherit his estate. As Rabbeinu Gershom notes, the heir automatically receives his ancestor’s inheritance without anyone giving it to him. There is no transfer of assets between the testator and his heirs via the implementation of a kinyan, i.e., a symbolic act of transfer such as an exchange of money or the writing of a shtar (a halakhic-legal document). As Talmud states, and as it is restated in Shulhan Arukh, there is no shtar after death.",
+ "The signing of a shtar is an example of a kinyan that may serve as a vehicle to transfer assets, provided that the person is alive. Upon death, the person is incapable of transferring assets, or as the Poskim (rabbinical authorities) state, “there is no kinyan after death.”",
+ "In the words of the late Dayan Grunfeld of London, England,",
+ "… In Jewish law we have the rules … There is no gift after death and … There is no effective document after death … The logical consequence of this is that any money in the hands of a beneficiary of a will under the law of the land, which as far as Jewish religious law is concerned, belongs to a different person, namely, the proper heir in accordance with the Jewish law of inheritance, has to be returned to that heir.",
+ "Unlike secular law, which permits a transfer of assets upon death, according to Halakha, the moment of death preempts this possibility. The halakhic system, rather than the effectuation of a kinyan, creates the transfer of an inheritance. Pursuant to the Mishnah, upon demise of the decedent, i.e., the father, the order of succession is as follows: (1) the sons, (2) their descendants, (3) the daughters, (4) their descendants, (5) the father, (6) the brothers, (7) their descendants, (8) the sisters, (9) their descendants, (10) the grandfather, (11) the brothers of the father, (12) their descendants, (13) the sisters of the father, (14) their descendants, etc.",
+ "After presenting the halakhot of succession, the Torah concludes by stating that the order of hereditary succession is “hukat mishpat” (a statute of judgment). The description of hilkhot yerusha as a “hok” implies, among other things, that these halakhot, despite dealing with monetary matters, are immutable. Generally speaking, Halakha allows individuals to determine their own monetary relationships, provided that the arrangement complies with a proper form, i.e., kinyan, and is not violative of any prohibitions, such as theft or the interdict against taking ribbit. One of the exceptions to this rule is hilkhot yerusha. As Rambam states,",
+ "A man cannot cause his estate to descend to someone who is not potentially his heir; nor can he deprive the heir of the inheritance even though this is a money matter. For it says … “And it shall be for the children of Israel a statute of judgment” … that means, this statute cannot be altered and no stipulation can affect it.",
+ "In other words, stipulating that assets are to be distributed to a non-halakhic heir falls in the category of “matneh al ma shekatuv ba-Torah, tna’o batel,” and therefore a testator does not have the power to stipulate that a non-Torah heir should inherit him, and it is prohibited to execute such an arrangement. Moreover, according to many Poskim, the Torah heirs are entitled to the entire estate and there is an issur to transfer any portion from the Torah heirs to non-Torah heirs. For example, if a father is survived by a son and a daughter, the son, the Torah heir, will inherit his entire estate.",
+ "Moreover, should a non-Torah heir retain the assets, it would constitute stealing from the rightful heir. Consequently, a civil will that provides an estate distribution to a non-Torah heir ought to be null and void.",
+ "Barring any halakhically sanctioned arrangement that allows an estate to be distributed to non-Torah heirs, it should be of no surprise to find that many Poskim, both past and present, have invalidated a civil will due to the rule that “there is no gift after death” and because compliance with a secular will would lead to avurei ahsanta (disinheriting a Torah heir).",
+ "2. The Varying Approaches towards Validating a Civil Will",
+ "A. Rabbi Schwadron and Rabbi Feinstein’s View",
+ "In reply to the contention that transfer of an estate based upon a secular will flies in the face of the recognized rule “there is no kinyan after death,” R. Moshe Feinstein states the following:",
+ "Although we are dealing here with a gift to be made after the death of the donor, and there is no such thing as a kinyan after death, as the object no longer belongs to the donor and such a gift is therefore not valid in Jewish law, nevertheless according to the law of the land a person can legally transfer money after death or any other object that at that time no longer belongs to him or her … In essence it is clear, according to my humble opinion, that a testament of this kind, the disposition of which will certainly be put into effect by the authorities of the country, does not need a kinyan, as one could not imagine a more effective gemirat da’at than this. Hence, since a kinyan is not necessary, the legal heirs can uphold their right even against those persons who are the proper heirs by Torah law, although there is no such thing in Jewish law as a gift after the death of the donor.",
+ "There are two ingredients required in transferring ownership to another individual: effectuating a kinyan and gemirat da’at (i.e., the parties’ firm resolve to undertake this obligation). In other words, one requires a physical act, such as the execution of a shtar, and the intention of the parties to transfer the assets.",
+ "In the absence of a kinyan, can one argue that the intention of the parties suffices to transfer an asset? In reply to this question, R. Shlomo Kluger expounds:",
+ "The essence of the kinyan of the Torah is to resolve in one’s heart to transfer (an asset), as we learnt that, in consideration of the pleasure of our children marrying each other, each father undertakes certain prenuptial obligations. Therefore this proves that in an instance where we can discern that there is was a firm resolution, one does not require an act of kinyan. And in cases where we require a kinyan, it is because we do not know what he resolved in his heart, and possibly he did not resolve to transfer (an asset) … Every act of kinyan is only in order to ascertain what he resolved in his heart. However, if we know what he resolved and it is being transferred with a full heart (clear intention) we do not mandate an act.",
+ "Implicitly following in R. Kluger’s footsteps, R. Feinstein argues “that a testament of this kind, the disposition of which will certainly be put into effect by the authorities of the country, does not need a kinyan, as one could not imagine a more effective gemirat da’at than this.”",
+ "In other words, the testator’s execution of a civil will that will be recognized by the civil court corroborates for us that he firmly resolved in his heart to transfer his estate, and consequently a kinyan is not required.",
+ "Addressing a will prepared by R. Me’sag that divided up his estate amongst his sons, daughters, and grandchildren, relying upon R. Doniel Tirnai, R. Shalom Schwadron states,",
+ "The requirement of a kinyan is to attest to his will and thought, that he resolved in his heart to give with his soul. Wherever there is a presumptive umdana (sound inference/common sense) that demonstrates that he gave with his heart, a kinyan is superfluous.",
+ "To claim, in accordance with Rabbis Schwadron and Feinstein, that one can transfer an asset based on gemirat da’at without a kinyan means accepting a well-trodden mesorah that is discussed in various places in the Talmud and applied Halakha le-ma’aseh (in practice) in varying contexts by many authorities, including Israeli dayanim R. C. Shlomo Sha’anan, R. Domb, and R. Ben Shimon.",
+ "Nevertheless, many Poskim demur and contend that a ma’aseh kinyan, a physical act of transfer, is mandated. For example, Beit Yosef and Rema allow parties to execute an agreement without the prescribed kinyan assuming they use some form of kinyan. For example, both Beit Yosef and Rema will permit metaltelin (chattel) to be transferred with kinyan kesef (an exchange of money), though generally metaltelin cannot be transferred with kesef. In other words, minimally, parties must implement a recognized kinyan, even if it is not the one prescribed for the particular object. Other Poskim, among them Derisha and Shakh, take issue with this position and argue that transfer of ownership requires the prescribed kinyan for the particular matter. The consensus is that a recognized kinyan must be used.",
+ "Secondly, should a non-Jew adopt Halakha for a particular transaction and purchase with a bona fide kinyan from a Jew, such an agreement would be valid. Again it is a valid agreement because a ma’aseh kinyan was employed.",
+ "Moreover, if the recognized forms of kinyan are not effective because of a rabbinic decree, the parties cannot privately stipulate to use these kinyanim. Finally, for many Poskim, kinyan situmta (a commercial practice of transferring ownership) is based on either minhag (custom) or kinyan halifin (barter), or grounded in kinyan meshikha/hazaka (the act of pulling or possession). In other words, there is a requirement of some “objective” act or at least a mutual understanding that creates the gemirat da’at of the parties.",
+ "In short, a civil will is invalid since a ma’aseh kinyan is required to transfer an asset and there is no kinyan after death. As such, the view of Rabbis Schwadron and Feinstein is problematic.",
+ "B. Maharam of Rothenburg’s View: A Gift in Contemplation of Death",
+ "As an alternative possibility, some authorities have recognized a secular will by invoking the position of R. Meir of Rothenberg, who opines,",
+ "Even a healthy person who says “give this person this and that if I die,” this is designated “commanding because of death” and he [the heir] has acquired [the property].",
+ "In effect, despite the absence of a kinyan, the assets have been transferred with the verbal instructions of the testator provided that he mentions the day of death. Whereas a matnat shekhiv mera is a bequest communicated by a person on his deathbed, this is a gift of a healthy person prepared in contemplation of death (metzave mahamat mita). In effect, the testator’s instructions create an umdana de-mukhah (sound inference which is obvious to all) that he is resolute in giving this gift, and therefore no kinyan is required. Hence, a non-Torah heir may be a beneficiary of an estate without the gifting being a violation of halakhic order of yerusha. Though many decisors reject this approach, it may be considered within the context of the doctrine of muhzak and the kim li argument, as we shall demonstrate.",
+ "When a dispute is submitted to a beit din, the court has to determine which claimant retains certain assets. In Halakha, there is a concept whereby one of the claimants is considered the one who is in possession of the disputed item (muhzak), while the other claimant wants to “extract” this item and transfer it to himself. In case of a disputed inheritance, the beit din has to ascertain, first of all, who is the muhzak. Which of the two parties – the Torah heirs or the non-Torah heirs – should be considered “in possession” of the inheritance that the other is trying to take away? Seemingly, one could argue that, inasmuch as the Torah grants the inheritance to certain people, ipso facto they are considered as muhzakim. But, as we explained, in accordance with Maharam’s view, the gifting process is not in violation of the Torah order of succession. If so, the two heirs are on equal footing. Consequently, since there is a safek (doubt) whether we follow Maharam’s posture or not, if the non-Torah heir is muhzak, he will prevail.",
+ "The safek whether we follow Maharam’s posture or not is equally relevant with regard to invoking the claim of kim li. Pursuant to halakhic court procedure, a party in a dispute can argue as follows: “I want the court to rule in my favor, which is based on the position of Rabbi X, who affirms my claim.” Under certain prescribed conditions, we will accept his position even if Rabbi X’s view is in the minority, and the majority rule differently. Such an argument can be invoked either by a muhzak or by a beit din. Thus, if the non-Torah heir is considered the muhzak, he can request the court to uphold the secular will on the basis of a kim li argument that, “I want the court to rule in accordance with Maharam,” who validates a secular will.",
+ "Since Maharam may have issued contradictory rulings regarding the effectiveness of metzave mahamat mita, and may have changed his mind regarding its effectiveness as a vehicle to transfer an estate, Maharam’s view possibly may not serve as grounds to recognize a civil will.",
+ "C. The Validity of Minhag in Estate Planning",
+ "Another approach focuses on whether the existence of a minhag of preparing and executing wills in accordance with secular law ought to be recognized or not. To have binding force, a minhag that is unaccompanied by rabbinic or communal sanction in the form of a legislative enactment must be clear and widespread among the majority of members of the community and must have been practiced at least three times. There are some eighteenth- and nineteenth-century authorities (some despite various reservations) who have recognized the use of a civil will that employs the language of “giving” rather than “bequeathing” or “inheriting,” if this is common practice (even among gentiles) in the community wherein the testator and heirs reside. According to this view, even if the Torah heirs seize the assets from the non-Torah heirs, the assets would have to be returned to the designated heir(s). As R. Yehiel Epstein rules, in places where the government is insistent that all legal documents be drafted in accordance with civil law, we must comply with their laws. Therefore, he concludes, documents written in accordance with civil law are valid, and a fortiori if the document is in accordance with the local custom.",
+ "Alternatively, others conclude that to validate a civil will on the basis of minhag, it must be a minhag approved by Torah scholars (minhag vatikin). According to this view, since there are some Poskim who validate civil wills, distributing assets in accordance with a civil will would be halakhically justified.",
+ "Even though there are Poskim who reject the validity of a civil will based upon minhag, nevertheless neither a kim li plea by the Torah heirs nor a beit din will trump the minhag. Since we have a dispute whether minhag can justify affirming a will, we have a safek what the Halakha is. In cases in which there is doubt regarding a monetary matter, we cannot extract money from the defendant. Consequently, a defendant (in this case, the non-Torah heir) can argue that there are authorities who agree that the minhag ought to be determinative and therefore the will should be validated. Others would contend that the Torah heir, by dint of the Torah law of yerusha, is the muhzak and therefore retains the estate. As the Talmud instructs us, a Torah heir, by virtue of hilkhot yerusha, does not need to plead his right. Consequently, the halakhic doubt concerning whether minhag ought to be determinative is irrelevant. The bottom line is that the Torah heir has possession of the estate.",
+ "One suggested justification for legitimating secular wills based on minhag dates back to a teshuva penned by Rivash. The teshuva deals with a fourteenth-century Jewish community composed entirely of mumarim (apostates) residing on the island of Majorca who decided to replace Halakha with the governing civil law. Rivash ruled that their decision was to be understood as a practice adopted by the community and was therefore binding. Lest one assume that this ruling is limited to Jewish apostates, Rivash clearly states that his decision is applicable to any Jewish enclave that decides to have their matters resolved according to secular law. And, in fact, Rema and R. Aharon ben Azriel understood Rivash in such a fashion. Whereas numerous authorities have imparted validity to individuals who decide to resolve their matters in front of a beit din in accordance with secular law, Rivash extends the applicability of civil law to a case of communal adoption. Subsequently, Rivash’s position has been endorsed by Rema, and in contemporary times, has been invoked as one of the grounds for affirming a secular will in Eretz Yisrael. In fact, the validity of secular wills executed by some Israeli battei din stems not only from the acceptance of the view of Rabbis Schwadron and Feinstein that there is no need for a kinyan regarding a testamentary disposition, but also from the authority of minhag, the common practice of using a secular will, which exists both in Israel and in other parts of the world.",
+ "That said, should a Jewish community adopt the practice to arrange their estate planning according to secular law, a position that has been met with trenchant criticism, shtarot (documents) of gentiles prepared in accordance with civil law would be binding.",
+ "And as Hazon Ish notes, dina de-malkhuta dina (“the law of the kinship is the law”) determines the expectations of the parties. Hence, if the parties’ expectation is to arrange for a testamentary disposition in accordance with civil law, the provisions of the secular will would be binding. Consequently, if the testator commissioned an attorney to prepare and draft a will in accordance with civil law, he expects to have his estate distributed in accordance with such law.",
+ "Implicit in the above approach is the notion advanced by R. Doniel Tirani of nineteenth-century Italy and others that such documents will be effective as a kinyan situmta (a transfer recognized by commercial practice). To put it differently, just as authorities recognize a modern-day contract as a kinyan situmta, Halakha imparts equal validity to a civil will as another example of a kinyan situmta.",
+ "At first glance, invoking kinyan situmta in our situation poses various problems. Firstly, R. Zalman N. Goldberg contends, minhag that is reflective of civil law is not binding. Since obedience to the law entails an element of coercion, and minhag is predicated upon voluntary compliance, a minhag grounded in law is a self-contradiction and therefore unenforceable. As such, since the text of a civil will is drafted and executed according to the norms of secular law, we would deny its validity. Secondly, according to some authorities, notably Bah, one cannot transfer karka (real estate) via a kinyan situmta. And pursuant to other opinions, one cannot transfer assets that are not yet in the testator’s possession at the time the testamentary disposition was prepared and signed (davar she-lo ba la-olam). Should we subscribe to these views, a testator would be unable to earmark real estate for inheritance purposes or authorize distribution of assets that were not in his possession at the time of the drafting of the will.",
+ "Yet, there are numerous authorities who recognize a kinyan situmta based on a minhag that reflects civil law, even if it entails the transfer of real estate or assets that are not yet in existence. Generally speaking, assets cannot be transferred if they are not yet in existence at the time the disposition is prepared. Nevertheless, should the prevailing law allow a testator to transfer future assets at the time of drafting the testamentary disposition, many decisors would recognize the power of kinyan situmta to effectuate a transfer not only of current assets, but equally of future assets by dint of commercial custom. Hence, a civil will that provides for a future disbursement of real estate and/or the future acquisition of assets would be halakhically binding.",
+ "The more vexing issue, however, is that the transfer of assets in accordance with a secular will transpires after the testator’s demise, and a kinyan situmta, like other kinyanim, is effective only during the testator’s lifetime. As we noted, there is no kinyan after death. For this very reason, R. Zalman N. Goldberg and R. Judah Dick, Esq. reject the effectiveness of kinyan situmta for halakhic estate planning.",
+ "Others, such as Rabbis Eliyahu Hazan, Yehuda Mesalton, and Messas, as well as a psak attributed to R. Yosef Elyashiv, contend that if there is a minhag to execute a civil will, the distribution will be effective based on kinyan situmta without elucidating the grounds for their conclusion.",
+ "The grounds for the effectiveness of a civil will as a form of a kinyan situmta can be extrapolated from the position of Rabbeinu Yona of Gerondi, Spain and R. Yeshayahu Blau of Yerushalayim. According to this position, the transfer of the assets from the testator to the heirs is subdivided into two stages. Invoking the view that the rule of dina de-malkhuta dina (the law of the kingship is the law), secular law divests the testator of the ownership of the assets. Subsequently, based on minhag ha-soharim (commercial practice) and utilizing a kinyan situmta, the assets are transferred from the testator to the heir. The execution of a kinyan situmta is contingent upon the fact that the testator will pass away, and with his demise the beneficiary(/ies) will acquire the assets of the estate (i.e., kinyan al tenai). In actuality, the kinyan situmta is executed during the testator’s lifetime only to be implemented upon his death.",
+ "Alternatively, echoing Rabbis Schwadron and Feinstein’s rationale, Rabbi Toledano states that the customary practice demonstrates the gemirat da’at of the donor, and therefore a custom can substitute for a kinyan. This conclusion ought to equally apply, as R. Toledano claims, to matters of inheritance.",
+ "Regardless of which rationale is offered for the effectiveness of minhag relating to a civil will, this approach seemingly undermines the limited scope of the authority of minhag. As we know, the principle of minhag mevatel Halakha, that custom overrides the law, is limited to monetary matters. In other words, a custom can override an existing Halakha in monetary affairs. On the other hand, in matters of issura (prohibitions), custom cannot override Halakha. In our instance, though we are dealing with a monetary matter (inheritance), nevertheless, as we explained, hilkhot yerusha are labeled “hukat mishpat” (immutable) and as issur (prohibition) and therefore minhag should be ineffective in overriding the halakhic order of testamentary succession. And in fact, for the aforesaid reason, some authorities explicitly rule that a minhag cannot override the Torah law of succession.",
+ "Nevertheless, according to many authorities, one may distribute assets to non-Torah heirs if a significant share of the estate (fifty percent or twenty percent) is distributed to Torah heirs, or according to others, if even a nominal amount is distributed to Torah heirs. R. Shmuel Wosner of Bnei Brak, Talmud Yerushalmi, Bava Batra 8:6, and the rulings of Rishonim imply that one engages in an issur only if one transfers the entire estate to non-Torah heirs. R. Dovid Feldman of London, England argues in his treatise on yerusha that the same conclusion may be drawn from the discussion in Talmud Bavli, Bava Batra 133b. In effect, there is no commission of the issur of avurei ahsanta since a potential Torah heir receives a portion of the estate.",
+ "In other words, if there would be a minhag to divest the Torah heirs from benefiting from any portion of the inheritance, then the custom would be null and void, and would require us to redistribute all the assets to the Torah heirs. However, if a portion of the estate is distributed to the Torah heirs and the balance to non-Torah heirs, then the minhag is not tainted by any element of issura. Consequently, if there is a prevailing custom that divests a bekhor (first-born son) entirely from his double portion of inheritance, such a minhag has no validity. However, if he has been disinherited from only a portion of that share, the minhag will be determinative. Similarly, if a civil will distributes an estate exclusively to the daughter(s) without distribution to the son(s), such a will is not halakhically effective. But if a Torah heir receives at least a portion of the estate, such an arrangement is valid.",
+ "Even if the basis of the civil will is not grounded in the effectiveness of minhag, one may have to distribute a portion of the estate to the Torah heirs. In other words, if a Posek relies on the positions of Rabbis Meir of Rothenburg, Schwadron, and Feinstein to recognize a civil testamentary disposition, or if the estate has been structured based upon one of the halakhically sanctioned techniques, according to various Poskim, provisions may have to be made for distribution to the Torah heirs.",
+ "Others contend that validating a secular will based upon a secular legal system contravenes the prohibition for Jews to litigate matters in a secular court. In other words, the prohibition is not limited to litigating one’s affairs in secular courts, but extends to adopting practices that follow secular law. Others contend that affirmation of such a minhag is a violation of avurei ahsanta.",
+ "D. The Scope of Dina de-Malkhuta Dina",
+ "Under certain prescribed conditions, Halakha is willing to recognize some secular laws based upon the rule “dina de-malkhuta dina,” “the law of the kingship is the law.” Though the rule addresses a kingship governmental structure, nevertheless the rule is applicable to any polity that has been established with the consent of its citizens, has a legislative body, and enacts legislation that does not discriminate against its citizenry.",
+ "Seemingly, a civil will drafted in accordance with the governing laws of a democratic order such as the United States ought to be recognized based upon the following psak of Rema:",
+ "There are some authorities who state that the law of the kingship is the law in regard to taxes and tariffs dealing with immovable items … but other matters not. And there are others who disagree and argue that the law of the kingship is law regarding any matter that will be beneficial to the citizens of the state.",
+ "In accordance with Rema’s commentary on Tur, something beneficial for a state’s citizenry is any matter that relates to interaction between individuals, such as the execution of a testamentary disposition even if it is in variance with Halakha.",
+ "Though Shakh vigorously opposes incorporating a rule of secular law when it is contrary to Halakha, nevertheless, historically, commencing with the time of the Rishonim, the majority of Poskim endorse the position of Rema.",
+ "Although in the past most authorities subscribed to Rema’s view, in contemporary times in Eretz Yisrael and elsewhere, normative Halakha endorses the Shakh’s position. Moreover, though Rema invokes dina de-malkhuta dina regarding matters relating to the benefit of the citizenry of a particular country, nevertheless, following in the footsteps of the Shulhan Arukh, Rema opposes applying this rule as grounds for validating a civil will. Similarly, though R. Moshe Feinstein subscribes to Rema’s view regarding the scope of dina de-malkhuta dina, nevertheless, R. Feinstein explicitly rejects the notion that a civil will can be validated based upon that view.",
+ "Furthermore, since American law does not mandate that inheritance matters be resolved in accordance with civil law, there is no reason to invoke dina de-malkhuta dina as a basis for validating a secular will.",
+ "Moreover, as Tashbetz and R. Akiva Eiger note, in cases in which there is an element of issur, one cannot invoke dina de-malkhuta dina. In fact, numerous Poskim reject invoking dina de-malkhuta dina in order to validate a civil will that provides for an estate distribution to a non-Torah heir, which entails the commission of an issur. For example, in the seventeenth century, R. Moshe Benveniste mandated that a daughter return her share in the inheritance to her brother because it was lost property (hashavat aveida), and he records that all scholars of the period rejected the validity of a secular will, based upon dina de-malkhuta dina. In R. Benveniste’s words, “they struck that opinion with a hundred measures against one.” As such, at first glance, one must reject the validity of a secular will based on dina de-malkhuta dina. Subsequently, addressing a case of inheritance that occurred in 1851 in Ancona, Italy, R. Yisrael Moshe Hazan rails against those who equate the halakhic recognition of dina de-malkhuta dina in estate distribution with the halakhic validity imparted to parties who arrange their monetary affairs in variance with Halakha. R. Hazan explains,",
+ "What has the maxim of dina de-malkhuta dina to do with the Jewish law of inheritance? For the laws of inheritance are as removed from the laws ruling commercial transactions … as east is from west.",
+ "As R. Akiva Eiger notes, these civil matters are monetary in nature, while the laws of a yerusha have the element of issur. Consequently, it is unsurprising to find numerous Poskim who invalidate a civil will based upon dina de-malkhuta dina. Hence, any assets, including but not limited to yerusha awarded by a civil court, halakhically continue to belong to the Torah heir(s), and as such, a non-Torah heir who has won in court cannot enforce the award lest he be labeled a thief.",
+ "Notwithstanding what we have presented here, without impinging upon the element of issur of hilkhot yerusha, according to contemporary Poskim such as Rabbis Messas and Sha’anan, one can still invoke the rule of dina de-malkhuta dina. A last will and testament is a document that entails gifting an estate to various individuals. Though its provisions and the terminology employed by the document may not be in conformity with the halakhot of a shtar matana, a bona fide document that grants a gift, nevertheless, it is a shtar matana that is valid in the eyes of secular law. The question is whether Halakha recognizes a shtar kinyan (a vehicle to transfer an asset) such as a shtar matana that was prepared in accordance with civil law.",
+ "According to the majority of Rishonim and some Aharonim, a shtar matana drafted in accordance with secular law is valid. The majority view of Rishonim notwithstanding, Shulhan Arukh and many Aharonim relied upon the minority view of Rishonim to invalidate such a shtar matana. Rabbis Messas and Sha’anan, relying upon the majority of Rishonim and some Aharonim who validate the shtar, argue that a civil will ought to be recognized. Yet, since a shtar matana is a shtar kinyan and there is no kinyan after death, on what grounds can one legitimate such an estate distribution in accordance with a secular will?",
+ "Here again, as we mentioned previously in our presentation, the grounds for maintaining the effectiveness of a civil will as a shtar matana is based upon the position of Rabbeinu Yona and R. Blau, in which the will acts as a kinyan situmta. According to this position, the transfer of the assets from the testator to the heirs is subdivided into two stages. Invoking the view that the rule of dina de-malkhuta dina, secular law divests the testator of the ownership of the assets. The assets are subsequently transferred from the testator to the heir as a conditional transfer (kinyan al tenai) that takes effect with the testator’s demise. As we explained previously, the kinyan situmta is executed during the testator’s lifetime, only to be implemented upon his death.",
+ "In short, clearly, the need to distribute a portion of the estate to the Torah heirs is not limited to an instance of enforcing a civil will based upon minhag or dina de-malkhuta dina. As we mentioned earlier, these approaches of Rabbis Rothenburg, Schwadron, and Feinstein are predicated upon the fact that a partial distribution to a Torah heir will suffice to nullify the issue of avurei ahsanta.",
+ "Accordingly, the testator’s preparation of a civil will can be grounded in the pesakim of Maharam of Rothenburg, R. Schwadron, and R. Feinstein, and those Poskim who affirm the minhag and the validity of dina de-malkhuta dina.",
+ "In the foregoing (section 2, subsections a–d), we presented the positions of Rabbis Rothenburg, Schwadron, and Feinstein, as well as Poskim who endorse the effectiveness of minhag or dina de-malkhuta dina, which would serve as grounds for drafting a civil will as a means for distributing one’s assets to non-Torah heirs. In fact, R. H. Shlomo Sha’anan, a dayan serving on a Tel Aviv Beit Din, took into account all four approaches in order to validate a civil will. It is important to stress that all of these approaches are grounded in a particular halakhic-legal technique that allows for an estate distribution to any individual, regardless of whether the person is a Torah heir or not. In effect, the estate has been effectively transformed from a potential source of inheritance for a Torah heir into an asset that can be acquired by anyone, no different from any article for sale in the marketplace.",
+ "As we have discussed, however, others reject these techniques and affirm the Talmudic and Shulhan Arukh rule that “yerusha ein lo hefsek” (the succession of inheritance cannot be interrupted), and therefore reject all of these solutions.",
+ "E. The Parameters of “Mitzva le-Kayeim Divrei ha-Met”",
+ "As we explained, many would argue that the will is ineffective in transferring an estate either because “there is no kinyan after death,” or because one may not disinherit a Torah heir from his rightful share as dictated by the Torah view of succession. Distributing a partial share to a Torah heir will not obviate the halakhic fact that the Torah view of succession is “hukat mishpat.” According to many Poskim, any distribution of a share to a non-Torah heir entails the contravention of an issur. Hence, even be-diavad (ex post facto), one may not rely upon a secular will.",
+ "However, according to some Poskim, one can validate a secular will based upon “mitzva le-kayeim divrei ha-met,” the halakhic duty to carry out the wishes of the deceased. Among the Rishonim there are two primary approaches to understanding the conditions in which this mitzva applies. According to some decisors, should the testator state, “Give such and such to Reuven,” such a clear instruction without transferring the actual asset to a shalish (third party) is enough for there to be a “mitzva le-kayeim divrei ha-met.” Others require that the assets be deposited for purposes of eventual estate distribution (hashlasha) with a shalish. Normative Halakha mandates that the assets be deposited with a shalish for the express purpose of carrying out the testator’s wishes, and the will should preferably employ the language of matana, gifting (such as “I give”), rather than language of yerusha (such as “I bequeath”).",
+ "Based upon the foregoing, Maharit contends that a civil will does not conform to the dictates of “mitzva le-kayeim divrei ha-met”: A civil will lacks a clear directive from the testator to the Torah heirs to distribute the assets, which is a precondition for invoking “mitzva le-kayeim divrei ha-met” and does not satisfy the requirement of disclosing the provisions for distribution of the estate in the presence of the future heirs. That, coupled with the fact that an issur is committed by disinheriting a Torah heir, renders it impossible for a civil will to be affirmed. Finally, R. Hayyim Ozer Grodzenzky argues that one cannot find support for the idea that a civil will can constitute valid hashlasha (deposit) in this teshuva of Maharit since this teshuva addresses charity bequests, and his ruling therefore may not necessarily extend to private testamentary dispositions.",
+ "In one of his rulings, R. Grodzensky writes,",
+ "I have always doubted the propriety of the wills executed in civil courts since there is no shtar after death, yet a Jewish court will affirm their provisions.",
+ "As such, though his decision addressed matters of charitable bequests, clearly his ruling regarding the invocation of “mitzva le-kayeim divrei ha-met” applies equally to the conventional last will and testament. Contemporary decisors understood Rabbi Grodzensky’s psak in a similar fashion.",
+ "To buttress his aforementioned position, R. Grodzensky found precedent in a teshuva of R. Ya’akov Ettlinger dealing with a secular will. The facts posed to R. Ettlinger were the following: A healthy individual prepared a testamentary disposition in accordance with civil law, wherein upon his demise, his estate would be distributed among Torah and non-Torah heirs. Since the estate arrangement failed to comply with Halakha, the non-Torah heirs inquired of R. Ettlinger whether this civil will would be halakhically valid. Since the assets were in the hands of the beneficiaries in accordance with secular law, these individuals were muhzakim in these assets. Lest one argue that the assets must be deposited with a third party prior to invoking “mitzva le-kayeim divrei ha-met,” R. Ettlinger argued that since the testator communicated explicit instructions to transfer these assets upon his demise, this suffices to comply with the mitzva. The fact that executors were appointed to ensure that his wishes would be fulfilled, and that the will would be enforced by secular authorities, suffices to comply with the dictates of “mitzva le-kayeim divrei ha-met.”",
+ "Relying upon R. Ettlinger’s argumentation, R. Grodzensky posits,",
+ "For some time, I have inclined to the view that the beneficiary in a will executed in accordance with the law of the land is to be considered as a muhzak, since the testamentary disposition will be carried out in accordance with the law of the land, and as such we do not need the halakhic requirement of a deposit for the purpose of estate distribution. However, I have not found a source (“gilluyei”) for this Halakha.",
+ "In effect, the preparation and execution of a civil will and its subsequent enforcement by civil authorities is tantamount to depositing the assets with a third party for the express purpose of future estate distribution, i.e., hashlasha. His position has been endorsed by some Poskim.",
+ "A similar approach has been espoused by R. Shmuel Shor, who recognizes that hashlasha applies only when one gives a gift to a stranger. However, when one gives a gift to his daughter, and she is considered muhzeket according to civil law, a deposit is not required and therefore such a testamentary disposition is therefore valid.",
+ "Arguing somewhat differently from Rabbis Shor and Grodzensky, R. Henoch Padwa writes that the initiation of the executor’s action to probate the will is to be viewed as a type of hashlasha and therefore, the condition for “mitzva le-kayeim divrei ha-met” at this juncture has been fulfilled. In other words, the preparation of a testamentary disposition in accordance with secular law and its enforceability by the court are insufficient to establish hashlasha. One requires the probating of the will by the executor. On the other hand, implicit in their approach is that hashlasha suffices and there exists no requirement that the testator communicate instructions to the Torah heirs regarding the estate distribution.",
+ "The ramifications of Rabbis Grodzensky, Shor, and Padwa’s view that the preparation of a civil will and/or probating it is a form of hashlasha and therefore serves to ascertain gemirat da’at, would be applicable to all segments of our Orthodox Jewish community. Many Jews who identify and affiliate with religious institutions in our Orthodox Jewish community execute such testamentary dispositions. Although many different documents have been suggested as complying with halakhic estate planning, and there are attorneys with the expertise and experience to address the observant Jewish community’s concerns in drafting a halakhic will which will be in legal compliance, it is not unusual to find, amongst families across the Orthodox spectrum, numerous testamentary instructions which continue to be prepared in accordance with civil law. And in fact, many contested yerusha matters addressed in beit din today deal with civil wills executed by members of all segments of our community.",
+ "However, R. Yosef Elyashiv seemingly invalidates such testamentary dispositions. He argues in a written teshuva that R. Grodzensky’s view that the preparation and enforcement of a civil will is a form of hashlasha is applicable only to secular Jews who do not exhibit “a deficiency in their gemirat da’at.” To put it differently, since secular Jews do not comply with Halakha, they firmly intend to have their civil wills probated in secular court. On the other hand, an observant Jew’s allegiance is to Halakha, and should he prepare a civil will, he has no firm commitment to have the document probated civilly. The gemirat da’at of an observant Jew is to follow Halakha, and since in R. Elyashiv’s view a civil will cannot be validated for observant Jews either le-khathila or be-diavad, a testator’s gemirat da’at is recognized only if his estate planning is halakhically compliant. A similar view is espoused by Meishiv be-Halakha, a Torah publication of Machon Lehoro’ah, a beit din in Monsey, New York.",
+ "However, as noted by R. Schwartz, R. Elyashiv’s line of reasoning should apply equally to any observant Jew who files a civil divorce, trusting that his testamentary disposition will be executed in accordance with his wishes upon his demise. In fact, according to a mesorah attributed to R. Elyashiv, in situations in which people recognize one mode of estate planning, i.e., executing a civil will and preparing such a testamentary disposition, we assess (umdana) that their intentions were to transfer the estate as a gift in accordance with secular law, and we treat it as hashlasha. To state it differently, even observant Jews who have their estate wishes executed in accordance with civil law trust that their instructions will be complied with, and therefore a civil will ought to be recognized as a vehicle for hashlasha.",
+ "Nonetheless, R. Elyashiv contends based upon “mitzva le-kayeim divrei ha-met” that a peshara (compromise) should be executed by the Jewishly observant who utilize secular estate arrangements. And Meishiv be-Halakha contends that it is midat hassidut to comply with the provisions of a civil will, and invokes the possibility that confirmation of such a testamentary disposition is a fulfillment of kibbud av, a matter we will discuss later in our presentation.",
+ "Finally, regarding Maharit’s opposition to invoking “mitzva le-kayeim divrei ha-met” when a civil will is in violation of the issur of avurei ahsanta, this may be based on the view that “mitzva le-kayeim divrei ha-met” is a form of kinyan, and therefore invoking it as grounds for recognizing a non-Torah heir’s entitlement to estate assets does not mitigate the contravention of an issur. In fact, in another teshuva penned by Maharit, he seems to endorse this understanding of “mitzva le-kayeim divrei ha-met,” and we can therefore readily understand his opposition to invoking this notion in cases of disinheritance of Torah heirs.",
+ "However, most Poskim contend that “mitzva le-kayeim divrei ha-met” is not an act of kinyan. Rather, as the words denote, this concept informs us that it is a halakhic duty, a mitzva, to fulfill the wishes of the deceased. As R. Shaul Nathanson notes,",
+ "It is a matter of “kindness of truth” [hessed shel emet] that we do with the departed … and it is a duty to comply with the wishes of the deceased.",
+ "Yet, as we explained, should the testamentary disposition provide that Torah heirs, alongside non-Torah heirs, benefit from the estate distribution, the issur of “avurei ahsanta” is nonexistent and the mitzva may be fulfilled and enforceable by a beit din.",
+ "In short, though not explicitly stated, we assume that despite the recognition of a civil will by R. Grodzensky, R. Shor, and the others who recognize a civil will, they will all concur that Torah heirs must receive a distribution from the estate, lest the execution of the will entail a contravention of the issur of “avurei ahsanta.” Even if the language employed by the testator is “to bequeath” or “to inherit” rather than “to give” his assets, such language will not invalidate the civil will that reflects the deceased’s wishes.",
+ "F. The Parameters of Kibbud Av",
+ "Finally, in the absence of affirming a civil will as a means to perform the “mitzva le-kayeim divrei ha-met,” there are Poskim who argue that compliance with a parent’s wishes is a fulfillment of the mitzva of either kibbud av, honoring one’s father, or mora av, filial",
+ "reverence. The implicit premise of this position is that a beit din can coerce a child to comply with his parent’s wishes and that a child is obligated in kibbud av after his father’s demise. Such a conclusion would apply equally to a secular will.",
+ "Others disagree for one of three reasons. Firstly, one cannot coerce a child to comply with his parent’s wishes. Some argue that kibbud av is limited to personal service of a parent, whereas incurring a financial loss does not fall within the ambit of the mitzva. Consequently, since foregoing one’s share in an estate entails an expense to the child without reimbursement by the parent, the mitzva of kibbud av is inapplicable. Finally, some argue that since there is no obligation to honor and/or respect a parent after his demise, the child is exempt from complying with the parent’s testamentary wishes, which will be actualized after his death.",
+ "We should be mindful of the words of a well-respected twentieth-century halakhic arbiter. After stressing the importance of complying with the order of succession prescribed in the Torah, R. Tucashinsky concludes with the following:",
+ "And if he erred and wrote to his daughter or wife in a language that is ineffective for estate transfer, it is desirable that the sons agree to distribute the estate equally with their sister and mother, and it is a mitzva to fulfill the words of the father … and also to avoid friction and controversy.",
+ "The pesika of R. Tucashinsky, which was forged in the crucible of his learning experience and investigation of the halakhic sources, led to him to conclude that various halakhic techniques for drafting a will were the order of the day. And in his writings he suggested various texts of halakhically sanctioned tzavaot. Nevertheless, he concludes his presentation with the point that our Torah is described as “ways of pleasantness and all her paths are peace.”",
+ "Though R. Tucashinsky was hard pressed to find grounds to validate a secular will, nonetheless, he clearly experienced personal anguish regarding disrespecting a father and his personal wishes and the potential family strife and instability which ensued by a son who contests a civil will. He therefore directed the son(s) to agree and accept the estate distribution to the non-Torah heirs based upon mitzva le-kayeim divrei ha-met, kibbud av, and fostering shalom.",
+ "A similar approach, albeit much more subtle in form, resonates in the writings of R. Mattisyahu Schwartz. After his exhaustive treatment of over four hundred pages in volume 1 of Mishpat ha-Tzava’ah arguing for the paramount importance of drafting a halakhic will, examining the advantages and disadvantages of the various techniques proposed for drafting a will, and his fifty-five-page review of all the differing views of whether kibbud av is applicable in volume 2, R. Schwartz summarizes his conclusion by stating,",
+ "In volume 1 of Mishpat ha-Tzava’ah we had a lengthy presentation in explaining why the Poskim argue that one must affirm a civil will due to honor of a father [and we discussed the views that rejected kibbud av].",
+ "In other words, his aforesaid summary indicates that R. Schwartz is subscribing to the view that ex post facto one should affirm the will based upon kibbud av. A halakhic will is the prescribed method for estate planning, however R. Schwartz affirms a civil will based on kibbud av. In fact, R. Schwartz argues that even Poskim who hold that children are exempt from kibbud av in complying with estate directives agree that if the children fulfill their parent’s wishes, they do fulfill the mitzva.",
+ "His position manifests itself when dealing with the following scenario: A father’s will mandates that portions of his estate be distributed to non-Torah heirs, but upon his demise, his wife demands that the estate be distributed to other non-Torah heirs. Applying rulings emerging from different cases, R. Schwartz finds three approaches to parental precedence and filial responsibility. In a case in which two parents disagreed about the propriety of a match for their child, R. Yehzekel Landau concludes that if only the mother is alive, kibbud em trumps kibbud av. In a case in which there is a conflict between the deceased mother’s will and the instructions of a living father, and the father’s instructions involve financial loss, R. Akiva Eiger contends that the son can choose whose instructions to follow. Should a father oppose his son’s recitation of Kaddish for his deceased mother, some Poskim argue that in such a situation kibbud av and kibbud em are on equal standing and that the avel (mourner) can therefore choose whose instructions he wants to follow. In other words, drawing from cases dealing with a prospective marital mate, a child incurring a financial loss through kibbud av, and the Kaddish recitation for a parent despite the other parent’s protestation, R. Schwartz draws three contrasting conclusions regarding how to confront a mother’s desire to modify her husband’s estate disposition and divide the estate among other non-Torah heirs. To state it differently, there is no discussion whatsoever about tearing up the will and giving all the assets to the Torah heirs. The question is simply whose kavod will be the determining factor in the estate distribution. And therefore, there are no grounds to distribute the entire yerusha to the Torah heir.",
+ "In conclusion, numerous decisors invalidate a civil will either because there is no kinyan after death and/or because affirming the will entails the violation of “avurei ahsanta.” Should the assets earmarked in a civil will be distributed to non-Torah heirs, many battei din will redistribute the lion’s share of the estate to the Torah heir(s) in accordance with the order of Torah succession. Other battei din will rely upon the views expressed in our presentation that would validate a civil will.",
+ "Should a beit din choose to invalidate the estate distribution in the will, a nominal distribution will be given to the daughter(s). Since legally, the daughter must sign off in order for the son to inherit his share of the estate, the daughter can rely on Poskim who do not obligate a daughter to sign off the estate distribution, and she therefore has a right to receive a portion of the estate.",
+ "In exchange for her signature, there is a minhag to give her either at least ten percent of the value of the estate, or an amount determined by a beit din panel. In effect, offering assets to a daughter is a peshara, a compromise. Generally speaking, in an instance of issur, one cannot implement a peshara; nevertheless, the issur here may be inoperative. As we earlier noted, though the entire estate belongs to the Torah heirs and consequently, according to certain decisors, a partial distribution to a daughter entails a violation of “avurei ahsanta,” some Poskim permit distribution to a non-Torah heir. Implicit in their allowance of distribution to a daughter is their endorsement of the position that distribution to a non-Torah heir is permissible if he shares in the estate distribution. Alternatively, since secular law mandates a daughter’s signature for the son to receive his estate distribution, Halakha allows her to sign off. Consequently, in the absence of an issur, a peshara may be implemented. Finally, to avoid a daughter proceeding to litigate her claim in civil court, which entails the commission of an issur, we allow a peshara to be executed.",
+ "Others, such as Rabbis Maharam of Rothenberg, Schwadron, and Feinstein, sanction the use of a civil will either based upon the gemirat da’at of the testator, “commanding because of death,” dina de-malkhuta dina, or minhag. Regardless of the grounds for validating a secular will, it may be effective in transferring assets to a non-Torah heir only if there is a partial distribution to a Torah heir.",
+ "On the other hand, some Poskim validate a secular will based upon “mitzva le-kayeim divrei ha-met” or kibbud av. Here again, to avoid the issur of “avurei ahsanta,” such recognition may require that the Torah heir receive a partial distribution of the estate. Others, as we have shown, oppose both approaches.",
+ "Deciding between competing arguments regarding the propriety of a civil will is the sole prerogative of the Posek and beit din. The relative strength and plausibility of each argument will continue to be scrutinized within the framework of future pesakim and piskei din.",
+ "Conclusion",
+ "Since the halakhic propriety of a civil testamentary disposition is subject to debate, it behooves our community to seriously consider that a Torah heir may decide (based upon either his own halakhic convictions, desire for material aggrandizement, hatred of his siblings who are non-Torah heirs, or at the behest of his spouse’s inveighing) to challenge in beit din his father’s civil will that distributes portions of the estate to his siblings who are non-Torah heirs. Such claims have been advanced in battei din in the past and and continue to be submitted to this very day to battei din. One should never assume that fighting regarding yerusha would happen only in somebody else’s family. Since there is no halakhic consensus to affirm a civil will, there is a distinct possibility that the overwhelming majority of the assets will be redistributed and awarded to a Torah heir(s) by a beit din. Optimally, our community ought to seek halakhic and legal counsel regarding halakhic estate-planning techniques that will avoid the potential challenges to the halakhic efficacy of a civil will.",
+ "Should a civil will be contested, and settlement negotiations and mediation fail, it is advisable that a Torah heir as well as a non-Torah heir approach a rabbinic authority who has expertise in Even ha-Ezer and Hoshen Mishpat, and preferably experience in dayanut, for counsel on how to handle this matter."
+ ],
+ "Chapter 3; Harnessing the Authority of Beit Din to Deal with Cases of Domestic Violence and Child Abuse": [
+ "Harnessing the Authority of Beit Din to Deal with Cases of Domestic Violence and Child Abuse
The purpose of our presentation is to educate victims of spousal and child abuse, and the Jewish community in general, about the type of relief that can be provided by a beit din, which has the authority to resolve certain monetary issues relating to such conduct. We hope in this presentation to both demonstrate the nature of these claims and their halakhic underpinnings, so that our battei din will be open to accept such claims and also to serve as an introductory guide to dayanim and to’anim (rabbinical advocates) to deal with such claims.",
+ "1.",
+ "The first part of our presentation focuses on the right of a Jewish wife to advance various monetary claims against her abusive Jewish husband. Such a right exists equally for a husband who is a victim of abuse, however, our discussion focuses on the more frequent situation of the abusive husband.",
+ "In a hypothetical scenario, a husband and wife are at home with their Jewish maid and suddenly, without any incitement, the husband hits his wife on her hips and back in front of the maid. The husband denies the allegations and argues that the battery was self-inflicted. In reply, the wife counters by arguing that it would have been impossible for her to produce self-inflicted wounds on her back. Moreover, the maid corroborates the wife’s version of the events. Subsequently, the wife files a police report and a restraining order is issued against her husband. Based upon professional findings, it is clear that the husband is a bipolar personality and is violent.",
+ "In fact, the wife’s friends are aware of the husband’s abusive relationship with his wife. Fearful for her life, she abandons the marital home and seeks mezonot, i.e., spousal support, compensation for lodging expenses, and monetary damages for physical and emotional abuse. The couple decides to have their issues resolved in beit din. During the proceedings, health care professionals attest to the husband’s proclivity to physical and emotional abuse.",
+ "Kevod ha-beriyyot (the dignity of human beings) ought to be one of the governing halakhic norms in our social relations. Thus, a husband has a duty to respect his wife as a member of the human race. Additionally, as a husband it is incumbent upon him to respect her more than he respects himself. Whereas various halakhic guidelines have been established relating to the duty of kevod ha-beriyyot, there is a paucity of sources practically detailing how to demonstrate in positive terms one’s respect for one’s wife. Clearly, spousal respect requires intimate and individualistic answers that emerge from the singularity of persons and their relationships to each other, as well as their fused existence. It seems that Halakha has left it up to the husband to determine how to translate into practical terms respect for his spouse.",
+ "On the other hand, there are specific acts of dishonor, of demeaning a wife’s persona, such as threatening to assault her or actual battery, which entail a diminution of her honor as a person. Consequently, just as habbala (battery) involves transgressing a negative Torah commandment, similarly, spousal battery is a violation of habbala and is subject to criminal sanctions. In short, whereas Halakha has given latitude for a husband to determine how to translate his duty of spousal respect into practical behavior, nonetheless, in situations of violating her persona by means of assault, Halakha sets out guidelines for how to address such behavior.",
+ "The seriousness of the issur of battery expresses itself in a husband’s liability for injuring his wife while engaging in onah (conjugal relations).",
+ "The duty of a husband to engage in onah is mi-dioraita. Lest one argue that engagement in a mitzva exempts one from responsibility from injury caused during its performance, Halakha states otherwise. Hence, Hazon Ish contends that engagement in the mitzva of onah does not serve as a defense. Even if the husband unintentionally injured his wife due to losing self-control, i.e., ones, nevertheless, regarding any assault against another person, adam mu’ad le-olam, a person is always deemed forewarned.",
+ "Consequently, it is no surprise that numerous Poskim argue that it is the husband’s responsibility to foresee the possibility of potential injury and therefore, if injury nevertheless transpired, he is negligent. Similarly, a husband who argues that he lost self-control and therefore assaulted his wife will also be held responsible for his behavior. As Shulhan Aruch, Sma, and R. Shlomo Luria note, if a husband is liable for any injury caused to his spouse during onah, a fortiori, should he force her to have conjugal relations against her will, he has committed “habbala” and he is therefore liable in nezikin damages. A husband must control his desires and neither injure his wife nor rape her under any circumstances. Moreover, neither the establishment of marriage nor a mutual agreement between spouses to sanction a husband’s assault of his wife even for her own personal enjoyment may serve as grounds for a husband’s exemption from liability for any ensuing damage. Any agreement between two individuals to be a subject of battery is prohibited. A fortiori, he should not force himself upon his wife.",
+ "Given that a husband is responsible for the injury he causes his wife, how would a beit din assess the damages? At first glance, there are seemingly no grounds for awarding monetary damages to a victim of abuse. As we know, there are five types of payment that are to be made in case of assault: permanent injury (nezek), physiological pain (tza’ar), medical expenses (rippui), loss of earnings (shevet), and shame (boshet). Following in the footsteps of Rambam, Shulhan Arukh rules that today we can only advance a claim for medical expenses and loss of economic earnings. However, Rema disagrees and argues that the practice is that even such types of payments cannot be collected. In short, all five types of damages are not collectible today in a beit din. In the absence of the five payments, pursuant to numerous teshuvot of Geonim, Shulhan Arukh and Rema rule that the parties themselves or a third party such as a beit din ought to attempt to mediate the matter, with the goal of appeasing the victim by offering appropriate compensation for the injury inflicted upon him. Should mediation fail, according to Rambam, if a husband assaults his wife, it is incumbent upon beit din to take a portion of the husband’s assets and purchase real estate (karka) and transfer this asset to his wife. All profits from the acquisition accrue to his wife.",
+ "Should the couple be unable to settle the matter between themselves, the husband and wife may submit to a beit din to address the wife’s monetary claims relating to spousal abuse. The couple would sign an arbitration agreement (shtar borerut) accompanied by executing a kinyan (i.e., a symbolic act of undertaking this duty), which empowers the panel to halakhically and legally issue a decision. Optimally, the shtar should specifically authorize the panel to resolve claims relating to personal injury, and thus allow the beit din to issue an award of any of the aforementioned payments, should the circumstances dictate such relief. The significance of this arrangement is that although, as we pointed out, normative Halakha precludes a panel from addressing such matters, nevertheless, should the parties obligate themselves to accept a beit din’s decision regarding this matter, such a shtar is valid. In other words, the authority to issue a decision is grounded in the parties’ willingness to fulfill their respective obligations, rather than the judicial authority of a beit din to render a decision.",
+ "However, even in the absence of a provision in the shtar that allows the panel to render a decision on matters relating to personal injury, a panel may attempt to appease the victim by offering him appropriate compensation for the injury the batterer caused.",
+ "In addition, at the very least, the signing of the shtar borerut will legally empower a beit din to address this nezikin (tort) claim within the context of a divorce proceeding, which addresses all the end-of-marriage issues, or a non-divorce proceeding, which is limited to resolving this claim. However, given that Halakha does not authorize dayanim in contemporary times to award any of the five nezikin payments, on what grounds can a panel issue any potential award? Moreover, what type of nezikin awards can be rendered by a beit din today? Prior to the mid-fourth century CE, arbiters who had received semikha (rabbinic ordination) were authorized to resolve monetary matters, including the assessment of the five aforementioned payments as a form of a compensation for both injurious and non-injurious physical abuse. After the lapse of the ordination process in the fourth century CE, non-ordained arbiters lack authorization to impose these five payments.",
+ "Nevertheless, dayanim today are empowered to mete out monetary damages based upon beit din makkin ve-oneshin she-lo min ha-din, (a court may render punishment not prescribed by the Torah), le-migdar milta (for protective measures) and ha-sha’a tzerikha le-kakh (the time requires it). Three different views emerge from the works of Aharonim regarding the circumstances under which a dayan can exercise such authority:",
+ "Falk, in his commentary on Karo, attempts to delineate express guidelines. He states that if all the people are not dissolute as to certain matters, an individual may not be punished under this authority unless he is a habitual wrongdoer … Shakh views this analysis as an appropriate restatement of the principles as derived from the Talmud and as codified by the Tur. Falk’s approach is cited with approval by … Netivot, and Beer Hagola …",
+ "Sha’ar Ephraim … held that only if many people in the community are engaging in this type of conduct may an individual be punished.",
+ "This opinion … is in conflict with the holding of Falk and Maharam. For Falk holds that even where the majority of the people are not dissolute, if the individual is dissolute he may be punished by the court invoking its … power. And Maharam holds that even if the community is not dissolute or the individual is not dissolute, if a court feels that failure to punish this person may cause other people to feel that they might act in a similar fashion with impunity, the court may impose … sanctions.",
+ "In short, pursuant to the views of R. Falk, Shakh, Netivot ha-Mishpat, Be’er ha-Gola, and Maharam, if the individual is a habitual wrongdoer with regard to a certain practice or has frequently committed a transgression in public, an emergency situation exists in which we cannot allow the individual to continue acting improperly without imposing punishment. In such circumstances, a beit din may mete out punishment as a deterrent, so as to forestall the danger that others will emulate the transgressor’s conduct if it goes unpunished. The imposition of such punitive damages may be handed down by lay arbiters (beit din shel hedyotot).",
+ "Given that a contemporary beit din is empowered to impose such measures, it is our opinion that spousal physical abuse ought to be compensated in situations of repeated abuse, in order that others do not emulate the batterer’s ways.",
+ "Moreover, feelings of embarrassment and shame, which are engendered by acts of spousal abuse, may serve as grounds for a monetary award. Halakha recognizes compensation for nezek (bodily injury), tza’ar (emotional stress) which traumatizes the victim in avoiding the engagement in any future conjugal relations, and boshet (shame) engendered by bodily injury, where the payment varies from victim to victim, depending upon his social status. A beit din should factor into the calculation the social status of the person who was humiliated, as well as the circumstances and the intensity of the humiliation. For example, the assessment should take into account whether the bodily injury is in an exposed area and therefore the victim experiences humiliation after the time of injury, and whether the perpetrator continues to humiliate the victim regarding the battery (without ensuing injury).",
+ "Today, though min ha-din – pursuant to black-letter law – dayanim are not authorized to assess boshet, nonetheless, a contemporary beit din is empowered to impose such measures, le-migdar milta. Hence, spousal physical abuse ought to be compensated in situations of repeated abuse, lest others emulate the batterer’s conduct.",
+ "Such le-migdar milta awards are not unusual and in the past have been issued in cases of character defamation and in situations of broken engagements. In 1965, invoking their power of le-migdar milta, the members of the Supreme Beit Din in Yerushalayim, Rabbis Abudi, Elyashiv, and Goldschmidt marshaled numerous teshuvot to support their position that damages for boshet can be awarded in the case of a broken engagement. Pursuant to the standards outlined above, the assessed damages were based upon the discretion of the dayanim.",
+ "Similarly, a claim for tza’ar (emotional stress), even feelings of emotional pain that transpire during the healing process, will be awarded by a beit din. Halakha awards compensation for tza’ar provided that the pain is associated with a blow. Pursuant to Shulhan Arukh, regardless of whether we are dealing with pain associated with an injury or not, the award is based upon an assessment of how much money one would expend in order to prevent undergoing such tza’ar. In the absence of physical contact, le-migdar milta awards for tza’ar may be rendered. In fact, throughout different periods of Jewish history dating back to medieval times and to the present, arbiters have meted out compensatory awards based upon boshet and tza’ar claims.",
+ "On the other hand, in the absence of a physical contact, seemingly a beit din cannot hold an offender responsible for a person who feels emotionally abused and demands relief, i.e., boshet devarim. According to the strict law, responsibility for boshet requires that the victim has been physically contacted by the batterer. Nonetheless, a beit din today is empowered, le-migdar milta, to apply the identical standards employed to assess shame engendered by physical violence to situations of boshet devarim, provided that we are dealing with frequent instances of abuse and want to deter others from emulating a batterer’s behavior.",
+ "Finally, punitive damages, which may compensate above and beyond any damage incurred, are meant to provide an incentive against repeating the behavior that caused the victim’s injury. As such, punitive damages differ from compensatory damages, which focus upon “making the victim whole.” Here again, dayanim have meted out punitive damages in cases of spousal abuse.",
+ "Regardless of whether one files a claim for emotional distress due to physical abuse or emotional abuse, marital relations are complex, emotive, and subjective, and therefore difficult to subject to objective scrutiny. Marriages are molded by mutual understandings and interchanges as well as mutual expectations that can evoke different judgments as to whether a particular type of conduct should be labeled as emotional abuse. Nevertheless, given that in the past Halakha has awarded recovery for suits dealing with broken engagements and defamation of character, we see no reason to exempt spousal relations from the ambit of halakhic scrutiny and potential monetary award. Determining what conduct is abusive is a very difficult inquiry in any context, yet this is a beit din’s mandate.",
+ "Alternatively, in the absence of conditions which may be characterized as le-migdar milta or if one subscribes to the posture that such power may be invoked only by the gadol hador (the greatest scholar of the generation), there are three other avenues which would allow for the submission of such claims. Firstly, generally speaking, there is a requirement to maintain a beit din comprised of mumhim (dayanim who received ordination handed down from Moshe Rabbeinu). Such dayanim are empowered to award kenasot (penalties), including but not limited to matters of nezikin. In contemporary times, in the absence of mumhim, the power of beit din stems in part from the parties’ willingness to accept their authority, and the awarding of kenasot is therefore permissible. In effect, through the acceptance of their authority via the execution of a kinyan, the parties agree to obligate themselves to remit such monies should an award be rendered. This obligation is effective even though the parties do not explicitly state in the shtar borerut (the arbitration agreement) that the dayanim may issue a decision regarding a nezikin claim that may entail a kenas.",
+ "Secondly, since the parties empower the beit din to resolve matters in accordance with peshara (court-mediated settlement), the panel may resolve matters dealing with the halakhot of kenasot.",
+ "Finally, usually the couple signs a shtar borerut that authorizes the beit din halakhically and legally to issue a ruling. The shtar should specifically authorize the panel to resolve claims relating to various types of personal injury, namely, physical injury, pain, the incurring of medical expenses, loss of work time, experiencing shame, as well as indirect injuries. Although contemporary arbiters are generally precluded from addressing these nezikin claims, should the parties obligate themselves to accept a beit din’s decision regarding these claims, such a shtar is valid. In other words, the authority to issue a psak din is grounded in the couple’s willingness to fulfill their respective obligations, as in the case of any contractual agreement. Alternatively, such acceptance is no different than the imparting of validity to the litigants’ decision to accept a halakhically invalid witness (such as a relative) as an arbiter. Whereas invoking the power of le-migdar milta empowers a beit din to mete out punitive damages, these three aforementioned approaches permit a beit din to award compensatory damages. Compensatory damages represent the financial equivalent of the loss or harm suffered by the victim, to restore the injured victim to the position he was in prior to the nezek.",
+ "To award compensatory or punitive damages, the victim of abuse must demonstrate that the act(s) actually transpired. In the absence of a criminal conviction by a court, according to most Poskim a victim’s allegation that the spousal abuse or rape transpired is sufficient to establish a spouse’s misconduct as grounds to obligate a husband to give a get provided that the husband refrains from challenging the veracity of this allegation. Admission of guilt by the husband serves as adequate proof in order to grant an award. Moreover, even if the husband admits the occurrence, but claims that his wife provoked the assault, we do not necessarily believe the husband’s allegation. For the purpose of awarding damages, in the absence of a batterer’s admission, optimally there ought to be two male witnesses who can attest to the occurrence of the event. In the absence of two male witnesses, ineligible witnesses such as women may testify concerning incidents of infrequent assaults or insults, and the testimony of the wife may be reliable if the husband’s conduct toward his wife is known generally to be violent or if he exhibited intimidating and demeaning behavior toward his wife during a beit din proceeding. Consequently, in situations in which only an invalid witness was present during the time of the assault, such testimony is admissible even if it is contradicted by the alleged batterer and may serve as grounds for a nezikin award.",
+ "However, there are authorities who reject an ineligible witness testimony in matters of battery between individuals for which nobody else is present to offer valid testimony, or who affirm that extracting money from the batterer requires two Jewish male witnesses who can confirm abuse transpired. Nonetheless, though a woman’s testimony, for example, is invalid as edut (testimony) that a dayan is obliged to accept and follow, nevertheless a dayan may recognize that her words possess veracity and rely upon her testimony as umdana demukhra, circumstantianial evidence. In fact, recent beit din rulings ascertained proof of a husband’s assaults and threats through the testimony of invalid witnesses.",
+ "For example, in dealing with a case in which the wife claims that her husband assaults her and the husband denies the claim, R. Yitzhak Herzog writes,",
+ "… [I]t depends upon the discernment of the beit din, and I remember that already Rashba writes … that if we follow formal law and comply with the laws of testimony and mandate two witnesses, we will never be able to render a din torah (decision), and we are familiar with what Rambam wrote that essentially everything is dependent upon the perception of the arbiters … and the primary concern is that the beit din … shall hear the parties’ arguments … and if upon examination we find her claim to be truthful … we may conclude that the husband is a batterer.",
+ "According to this approach, even invalid witnesses are acceptable if we have reason to believe them. In addition, a friend’s awareness of the husband’s abusive relationship, police reports, social service findings, or or the existence of health care findings accompanied by an invalid witness testimony, can be used to lend credence in our case to instances of spousal rape or abuse and serve as grounds for a nezikin award. Circumstantial evidence such as a health care professional’s opinion and polygraph findings that attempt to determine the veracity of the parties’ claims regarding an alleged abuse, have been admitted in the past. Given that health care experts are concerned about their reputation and need to be compensated for their counsel, there is an assumption that they will submit credible findings. Just as we accept a physician’s findings that an expectant woman is in a life-threatening situation that justifies an abortion or a physician’s findings that a sick individual is in danger and therefore one can violate Shabbat or allow him to eat on Yom Kippur, we can also accept the findings of a health care professional, including a gentile. Moreover, pursuant to Rema’s position, psychologists and social workers who interview both the husband and the wife can assist in the fact-finding process regarding the stability of the marriage and the alleged incidents of abuse. Finally, a husband’s intimidating and demeaning behavior towards his neighbors and/or his disruptive conduct towards his wife during a beit din proceeding will lend credence to a wife’s allegations that she is a victim of abuse.",
+ "In short, if the allegation of physical violence can be proven through the batterer’s admission, the testimony of two male witnesses, or circumstantial evidence such as a health care professional’s findings or a husband’s behavior interacting with third parties and with his wife in beit din proceedings, there are grounds for a beit din to award monetary relief to the abused wife. In our scenario, the testimony of the wife and maid that the assault transpired, third-party testimony that attests to the violent character of the husband, and the testimony of a doctor regarding the husband’s proclivity to battery, are sufficient proof for the wife to argue that the events transpired.",
+ "In sum, in the absence of two adult Jewish male witnesses, there are two different evidentiary standards which allow a dayan to determine whether in fact the alleged abuse actually transpired. One relies upon the testimony of an invalid witness such as a woman, and the other focuses upon a constellation of factors, which, in addition to invalid witnesses, includes professional findings pertaining to the batterer and his known behavior in social interaction. Regardless of which standard is being invoked, the common denominator is well expressed in the words of Rashba, who states:",
+ "Each beit din [must judge] according to the local matter and time in investigating the matter; If there were witnesses – a man or even a woman … and according to the perception of the beit din, its wisdom and sharpness, [it will] recognize the matter based on the facts. This is why they should search and undertake numerous inquiries, and this is hinted in what has been said, “to judge a true din to the [fullest] truth” …",
+ "Likewise, R. Moshe Sofer observes,",
+ "It seems that the Torah did not require [two witnesses], except when the beit din did not know without the two witnesses. But a matter which is clear to them without having to trust witnesses, is as if they observed it on their own. And just like if the beit din witnessed the event themselves, the Halakha would be handed down without edut … likewise, if at every stage the beit din knows what took place without the trustworthiness of a witness, they are empowered to judge without testimony, and it is not subsumed under the category of “upon two witnesses” …",
+ "Regarding cases of spousal abuse, a recent beit din summarizes our conclusion,",
+ "Concerning violence between a couple that occurs in their home, it is almost impossible to bring valid witnesses. Therefore, it is incumbent upon beit din to rely upon ineligible witnesses, circumstantial evidence or documentation.",
+ "Upon determination that the incident of spousal abuse transpired, the beit din will determine whether a monetary award for boshet/tza’ar is appropriate. Should a beit din determine that the claim is with merit, the wife would receive monetary relief from her husband.",
+ "Finally, in the event the husband refuses to desist from physical and sexual violence, the wife is entitled to leave the marital home.",
+ "Lest one argue that Halakha recognizes only two options (marriage or divorce), and rejects the possibility of marital separation, Rema teaches us, “We neither coerce him to divorce her nor coerce her to live with him.”",
+ "On the contrary, the purpose of separation is to ease the tensions between the spouses and give each spouse time and breathing room to hopefully resolve their differences. Consequently, de facto separation is legitimate. The grounds for such separation are based upon the Talmudic logic that “a man cannot live in the same basket with a serpent” and “the purpose of our existence is for life not for pain.”",
+ "Whether a wife who abandons the home is entitled to continuing support is dependent upon the reason for her departure from the marital home. Should she vacate the home due to the fact that the husband is delinquent in his marital duties, such as his duty of spousal support, the wife would not be entitled to such remuneration. On the other hand, if the wife separates due to being abused, which is verifiable by invalid witnesses, as is the case in our situation, she is entitled to ongoing support as well as reimbursement for lodging expenses.",
+ "Procedurally speaking, all of these claims for spousal support and monetary relief for abuse, along with matters such as the get, parenting arrangements, and division of marital assets, are submitted to the beit din panel at the time of the hearing. Pursuant to the view of various decisors, the overwhelming majority of the battei din in the NY metropolitan area do not require submission of a claim statement to the beit din and the opposing party prior to the hearing. However, there are a few battei din that follow another position and mandate the submission of a claim statement, as well as a defendant’s reply, prior to the hearing.",
+ "The scope of the beit din’s jurisdiction, which is determined by the scope of the arbitration, is crucial. If the arbitration agreement is open-ended and states that “all differences and disputes relating to the end of marriage” are to be resolved, then all matters, including spousal abuse, will be addressed by the panel. If, on the other hand, the husband insists that the allegations of spousal abuse not be adjudicated by the panel, then the wife should seek beit din and rabbinic counsel which, among other things, should allow her to resolve this claim in civil court.",
+ "In conclusion, addressing spousal abuse in eighteenth-century Bulgaria, R. Eliezer Papo writes,",
+ "It is proper for the leaders of the cities to impose sanctions upon violent individuals, in particular decadent people that hit their wives … Their breath should depart — those who treat the daughters of Israel as servants, trampling and assaulting them … and they have no shame in their actions. Anyone who has the ability to impose sanctions ought to apply them … because a woman cannot live in the same place with a snake …",
+ "Historically, as we have shown, the beit din and/or rabbinic decisors have assumed this mission. As members of our self-respecting covenantal faith community, we need to follow in their footsteps and continue to bring such claims to our battei din and we need our dayanim to offer monetary relief, if justified.",
+ "2.",
+ "In a hypothetical scenario, a grown Jewish man of 23 years of age appeared in a beit din proceeding to accuse a former teacher of repeatedly molesting him while attending yeshiva elementary school. “I remember him touching me,” said the man, “He touched my private area.” At age ten, he was raped repeatedly. He stayed quiet for thirteen years, stuffing the pain within himself. He got a job, got married, had kids, and interacted with family and friends with a smile on his face. But every step of the way, he carried with him the suffering of the ten-year-old boy who was betrayed by his mentor. Eventually, the boy’s pain became too much to bear and he demanded that a beit din direct the yeshiva to terminate his teacher’s employment, and advanced a nezikin claim against his teacher for causing him shame and pain. Upon hearing about the alleged abuse scandal and the convening of this beit din proceeding, two other Jewish male adults stepped forward and testified in beit din regarding their own experiences as alleged victims of abuse perpetrated by the same teacher while attending this yeshiva elementary school. Advocating verbal persuasion as the only vehicle for educating children, the teacher admitted during the proceeding, that he did not use corporal punishment.",
+ "Rambam states,",
+ "Anyone who assaults an honest (kasher) individual of Israel whether he is a minor or of majority age … in a disrespectful fashion (derekh nitzayon, such as illicit fondling) violates a negative commandment … and one who lifts his hand, even though he has not hit him, is wicked.",
+ "Similar rulings were handed down by Shulhan Arukh and others. Yet, under certain prescribed conditions, a teacher is permitted to hit a child for educational purposes.",
+ "Based upon the teacher’s admission that he did not use corporal punishment in the classroom, we are dealing with a case of alleged child abuse rather than an instance of a teacher hitting his student for educational reasons. In the absence of a criminal conviction by a court, the question is whether we can accept as edut (testimony) the information provided by these three men in order to address the monetary claims advanced by the victim.",
+ "A similar question was addressed by a dayan in the mid-nineteenth century. In the year 1850, a teacher who was teaching in a town for a period of eight years was rumored to have engaged in homosexual liaisons with some of his students. A few of them who now had reached the age of thirteen spoke about his improper behavior. The teacher accepted upon himself “with an oath and a vow” that immediately after the close of the school year, he would move and seek employment elsewhere. His desire was to live and teach in Lvov located in the Ukraine. However, rumors of his alleged conduct quickly spread to Lvov and a respected layman of Lvov requested that R. Yosef Shaul Nathansohn, the town’s av beit din, investigate and inquire into this matter. Upon deliberation, R. Nathansohn received the testimony of two teenagers who alleged that this teacher had engaged in the aforementioned abusive behavior. The question posed to R. Nathansohn was whether the teacher ought to be disqualified from teaching.",
+ "R. Nathansohn’s reply was that such a determination requires the testimony of two male witnesses. Though both alleged victims were presently of majority age, nonetheless, given that their testimony related to incidents that transpired while they were minors, their present testimony is considered to be the testimony of minors. Consequently, given that we are dealing with minors, generally speaking their testimony is invalid. But R. Nathansohn invokes the Rema’s view (and others) according to which their testimony would be admissible and may be relied upon in cases involving battery where no male adults were present. As such, relying upon their testimony, and for the children’s welfare, R. Nathansohn precluded the teacher from accepting a teaching position in Lvov.",
+ "Given that various decisors challenge Rema’s posture, is there any other evidentiary basis for a teacher being dismissed or ineligible to teach children due to having been involved in alleged incidents of child abuse? In nineteenth-century Izmir, Turkey, a rumor spread that a teacher had touched a student’s private area. However, the incident could not be verified. Subsequently, another rumor spread that on Purim this teacher entered a home and molested a young boy in the same fashion. According to the rumor mill, this occurrence repeated itself in the same home on Pesach. In response to these rumors, the teacher argued that he never touched these boys. And in fact, in his two visits to this home, the teacher alleged, there were numerous individuals in attendance – how is it possible that they didn’t observe such conduct? The community was divided on whether to dismiss the teacher. Unable to corroborate that any of these incidents actually transpired, R. Hayyim Palache would not mandate the teacher’s dismissal.",
+ "The import of R. Palache’s position is clear. Lest alleged pedophiles lose their jobs and be publicly shamed for conduct that he or she never committed, it is incumbent upon beit din to critically investigate the allegations prior to rendering judgment. Addressing the alleged incident of a teacher molesting a young girl, R. Shmuel de Medina (known by the acronym “Maharashdam”) of sixteenth-century Salonika in the Ottoman Empire states,",
+ "Since all of Israel is presumptively credible (“be-hezkat kashrut”), unless there are proofs or significant justifications (“amatlaot”), one cannot undermine a person’s presumptive credibility.",
+ "In fact, a few years ago, within the context of a beit din setting, we addressed an allegation of a series of incidents of a teenager molesting a younger child in an Australian yeshiva dormitory. The tove’a (plaintiff), namely the parent who appeared on behalf of his child who was the victim of the alleged abuse, submitted his claim demanding a remuneration of his costs for the psychological counseling that his child required due to these experiences. However, the child neither appeared in front of the beit din, nor was the tove’a able to demonstrate in any shape or form to the panel that these incidents actually transpired. The beit din requested supporting documentation related to these incidents, but never received this evidence from the tove’a. Moreover, the tove’a failed to appear to hear the nitva’s (defendant’s) reply to the tove’a’s allegations. As such, adopting Maharashdam’s approach, the beit din was unable to perform its due diligence regarding this matter and the panel denied the tove’a any monetary relief.",
+ "In his extensive teshuva, responsum spanning over twenty pages, R. Palache sets forth, among other matters, the evidentiary standard required in order to terminate a pedophile from employment. Rejecting Rema’s posture, which argues for the admissibility of testimony by minors in cases of nezikin, R. Palache offers another standard. He concludes that, in the absence of two male witnesses who observed the conduct, an abuser could be dismissed from a school’s employment if four conditions are met. First, the child, the victim of abuse, has to be intelligent and of upstanding character. Second, the child must not bear any animosity or hatred for the alleged abuser. Third, the child’s experience has to be corroborated by at least two more children who experienced abuse by this teacher. Finally, the abusive behavior must have happened in a place where people were not present who could testify to the alleged event. Assuming that after intensive inquiry, the beit din arrives at the conclusion that they are dealing with an event which occurred in private with at least three different children who are intelligent and do not harbor any animosity towards the alleged pedophile, there are grounds for the teacher’s dismissal. In R. Palache’s mind, the introduction of these conditions is based upon the beit din’s power to act le-migdar milta, namely the necessity for evidentiary guidelines to address a pressing societal problem.",
+ "Another evidentiary stance suggested by R. Palache is to rely upon the testimony of ineligible witnesses and “kala de-lo pasik” (a persistent rumor). He distinguishes between this type of rumor and a “rinnun be-alma” (a mere rumor), which does not serve to corroborate that the event took place. R. Eliyahu ben Hayyim (known by the acronymn “Ranah”) suggests that there are two conditions that have to be met in order for the rumor to be labeled a “kala de-lo pasik.” First, the rumor must have been heard by many individuals and must not have subsided. Second, one must ascertain the source of the rumor. If, upon discovery, we find that the initiator of the rumor is an enemy of the alleged abuser, the rumor must be discounted.",
+ "Alternatively, based upon our foregoing presentation of the evidentiary standards employed to verify instances of spousal abuse, a dayan may rely upon the testimony of an invalid witness such as a minor, when accompanied by other factors, such as circumstantial evidence, including but not limited to professional health care findings and polygraph testing, in order to determine whether child abuse has transpired. In the absence of the testimony of two witnesses, cases of child abuse, like spousal abuse, may be resolved by utilizing alternative evidentiary guidelines.",
+ "In our scenario, depending upon which approach a beit din would adopt to determine whether abuse has actually occurred, a beit din is obligated to critically inquire into the credibility of the victims of abuse, their testimony, persistent rumors, and/or the circumstantial evidence which may serve to ascertain the veracity of the alleged event. Should the beit din ascertain that such an event transpired, it can then decide if there is a justification for employment dismissal and/or the rendering of monetary awards based upon claims of boshet/tza’ar, recovery of fees for therapy, etc.",
+ "In conclusion, in addressing the relationship between a parent and a child, R. Uziel aptly notes, “Neither the sons nor daughters of a man belong to him in the manner he owns his monetary assets.”",
+ "A fortiori, it behooves a parent, sibling, principal, rabbi, teacher, health care professional, and the like to hearken to R. Uziel’s words and protect the bodily and emotional well-being of our children and grandchildren, while simultaneously servicing their educational and psychological needs. We can expect no less. The dismissal of rabbis, teachers, and administrative staff from our synagogues, yeshivot, and youth organizations due to the perpetration of child abuse and the awarding of damages for mental anguish to the victims, serves as an important indication of the seriousness with which we must treat this issue. Ensuring that claims of abuse victims are settled expeditiously and appropriately is a beit din’s mandate.",
+ "Similarly, the opportunity to file an action in beit din regarding spousal abuse provides a communal recognition of the intrinsic value of human dignity.",
+ "Addressing these issues should be a collaborative effort of dayanim, as well as the health care professionals who will assist the beit din panel. During the past fifteen years, I have witnessed firsthand how child psychologists and experts in child abuse have been “the light at the end of the tunnel” in dealing with parenting arrangements for children of divorced families. We should expect no less in seeking their counsel regarding child and spousal abuse cases.",
+ "Some battei din employ a vetting process. In other words, upon receiving a claim, the administrative staff of the beit din will decide whether or not the claim will be heard by a panel of dayanim. For example, though there are grounds for mandating honoring and respecting a parent, nonetheless, the staff may choose to refrain from accepting a claim initiated by a parent of the victim of abuse for beit din resolution. Or, though there may be grounds for filing lashon hara (defamation) suits against individuals, the beit din policy may limit the acceptance of such claims to cases involving media communications and labor relations. In our opinion, the beit din vetting process regarding alleged abuse should be held to the minimum. Abuse cases, due to halakhic intricacies which we have briefly outlined, varying evidentiary standards and inquiries, and the societal need to address this ongoing issue in the Jewish community, require that a beit din’s administrative staff accept each and every case, provided that the alleged victim submit in writing some supporting documentation corroborating his or her claim.",
+ "Most administrative staffs of battei din accept any and every type of case brought to them, and leave it to the discretion of the dayanim to decide whether a particular matter is justiciable. Consequently, the decision whether to address such claims is in the hands of dayanim rather than administrators.",
+ "A beit din’s decision to refrain from hearing claims of abuse effectively bestows upon the injurer a form of “halakhic entitlement” to cause the injury. Perceived weakness of the beit din may only lead to increased violation and debasement of Halakha because others have done it with impunity. Unlike other legal systems, in Halakha, there is generally no statute of limitations in advancing such claims. Even if the alleged act of abuse was perpetrated twenty or forty years ago, a beit din is empowered to hear such claims today. Failure to deliberate upon these claims may undermine communal trust in rabbinic authority in general, and in rabbinical courts in particular. We hope that our articulation of these claims will allow battei din to live up to their mission of openly addressing the issues of the Jewish community.",
+ "Addendum",
+ "Should we be dealing with a beit din which obligated a husband to give a get and he refuses to comply with the beit din’s directive and the wife waives her right to the monetary award for spousal abuse given to her by beit din in exchange for receiving her get, it is our opinion that we are dealing with a situation of “kefiya le-davar aher,” coercion regarding another matter, and therefore the subsequent execution of this get does not produce a get me’useh, a coerced get, which would be invalid. To state it differently, since the nezikin award was handed down because of abuse rather than as a means to coerce the husband’s granting of a get, if the wife waives her right to the award in exchange for the get, any subsequent divorce avoids the strictures of a coerced get.",
+ "However, some Poskim may view this as a get me’useh shelo ke-din (an improperly coerced divorce). The question is whether contemporary Poskim ought to validate such a get be-diavad, ex post facto. It would seem that many, possibly the majority of Poskim would invalidate a get me’useh ex post facto. Seemingly, those contemporary authorities who argue that this is an instance of get me’useh would reject the validity of the executed get. Should either spouse remarry, questions regarding the personal status of a child sired from this relationship.",
+ "In my opinion such a conclusion is not necessarily forthcoming. Firstly, even if the majority of decisors consider a get me’useh to be invalid ex post facto that does not mean ipso facto that the Halakha is in accordance with the majority view. Secondly, it is this author’s hope that contemporary authorities, similar to Poskim in the past would subscribe to the view of Rambam that a get me’useh shelo- ka-din is pasul mi-derabbanan (rabbinically invalid) but not batel (null and void) and therefore a get delivered under the circumstances mentioned ought to be valid.In effect, though Hazon Ish may be consider Rambam’s view a minority opinion, there are others who concur with his view. Following in Rambam’s footsteps, these contemporary authorities would be endorsing the view of some well-respected Aharonim including R. O. Yosef that if she remarries, she can remain with her second husband.",
+ "Moreover, one may factor into consideration those Poskim who are lenient ex post facto in cases of monetary compulsion. Furthermore, Maharashdam, Oneg Yom Tov, and R. Herzog, though admitting that many disagree with Rambam’s view, nevertheless they conclude that Rambam’s psak ought to be controlling and in a case of halakhic doubt, one should rule in accordance with his posture.",
+ "Furthermore, Radakh and Hazon Ish contend that the existence of a majority view is to be viewed as “itmar hilkhisa” – the Halakha has been decided and one therefore cannot impart legitimacy to an individual opinion, even in extenuating circumstances. It appears that in their mind, “abiding by the majority” in halakhic controversy is akin to following the majority in a beit din proceeding. However, R. Ovadiah Yosef and others contend that debating a halakhic issue when the disputants are in absentia of each other and the emerging controvery is inter-generational, abiding by the majority does not necessarily apply. As such, the issue remains as a safek (doubt) and invoking a sefek sefeka, a double doubt, emerges in our scenario as a distinct possibility. And, in fact, as we mentioned, there are many Poskim who subscribe to the view that a get me’useh is null and void, yet in a case of sefek sefeka, they aligned themselves with Rambam’s view. In other words, there may be uncertainties regarding the Halakha that stem from controversies amongst the earlier authorities that create a sefek sefeka, and one may rule leniently in such a situation. In our case, some contemporary Poskim may contend that the executed get is valid ex post facto due to the existence of a sefek sefeka. First, there is a safek whether awarding a nezikin claim for spousal abuse produces a get me’useh shelo ka-din and second, there is a safek whether a get me’useh shelo ka-din is null and void. Consequently, one should follow the lenient opinion of Rambam and others and conclude that the execution of a get under such circumstances is invalid, but not null and void. As R. S. Tzvi Gartner, a well-respected authority on kefiyat get and a veteran dayan of Monsey, NY and Yerushalayim writes,",
+ "Some Aharonim have ruled against Rambam but there are those who state Rambam is not a minority opinion, and we should rely upon him for sefek sefeka to act leniently. Consequently, if a woman received kiddushin from another, she requires another get.",
+ "Furthermore, the majority opinion that a monetary imposition constitutes ones mamon (monetary duress) and therefore its imposition creates a get me’useh which is null and void, is predicated upon the levying of an exorbitant sum of money by a beit din. However, if the nezikin award is a small amount, it is financially non-threatening and therefore it is permissible avoiding the strictures of a get me’useh. Consequently, should we be dealing with a small award for spousal abuse, the question of a get me’useh shelo ka-din ex post facto does not come into question.",
+ "However, as we explained, even if we are dealing with a substantial monetary award, contemporary Poskim ought to either follow Rambam’s view, as others have done, and/or invoke a sefek sefeka which would validate a get me’useh shelo ke-din be-diavad.",
+ "Finally, even when there exists illicit coercion, it may be valid ex post facto if the couple is separated, in that the husband is exempt from providing food, clothing, and lodging, and is free to remarry. Under such circumstances accompanied by other arguments for permitting remarriage, R. Feinstein concludes that she can remarry.",
+ "If a wive receives a get in exchange for waiving her right to a nezikin award, it is incumbent upon Poskim to refrain from deciding in a stringent fashion by invalidating the get lest one cast “la-az al ha-Rishonim” (aspersions upon the early Sages), even if Rambam’s view is possibly a minority opinion. Furthermore, should one invalidate the get, it means that one is contesting the propriety of these executed divorces and any future offspring sired by either spouse who remarried would be impacted in terms of his personal status as a member of the Jewish community. Consequently, Poskim who argue that the nezikin award creates a get me’useh and claim that any resultant get is null and void ought to refrain from advancing their views to avoid the child having the halakhic stigma of a “mamzer” (a halakhic bastard). In effect, the consideration of “la-az al ha-Rishonim” is a relevant consideration regarding ishut (personal status) matters. Implicit in this approach is that in situations of shev ve-al ta’aseh (lit. “sit and do not act”), passive abrogation, a Posek may hand down a decision against the get; however, in a case of kum ve-aseh (lit. “arise and do”), an active abrogration, such as invalidating a get, he should refrain from deciding against it. Finally, there are numerous Poskim who contend that in matters of issur ve-heter, ritual law, including but not limited to the issuance of a get, one should refrain from rendering a judgment which would be “la-az al ha-Rishonim” in order to accord kavod, honor, to the early authorities. Their view would encompass even a situation of a husband and wife who were divorced subsequent to finalizing a private transaction as described above, and if either one decides to remarry in the future when there is no specter of halakhic stigma such as an impotent husband or an infertile wife, the get would be recognized. In fact, a contemporary beit din headed by R. Avraham Sherman mentioned approvingly a psak of R. Burdigo regarding the need to refrain from casting aspersions upon the propriety of a get that stems from a marriage that may have been a kiddushin al tenai, a conditional marriage and/or may be a get me’useh, letting the children be stigmatized as mamzerim. Consequently, a contemporary Posek should abstain from issuing a psak invalidating a get given under the above conditions.",
+ "In sum, for all the aforesaid reasons, even if some Poskim reject the validity of such a nezikin award, any subsequent get rendered by a beit din ought to be recognized by all segments of our community. Elsewhere, we arrived at a similar conclusion when dealing with a monetary award given to a wife who was unable to remarry and/or have children due to her husband’s recalcitrance in delivering a get. In effect, those Poskim who adopted Rambam’s position serve as one of the many examples that imbibes R. Moshe Feinstein’s weltanschauung that a rabbinic authority must render an autonomous judgment based upon his inquiry into the discussions found in the Talmud, commentaries, sifrei psak, and teshuvot.",
+ "In conclusion, an agunah who remarried under such conditions (waiving her right to such an award in exchange for receiving her get) is entitled to adhere to rabbinical guidance that follows the view that she is married."
+ ],
+ "Chapter 4; An Employer's Vicarious Liability for an Employee's Sexual Misconduct": [
+ "An Employer’s Vicarious Liability for an Employee’s Sexual Misconduct
In recent years, some of the rabbis, teachers, administrators, and health care professionals who were employed by our yeshivot, synagogues, and youth organizations of the Orthodox Jewish community have been convicted of child abuse.",
+ "How ought Halakha deal today with a yeshiva in New York City that employs a Jewish administrator, principal, or teacher who abuses one of its Jewish students? Though in our presentation, we will be addressing sexual abuse, our conclusions are not limited to sexual abuse, but encompass other forms of harassment, including assault, bullying, hazing, and sexual harassment. In the event that a victim files nezikin (civil damage) claims against the abuser’s employer in beit din, the question arises whether the yeshiva is responsible to pay the victim of abuse. Are there grounds for a victim of abuse to file a claim that he suffered diminished educational opportunities and educational accomplishments, diminished wages and salaries, as well as a non-economic claim for pain and suffering, against the employer of the abuser? Should in fact the institution be held responsible, we would in effect be invoking the notion of vicarious liability (or respondeat superior, lit. “the superior must answer”) which means that Halakha would hold an individual responsible for the misconduct of another, even though the individual is free from recklessness, personal blame, or fault, and is, in that sense, “innocent” of any wrongdoing. The modern justification for respondeat superior within the context of labor relations is that the employer chooses the worker, he controls the work and profits, and therefore he should also have to bear the risk, as he is in better position to absorb losses than his employee and therefore will be financially able to compensate for such injuries. Secondly, should a yeshiva or, for that matter, any Jewish institution which services the needs of our children, be halakhically treated in the same fashion in terms of responsibility as an employer who is concerned about a third party’s entrance into the workplace? Finally, is the yeshiva liable for acts of an employee’s abuse even when the yeshiva has exercised reasonable care to correct and prevent any such misconduct?",
+ "I. An Employer’s Responsibility for Bodily Injury Caused to his Employee",
+ "In the absence of an employer’s negligent behavior causing the injury, the threshold question is whether the employer is responsible for any bodily injury caused to his employee. If in fact, the employer is not liable, then there would be no grounds to even consider whether an employer ought to be responsible for injury caused to a third party, such as a student abused by an administrator or teacher in a school setting.",
+ "Addressing the mitzva of erecting a ma’akeh, a parapet on one’s roof, and the prohibition against standing idly by someone’s death, Sefer ha-Hinukh writes,",
+ "We realize that the Almighty, in his divine providence, knows exactly what will happen to every man, whether good or bad, decreeing according to his merits … Nevertheless, man must take all necessary precautions in every circumstance, for God created a world which follows the laws of nature: Fire burns and water extinguishes a flame … Likewise, someone falling of a high rooftop will die … Since by divine wisdom, our bodies … are subject to the laws of nature, He has commanded us to take all necessary precautions …",
+ "As Rambam states,",
+ "We have been commanded to remove all obstacles and danger from our homes and therefore we have to construct a wall to encircle the roof and around our pits … in order that no one may fall into them.",
+ "Strikingly, the mitzva of ma’akeh extends beyond the duty to construct a fence upon one’s roof. As Sefer ha-Hinukh aptly notes, “The fact that Torah mentions ‘your roof’ – the Torah speaking in the usual case.”",
+ "In other words, the mitzva of ma’akeh is to serve as a paradigm for dealing with multifarious life situations beyond the actual building of a fence around a roof to avoid risk and danger to human life.",
+ "Sensitive to this understanding of the mitzva of ma’akeh, already Rabbi Nathan in the Talmud exhorts us,",
+ "One who raises a wild dog or uses a rickety ladder in one’s home transgresses the verse “one should not place blood in one’s home.”",
+ "The commandment to provide a safe environment for both occupants of one’s home and third parties is not limited to one’s rooftop, but extends to raising a wild animal or using a rickety ladder in one’s residence. The violation of “one should not place blood in one’s home” (Devarim 22:8) extends beyond the failure to place a fence around one’s roof and encompasses the failure to monitor one’s pets as well as being derelict in maintaining the utility and safety of objects found in one’s home such as a ladder.",
+ "Noncompliance with the duty of constructing a ma’akeh entails the nullification of a positive commandment to construct a fence, as well as the negative commandment of “one should not place blood in one’s home.” As such, the mitzva of ma’akeh is a halakhic-moral obligation, which is usually unenforceable by a beit din.",
+ "Following in the footsteps of R. Nathan and the Sefer ha-Hinukh and realizing that the mitzva of ma’akeh is a halakhic-moral obligation that encompasses multifarious situations, R. Epstein and R. Uziel contend that hazardous materials found in the workplace are to be regulated based upon the mitzva of ma’akeh. In other words, the mitzva of ma’akeh is not limited to protecting an individual in one’s home, but equally extends to one’s place of employment. Moreover, as we noted, it is mitzva with no halakhic-legal consequences. Therefore, in order to be able to hold an employer halakhically-legally accountable for bodily injuries caused to one’s employees by hazardous materials found in the workplace, R. Epstein and R. Uziel suggest that one must invoke the nezikin (injury) claim of bor, a pit. The claim of bor covers scenarios in which an obstacle is created by an individual’s negligence, and another person is injured. The classic example is that of a person who digs a pit in a public thoroughfare, leaves it uncovered, and an animal falls into it. Adopting the halakhot of bor as the avenue for addressing an employer’s liability for the injury caused by potentially hazardous material in the workplace will depend on whether the employer’s permission to allow the worker to enter the workplace ipso facto means that he assumes responsibility for an employer’s claim of nezikin. This issue is a matter of halakhic debate. For those Poskim who argue that the employee’s entry into the workplace means that his employer assumes responsibility for any injury caused to the employee, then based upon hilkhot bor, the employer may be mandated by a beit din to pay for the injury. On the other hand, for those Poskim who contend that a worker’s entry into the work place does not assume an employer’s willingness to compensate the employee for potential injury, a beit din may not obligate him to pay damages. In short, whether an employer is responsible vis-à-vis the employee for exposure to hazardous materials in the workplace is subject to debate.",
+ "However, is an employer liable for directing an employee to engage in actual work that entails a danger to him? For example, knowing that an employee worked for their enemy, an employer’s creditors attack the employee, injure him and steal the merchandise. In this case, R. Yosef Trani obligates the employer to compensate his employee for his losses, which were caused by the employer’s negligence. Said conclusion was drawn by R. Trani’s inference from Rashba’s posture, a view which was subsequently endorsed by R. Moshe Isserles. And in fact, a few other Poskim concur that in cases of an employer’s negligence, he is responsible to pay for the bodily injury incurred by the employee. However, given that the employer did not assume responsibility to protect his employee’s bodily integrity, and given that many decisors reject the notion that an individual may be a shomer of the bodily integrity of another individual, many Poskim demur and contend therefore that he is exempt from liability. In short, in the event that there is no negligence on the part of the employer in the employee’s bodily injury or the injury to the laborer failed to transpire during the time of employment, many Poskim argue that the employer is exempt from responsibility.",
+ "Implicit in this conclusion is that liability for one’s behavior rests with the one who causes the injury rather than a third party, even when it is in a position of authority. Dating back to the time of the Second Beit ha-Mikdash (Temple), we encounter that the Perushim (the Pharisees), those who accepted the teachings of our Oral Law, and the Tzedukim (the Sadducees), those who rejected their rulings, already debated whether in fact Judaism accepts the notion of an employer’s vicarious liability for his employee’s actions. Recounting this controversy, the Mishnah in Yadayim informs us,",
+ "The Tzedukim said: We are protesting against you Perushim. If you argue that my ox and donkey who are exempt from mitzvot, that I am liable for the injury it caused, likewise my bondsman and bondswoman that are obligated in mitzvot, isn’t it clear that I would be obligated to pay for the injury they caused? They replied to them: No – If you say this regarding my ox and donkey who are bereft of intelligence, should we likewise say the same regarding my bondsman and bondswoman who possess intelligence? For if I anger them, they may go out and set on fire someone’s stack and I shall be liable to pay.",
+ "In other words, according to the Perushim, the servant’s master is not liable for the damage caused by the servant.",
+ "Subscribing to the Perushim’s view, post-Talmudic authorities such as Tosafot and Meiri conclude that even if the slave intended to harm another individual, his master is not responsible for any ensuing damage. Similarly, if a servant steals, his master is not duty-bound to pay for the theft. The concept of individual responsibility is not limited to a master-servant relationship, but extends equally to halakhic marital ties. As Mishnah instructs us, though during her marriage a wife who injures somebody is exempt to pay for the injury caused, nonetheless, upon divorce she is obligated to pay from her assets. Or should the wife own assets during the marriage that are not under the husband’s control, she must remit compensation during the marriage. In short, a wife is responsible for the damage she caused to others.",
+ "The responsibility of a wife as well as a slave for damages is a reflection of the general rule that if Levi instructs Yehuda to violate Halakha and Yehuda does so, Yehuda is liable and Levi is not. For example, if Levi tells Yehuda to dig a pit, which Yehuda does, and Moshe falls into the pit and is injured, Yehuda is liable. Or, to give another example: An owner of hops entrusted his hops to a shomer (bailee) who has his own hops, and the shomer instructed his servant to put some hops into the beer, pointing to his own hops. However, the servant inadvertently placed the bailor’s hops into the beer instead. Subsequently, the bailor sued to recover the value of his hops. Shulhan Arukh rules that the shomer is exempt from responsibility. The servant is also not obligated to pay since his master, the shomer, did not specifically instruct him to put these hops in and not the others. Since the bailee’s instructions to place “some hops into the beer” were unclear in regard to whose hops, the servant is not liable to pay. Obviously, had the shomer’s instructions been clear and had the servant failed to comply with them, the servant would have been obligated to pay for the value of the hops. Here again, Halakha recognizes the notion of individual responsibility for one’s behavior. The one exception to the rule of individual responsibility is that a minor who engages in nezikin is exempt from responsibility when he attains majority age. But here again, this exception is understandable and reflects the halakhic affirmation of individual responsibility. Since the act of nezikin was committed during a period when a minor is exempt from mitzvot, and responsibility only commences for actions done when one reaches majority age, therefore a minor is exempt from liability even upon attaining the age of majority.",
+ "In short, the mitzva of ma’akeh instructs us that an individual Jew must provide a safe environment that will minimize the exposure to risk. Secondly, the concept of individual responsibility undergirds the interaction between individuals, including but not limited to master-servant ties, spousal relationships, bailment matters, and relationships with minors. In sum, in responding to the question of whether an individual is responsible for the damage caused by someone else, the Talmudic reply is “an individual is obligated to protect his own body.” ",
+ "II. An Employer’s Responsibility for Injury Caused by his Employee",
+ "A similar conclusion that we found regarding injury caused to the employee may be found in the context of an employer’s responsibility for injury caused by his worker. For example, in a baraita we encounter the following teaching,",
+ "Our Rabbis taught: Once the quarryman has delivered [the stones for building] to the chiseler [for polishing and smoothing], the latter is responsible [for any damage caused by them]; the chiseler having delivered them to the hauler, the latter is responsible; the hauler having delivered to the porter, the latter is responsible; the porter delivers the stones to the bricklayer, the latter is responsible; the bricklayer delivers them to the foreman (to set the stones in place), the latter is responsible. But if after he had placed the stone properly in place, it caused damage, all are responsible. But has it not been taught: only the last is responsible, while the others are exempt? – There is no difficulty – the second refers to a laborer, the first case to an independent contractor.",
+ "Addressing the situation of injury caused to the employer or a third party by a laborer, the baraita directs its attention to whether the other workers who are employed on the same project are responsible to pay for the damages caused. Does it make a difference whether we are dealing with a group of contractors who are being compensated for a project or a group of wage earners who are paid by the hour? The Tannaitic reply is that if the damage was directly caused by a worker, regardless of whether we are dealing with workers who earn an hourly wage or contractors who are compensated based upon the completion of a project, liability resides solely with the mazik, the tortfeasor. As the aforementioned baraita states,",
+ "Once the quarryman has delivered [the stones for building] to the chiseler [for polishing and smoothing], the latter is responsible [for any damage caused to a third party].",
+ "And such a conclusion is seen as authoritative amongst the authorities. Accordingly, if the actual damage transpired after the worker completed his job, then one must distinguish between a group of laborers and a group of contractors. Concerning the latter group of contractors, given that they all were partners in this enterprise and were jointly responsible for any ensuing damage, they all are jointly responsible to pay for the damages. However, a wage earner is hired to perform a particular job, and therefore only the last one will be liable.",
+ "On the other hand, in addressing a scenario of a contractor causing damage, the Mishnah in Bava Metzia instructs us,",
+ "If a builder undertook to remove a wall and broke the stones or damaged someone, he would be liable to pay.",
+ "Accordingly, if a builder is contracted to demolish the wall, and he breaks the stones during the dismantling or injures a passerby, the builder is liable. The inference drawn from this Mishnaic ruling is that if we are dealing with a builder who has been hired on a per diem basis, if he causes property damage or he himself injures a third party from the dismantling of the stones, the employer as well as the employee would be jointly responsible in paying damages. The rationale is that an employer will supervise his wage earner’s job and therefore he is responsible for any nezek (damage) that was done by his laborer during his employment while working with his employer’s property. On the other hand, an employer has neither control nor the capacity to supervise a contractor’s work; therefore, he is exempt for any nezek committed by his employee. Clearly, should an employer of a group of contractors undertake to accept joint responsibility for damages incurred in the baraita case, he would share in the liability. However, should the pain continue to persist after the actual injury, the laborer is solely responsible for the damages.",
+ "As is aptly noted by R. Sha’anan, a dayan who served on Tel Aviv’s beit din the aforementioned Mishnah and subsequent halakhic discussions are silent regarding employer’s liability for other types of nezek, such as the case of an employee who during the performance of work tramples on another person’s property located on the work site. Moreover, there is silence regarding whether employer liability extends to an employee who assaults or sexually abuses a coworker or a third party while on the job. It seems that in these instances, sole responsibility for such misconduct resides with the laborer. Consequently, it would seem a principal or teacher who abuses his student is solely liable for his own misbehavior. In fact, assuming a particular state permits corporal punishment of students by teachers, if a teacher utilizes excessive force in attempting to educate a student, he, rather than the employer, is responsible to pay for damages. But, is a student in a yeshiva setting to be treated halakhically like a third party in the conventional workplace?",
+ "III. The Halakhic Mandate for a Safe Workplace",
+ "If in fact, the yeshiva, as the employer, is exempt from responsibility for any monetary claims advanced by the victim of abuse against one of the yeshiva’s employees; does that mean the yeshiva is absolved from introducing policies of hiring, supervision, and training dealing with sexual misconduct, which would hopefully create a safe environment for students? Firstly, Halakha is concerned for the victim of abuse, and ensuring that abuse does not take place must be of primary concern. In addition, the establishment and employment of such policies serve as a concrete articulation of our covenanted responsibility of arevut, guaranteeing that our fellow Jew observes Halakha. Obviously, engaging in child abuse in any shape or form of improper touching or fondling is a halakhic violation. Hence, an employer, similar to every individual Jew is duty-bound to ensure that his employees are engaging in proper conduct, and thus must introduce policies with the aim of preventing employees and third parties from working in a sexually hostile environment.",
+ "Moreover, our duty to promote a safe worksite is underscored by our mandated love of our fellow man, as Sefer ha-Hinukh observes,",
+ "One should act with his friend as he is accustomed to behave for himself, to protect his property and to prevent that injuries befall him … If he injures his property or pains him, he has transgressed this positive commandment.",
+ "Consequently, the weltanschauung of Halakha based upon the notion of love of our fellowman and arevut would entail that the employer properly screen his potential employees by interviewing them and contacting their references. And once employed, the employee ought to be supervised and receive training in proper sexual behavior.",
+ "Furthermore, Halakha is not merely concerned with the prevention of improper sexual misconduct in the workplace. Failure for a yeshiva or any Jewish institution for that matter to deal with actual abusive behavior occurring under their watch entails a violation of “And thou shall restore it to him.” Summarizing the interplay between mitzva of lo ta’amod al dam re’ekha, the obligation to assist somebody in peril, and “And thou shall restore it to him,” the duty to restore a lost object to its owner, R. J. David Bleich writes,",
+ "The obligation to save the life of an endangered person is derived … from the verse “Nor shall you stand idly by the blood of your fellow …” The Talmud and the various codes of Jewish law offer specific examples of situations in which a moral obligation exists with regard to rendering aid. These include the rescue of a person drowning in a river, assistance to one being mauled by wild beasts, and aid to a person under attack by bandits …",
+ "This obligation is predicated upon the scriptural exhortation with regard to the restoration of lost property, “And you shall restore it to him” … On the basis of a pleonasm in the Hebrew text, the Talmud declares that this verse includes an obligation to restore a fellow-man’s body as well as his property …",
+ "A latter day authority, R. Yehudah Leib Zirelson, in his Teshuvot Atzei ha-Levanon, no. 61 argues cogently that the obligations posited by the Gemara … apply under non-life threatening circumstances no less than in life-threatening situations. The verse “And you shall restore it to him” … mandates not only the return of lost property, but a fortiori, preservation of life as well … Accordingly, declares Atzei ha-Levanon, restoration of health to a person suffering from an illness is assuredly included in the commandment “And you shall restore it to him.”",
+ "In short, the divine imperative of “And thou shall restore it to him” is not limited to the recovery of lost objects but equally encompasses the restoration of psychological well being, as well as physical health, of a fellow Jew.",
+ "This obligation is enforceable, as is evident from the immunity granted to the rescuer for any injury committed during the saving of the recued party. Additionally, despite the fact that the rescuer has the right to sue the rescued party for any financial expenses incurred during the rescue operation, nonetheless, the failure to restore health does not result in any legal consequences. The duty is a halakhic-moral obligation that a Jew must comply with in order to fulfill the requirements of Heaven, i.e., hayav be-dinei shamayim.",
+ "To state it differently, a Jewish institution is not only obligated based upon the norms of love of one’s fellowman and arevut to professionally create and implement policies regarding hiring, which entails background checking and fingerprinting, supervising, and training of employees regarding sexual misconduct. Employee training should deal with such matters as meeting alone with students, appropriate physical contact, suitable topics of conversation, and going to students’ homes and having students in their homes. Implicit in such a mandate is that the yeshiva as an employer is duty-bound to serve as a shomer over the bodily integrity of its students. Any suspicion of sexual abuse should be recorded and investigated, and the individual should be monitored. As we have seen, whereas the halakhot of labor relations preempt an employer’s responsibility for bodily injury caused by his employee to a third party, here, when dealing with an institution that is servicing children and therefore acting in a custodial, caretaker capacity, they mandate that certain administrative policies be established and implemented.",
+ "Moreover, should an actual act of abuse occur, prompt action ought to be taken against the employee by discharge based upon the halakhic imperative of “and you shall restore it to him,” i.e., insuring the psychological health of the victim of abuse. Finally, assuming there is a credible allegation of abuse and there are reasonable grounds that the abuse transpired (“raglayim le-davar”) or actual knowledge of an act of abuse, the employer must comply with the mandated reporting laws of the state where the abuse occurred, and if required by law, ought to notify the civil authorities regarding the incident. The aforementioned policies represent what may be best described as a yeshiva’s zero tolerance policy vis-à-vis employees who may be or who are child predators. These administrative guidelines concretize how to fulfill our obligations of love of one’s fellowman, arevut, rebuke, and active intervention to assist a fellow human being in peril, and thus transform the unconcerned ruggedly individualistic American Jewish bystander into a Jew fulfilling his covenantal imperatives of care for the plight of one’s fellow Jew.",
+ "Furthermore, failure to employ a policy of dismissal entails a violation of afrushei me-issura, which minimally is a violation of a rabbinic prohibition or maximally a transgression of a biblical interdict. As a member of our covenant-faith community, a Jewish employer, like every Jew, has a duty to prevent the commission of a transgression (le-afrushei me-issura). The interdict of afrushei me-issura is grounded either in our covenanted responsibility of arevut, the obligation to guarantee that our fellow Jew observes Halakha, or based upon in the mitzva of admonishing a neighbor who is straying from the dictates of the Torah. To allow an employee who is under suspicion of being an abuser or is actually engaging in pedophilia to roam the workplace without supervision and accountability is a travesty.",
+ "In sum, based upon the foregoing presentation, the yeshiva, as an employer, is halakhically obligated to implement certain administrative policies to ensure a safe environment for its students. Yet, should abusive behavior be perpetrated by one of its employees, a yeshiva that has implemented such policies, similar to any employer, would not be vicariously liable for his worker’s sexual misconduct.",
+ "IV. “Dina de-Malkhuta Dina” – An Avenue towards the Recognition of an Employer’s Vicarious Liability",
+ "The remaining question is whether there are any halakhic grounds to hold an employer who implemented such policies liable for an employee’s sexual misconduct? Clearly, should a labor agreement or an insurance policy deal with an employee’s liability for injury caused by the employee, the agreement dictates the conditions and scope of institutional responsibility for such hezek perpetrated by the employee. However, in the absence of an agreement addressing this issue, is an employer responsible? Will an employer always be held responsible for employee sexual misconduct, or will he be exempt from liability should he demonstrate that hiring, supervisory, and retention policies were in place at the time of the alleged act of abuse?",
+ "Given that the abuse transpired in New York City, seemingly the doctrine of “dina de-malkhuta dina,” lit. “the law of the kingdom is the law,” may serve as an avenue for a the victim to file suit in beit din against his abuser. In accordance with Rema, which is the accepted view amongst the majority of Poskim, dina de-malkhuta dina is applicable to all matters that fall under the rubric of “le-takanat bnei ha-medina,” for the benefit of the citizenry. As understood by Rema elsewhere, any legislation relating to social interaction is to be subsumed in the category of le-takanat bnei ha-medina, and therefore requires Jewish compliance. In contemporary times, legislation relating to labor relations is one of the many examples of a law that is le-takanat bnei ha-medina. Numerous Israeli dayanim including Rabbis Izrirer, Sherman, and Tzadok invoke Rema’s approach in halakhically recognizing civil labor law. It is clear in these cases that our desire to foster a sexually safe working environment facilitates proper social interaction. As such, seemingly the doctrine of dina de-malkhuta dina may serve as a vehicle for addressing whether Halakha ought to recognize an employer’s vicarious liability in cases of an employee’s sexual misconduct.",
+ "Let’s briefly present how New York courts have dealt with employer’s vicarious liability as it relates to sexual harassment and abuse. A review of the law in New York City will demonstrate how our matter has been resolved differently in the late 1990s in comparison to more recent years. Sexual harassment claims, including but not limited to sexual abuse, have been resolved in New York in pursuance to the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (“Title VII”) and the New York City Human Rights Law (“NYCHRL”) which is codified in part in the New York City Administrative Code. Various New York courts have noted that claims brought under NYCHRL are to be resolved in the same fashion as claims advanced under Federal Title VII and have been rendered in accordance with two United State Supreme Court decisions. In 1998, the United States Supreme Court in two separate decisions, Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth furnishes the guidelines that shield the employer from federal sexual harassment claims. Assuming the plaintiff has proven sexual harassment by an employee who exercised managerial or supervisory responsibility, the employer must prove that (1) he exercised reasonable care to prevent and correct any harassment; (2) action was taken against the offending employee (e.g., discharge, demotion, or undesirable reassignment), and (3) made use of any preventive and corrective mechanisms to avoid the harm. Upon demonstrating compliance with these safeguards, the employer was exempt from responsibility for his employee’s misbehavior. These guidelines were endorsed by NY courts.",
+ "In effect, these secular legal guidelines are a concretization of the notions of arevut, love of one’s fellow man, afrushei me-issura, and “and you shall restore it to him,” which, if implemented, serve to promote a work environment which is free of sexual harassment and abuse.",
+ "Applying the Farager-Ellerth guidelines to our scenario, should student abuse have occurred in 2008 at the hands of a New York City yeshiva principal or teacher and the school had established and implemented hiring, supervision, and retention polices concerning abuse, the yeshiva would have been exempt from liability. However, if the yeshiva was negligent regarding any one of these policies, in light of New York court decisions, a beit din invoking the doctrine of dina de-malkhuta dina may have imputed responsibility to the yeshiva and the school would be required to pay civil damages. Placing an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising or retaining the employee, serves as grounds for imputing employer liability.",
+ "Subsequently, over a decade later in 2009–2010, some New York courts abandoned applying the Farager-Ellerth guidelines for addressing lawsuits brought under NYCHRL. In Zakrzewska v. The New School, a federal court in the Southern District of New York concluded that the Farager-Ellerth guidelines for harassment liability do not apply to claims under NYCHRL. Additionally, the court concluded that NYCHRL creates vicarious liability for the acts of managerial and supervisory employees, even when the employer has exercised reasonable care to prevent and correct any such harassment.",
+ "Answering a question certified to it by the United States Court of Appeals for the Second Circuit, the New York Court of Appeals in Zakrzewska v. The New School acknowledges that state and local civil rights law must be interpreted in light of federal law. Moreover, the language of New York City Administrative Code imputes vicarious liability for the employer, even if he complies with the Farager-Ellerth guidelines and has created a safe workplace. And, numerous New York courts have endorsed the Zakrzewska v. The New School ruling mandating an employer’s liability even where the employer implemented hiring, supervision, and retention polices and took immediate and appropriate corrective action. In effect, the courts have precluded the use of the Farager-Ellerth guidelines as an avenue for an exemption of an employer’s vicarious liability rather than rejecting them. As such, in accordance with New York law, a New York City yeshiva would be liable for child abuse even if it had established and implemented policies that promote a safe work place, such as producing records relating to retention, supervision, discipline, termination, and complaints or investigations regarding an employee accused of sexually abusing a student. To state it differently, concerning abuse, a New York City employer is strictly liable.",
+ "However, most Poskim contend that the rule of dina de-malkhuta dina is inapplicable when dealing with judge-made law such as US Supreme Court and New York court decisions, because generally the law, as interpreted by the courts, evolves and is ever changing. And, in fact, as we have shown, New York law has evolved from initially absolving an employer from liability in situations in which hiring, supervision polices were operative, and subsequently to mandating responsibility even when said policies were implemented. In the minds of these Poskim, dina de-malkhuta dina is to be invoked only with regard to a determinate body of law, i.e., statutory law. And, therefore, New York law which is judge-made law would not be recognized based upon dina de-malkhuta dina.",
+ "Consequently, secular law memorialized in judge-made law will not provide the grounds for addressing whether an employer ought to be responsible for the abuse committed by his employee. Hence, should a victim of child abuse lodge a monetary claim against the New York City yeshiva in beit din, arguing that dina de-malkhuta dina should serve as the grounds for justifying his claim, it may be rejected.",
+ "V. “Minhag” – An Avenue towards the Recognition of an Employer’s Vicarious Liability",
+ "Though the doctrine of dina de-malkhuta dina may not serve to address our situation, nonetheless minhag ha-medina, national or local practice, may be a more halakhically promising approach for dealing with our issue at hand.",
+ "Halakha establishes the guidelines for setting up various types of commercial relationships, including but not limited to shutafut (partnership), arevut (surety), and labor relations. At the same time, Halakha recognizes the ability of parties to enter into agreements that may be at variance with the guidelines set down by Halakha. As such, any issues between the parties would be resolved in accordance with the provisions of their mutually agreed-upon arrangement.",
+ "If there is a minhag dealing with a certain matter in monetary affairs, even though the minhag does not have the endorsement of a rabbinic authority or communal leadership, and the origin of the minhag is non-Jewish, we presume that whoever signs off on a commercial agreement or obligates himself to an individual intends to obligate himself in accordance with the minhag. So for example, if a business agreement fails to be finalized in accordance with a shtar (recognized halakhic-legal document), nevertheless, should the minhag validate the transaction based upon commercially accepted modes of undertaking an obligation, the agreement would be halakhically valid. Or if there is a minhag that a partnership undertakes responsibility for a hezek caused by one of its partners, the partnership is liable even though such responsibility was not articulated in the agreement.",
+ "This rule that when one enters into a transaction one is bound by local custom even if the parties fail to mention the practice in their agreement extends equally to labor relations. In the absence of a labor agreement specifying the daily hours of employment, the Mishnah, for example, communicates to us that one follows the prevailing practice, which is to begin work later in the morning and return complete work prior to the evening hours. And upon employment, should the employer insist in pursuance to the din that the laborer begin work early and end late, given that the original agreement does not address this subject, the minhag of beginning work late and finishing early becomes one of the mutually agreed upon terms of the agreement. However, should the parties have mutually agreed prior to the onset of employment that the hours of work would begin early and end late, such an agreement would trump the minhag.",
+ "To understand the effectiveness of minhag in general and in regard to our scenario in particular, let’s briefly present the building blocks for establishing the authority of minhag. For a minhag to be binding, three conditions must be obtained. Firstly, the custom must be clear. Secondly, it must be practiced throughout the country or the locale that is practicing the behavior. The presumption that the parties intended minhag to be determinative when entering into the agreement is predicated upon the fact that the custom is “pashut” (widespread), otherwise one cannot assume that this is the parties’ intent. The criteria for ascertaining if a minhag is “pashut,” are subject to debate. One approach is that the dayan is the arbiter who will determine the frequency of the minhag. Some argue that the minhag must be prevalent on a daily basis. Others contend that it must have been practiced at least three times. Furthermore, according to many Poskim, the parties to a business agreement, including but not limited to a labor agreement, need not possess knowledge of the actual existence of the minhag.",
+ "The autonomy of minhag and its effectiveness to define commercial ties are not limited to practices that transpire in the business community. According to most Poskim, one can grant halakhic validity to civil legislation by virtue of minhag. In other words, as contemporary Poskim such as R. Zolty, R. Feinstein, R. Elyashiv, R. Waldenburg, R. Y. Weiss and R. Lavi note, a minhag may emerge from civil legislation. The concept of minhag is not limited to a practice in a locale that is frequent, widespread, and clear, but equally extends to any law that is widespread, clear, and exists in statutory form and/or frequently interpreted by the courts. To state it differently, the existence of civil laws regulating labor relations does not mean that ipso facto it is to be recognized as a minhag that ought to govern an employment agreement. For minhag to be determinative, according to certain opinions, it has to have transpired at least three times, which must be attested by two witnesses. However, if the definition of a minhag being “pashut” is that it is a daily occurrence, then the testimony of two witnesses is insufficient. In our scenario, unless the prevailing practice is clear, its existence must be demonstrated by inquiring from numerous individuals whether yeshivot utilize employment contracts prepared by attorneys that provide that disputes be resolved in accordance with secular law. Then and only then one may contend that minhag as reflected in secular law is “pashut” and therefore determinative, serving to resolve contentious issues.",
+ "Just as any minhag may serve to define the terms of a business agreement even though the parties are actually unaware of its existence, so too minhag will establish the choice of law that will govern the commercial arrangement. In other words, even if the yeshiva and the employee in their agreement did not specifically mention that civil law ought to govern any contentious issues by dint of the existence of a minhag, absent any provision to the contrary, their intent is to enter into the agreement on the basis of local law. Furthermore, the umdana (assessed expectation) which we encounter regarding minhag is that the law is applicable – even its details, independent of the fact that the parties are ignorant regarding the details of the applicable law and/or that the law is subject to change. The assumption is that the parties may avail themselves of the services of an attorney in order to ascertain the state of the law. Therefore, ignorance of the details of the law is no excuse. Moreover, when invoking minhag, we assume that people who accept the authoritativeness of minhag not only assume that the details may be unfamiliar to them but that the content may vary from time to time. Nevertheless, they are ready to manage their commercial ties in accordance with the minhag, namely the law. As such, even if the minhag is “pashut,” that labor relations in the network of New York City yeshivot are being governed by New York City labor law, the fact that there is no awareness regarding a specific labor law or that the New York City law regarding a particular labor law has changed since the date their agreement was consummated, is immaterial.",
+ "In a series of teshuvot dealing with bankruptcy law, tenancy law, and labor law, R. Moshe Feinstein endorses the notion that minhag reflects civil legislation and may be invoked as determining a matter even if the parties expressly fail to mention the norm emerging from the minhag in their commercial agreement.",
+ "Moreover, in accordance with R. Feinstein’s view, even if the local custom differs from Halakha, the custom will prevail due to the fact that it was the parties’ intent to have their matters resolved in accordance with custom, namely secular law, even in a case of a specific law which generally may be unknown by the populace. As Hazon Ish observes,",
+ "The law of the kingdom determines the expectation of the people. Since we customarily abide by the law of the kingdom under certain prescribed conditions, the law influences people, who then decide to rely on civil law.",
+ "Addressing the question whether an employer can dismiss a worker without cause, R. Feinstein writes, “Any custom that they may stipulate is in actuality Torah law.”",
+ "Adopting such a perspective is not limited to the issue of dismissing a worker without cause. As noted hundreds of years earlier by Rashba, even though generally Halakha exempts an employer from liability for bodily injury caused to his worker, nevertheless minhag may serve as the grounds for workman’s compensation. Similarly, though generally Halakha exempts an employer from liability for an employee’s act of abuse, minhag, namely the governing law, ought to serve as a basis for obligating a yeshiva to compensate for an employee’s sexual misconduct.",
+ "Invoking Rashba and R. Feinstein’s approach, we can now address our scenario. A child was abused by his principal or teacher in 2012 at a yeshiva located in New York City. In the absence of an insurance policy or an employment agreement that addresses whether a yeshiva is liable for abuses caused by one of its employees, we may invoke that minhag ought to serve to determine the parameters of the yeshiva’s liability. As such, though the applicable halakhot of Hoshen Mishpat that deal with labor relations do not obligate a yeshiva to compensate a victim of abuse monetarily, nonetheless, minhag as reflected in New York City law may serve as grounds for such monetary relief.",
+ "Said conclusion is premised upon three propositions. Firstly, regardless of whether the yeshiva and employee mutually agreed in their labor contract that any disputes that may arise be resolved according to Halakha by a beit din, the umdana is that even God-fearing Jews intend that minhag, namely that governing civil law, ought to be factored into arriving at a decision. Secondly, New York City statutory law as well as the courts’ interpretation of the law is reflective of minhag. In other words, the minhag factors into consideration the fact that details of the law may change due to the varying opinions of court justices even after a yeshiva’s labor agreement has been signed and/or the abuse transpired. Moreover, minhag is authoritative even if the law or details of the law, such as an employer’s vicarious liability, are unknown to the parties. As such, the content of the minhag is determinative. Finally, even though New York City law as interpreted by the courts differs substantially from Halakha regarding the issue of a yeshiva’s vicarious liability, nonetheless the law as articulated by the courts trumps the halakhot of employment relations. To state it differently, even though the norms of Hoshen Mishpat concerning labor relations would exempt the yeshiva from liability for the teacher’s sexual misconduct, nonetheless minhag, namely applicable New York City law in 2012, would impose liability upon the yeshiva regardless of whether it had proper hiring, supervision, and retention policies in place prior and during the time of incident of abuse. And therefore, should a monetary claim by a victim of abuse be advanced against the yeshiva in 2012, the school ought to be held halakhically responsible based upon the import of minhag.",
+ "Finally, a reply to the contention that this minhag is to be a labeled a “minhag garua,” a practice devoid of logic and purpose, due to the fact that the norms of Hoshen Mishpat do not impute employer liability for an employee’s sexual malfeasance, nevertheless the employer may be responsible for the following reason. If one endorses the minority view that one individual can be a shomer for another person’s bodily integrity, then an employer such as a yeshiva may be viewed as a shomer who is protecting his students, and should abuse occur “under his watch,” he ought to be monetarily responsible, like a parent who is construed as a shomer vis-à-vis his/her minor children. To state it differently, a yeshiva as a shomer must oversee its employees and ultimately its students “ke-derekh ha-shomerim,” lit. “in accordance with the standard amongst bailees.” “Ke-derekh ha-shomerim” will vary from locale to locale.Absent any institutional guidelines and policies, its scope and parameters may be defined by minhag, namely the governing law. Consequently, even though the yeshiva may have established and implemented a policy of supervising its employees, nevertheless, should an employee engage in abuse, New York City law may find the yeshiva monetarily responsible for such misconduct, even though the yeshiva did not act negligently. In short, minhag trumps hilkhot Hoshen Mishpat, which would have exempted the employer from responsibility.",
+ "Various objections may be leveled against implementing minhag as an avenue to resolve whether the yeshiva ought to be vicariously liable for one of its employee’s misconduct. First, as we have seen, given that the application of minhag may vary depending upon the posture of New York law regarding our issue of an employer’s liability, it means that the minhag is unclear and therefore fails to serve as a vehicle for addressing our matter. If the minhag is unclear, how can one presume that the parties intended that it govern their relationship? To state it differently, the applicability of minhag, similar to the invoking of dina demalkhuta dina, requires that the governing law be statutory rather than judge-made law, which may be ever-changing.",
+ "Second, unless it is crystal clear that the parties desired that contentious matters be resolved in accordance with minhag, namely civil law rather than hilkhot Hoshen Mishpat, there are no grounds available for invoking the umdana that minhag ought to prevail. Since American law allows arbitration courts, including battei din, to resolve matters of labor relations according to Halakha, one cannot assume that parties who appear at a beit din implicitly intend to have their differences resolved in conformity with civil law. As Maharashdam notes,",
+ "If we have even a slight doubt, we should not follow a minhag … and when you want to uproot the din torah from its place, you must produce a proof …",
+ "In other words, the existence of the minhag must be widespread and clear, namely people’s awareness that secular labor law is governing one’s commercial affairs. Absent such awareness, we invoke Halakha, which would mean that an employer would be exempt from responsibility for his worker’s misbehavior.",
+ "Moreover, admittedly, individuals may have the intention to resolve their matters in pursuance of minhag, namely the governing New York City law, but details of the law may be unfamiliar to them. Consequently, minhag may not be determinative. However, should the practice of legally imposing vicarious liability upon an employer, even in the context of a safe workplace, have been known to have occurred in one jobsite three times, or once in at least three different places, or that many people are aware that the law mandates employer’s vicarious liability, then and only then may we invoke minhag.",
+ "Furthermore, given that New York City law has changed since the consummation of the labor agreement between the yeshiva and the employee, the minhag at the time of the execution of the labor agreement (namely, New York law prior to Zakrzewska v. The New School) ought to prevail, and therefore the yeshiva ought to be exempt from responsibility. Consequently, for all or any of the foregoing reasons, imposing an employer’s vicarious liability in cases of an employee’s abuse lacks halakhic foundation.",
+ "In conclusion, though hilkhot Hoshen Mishpat, including but not limited to labor relations, mandate that a pedophile, regardless of whether he sexually misbehaves during the time of employment or after hours, is personally monetarily liable for his own behavior and his employer is not. Nonetheless, according to Rashba and R. Feinstein’s approach, one may conclude that should the parties’ expectations be that minhag, namely, secular law, obligate them in their commercial relations and should the law mandate an employer’s liability for his employee’s sexual misconduct, the employer would be monetarily liable. Said conclusion is predicated upon the fact that the parties did not mutually agree in their labor contract that the employer would be exempt from responsibility for any sexual misbehavior that may be perpetrated by his employee in the future. Others, as we noted, have explicitly or implicitly dissented from this position and argued that minhag fails to serve as an avenue for mandating an employer’s liability.",
+ "Unlike New York law, in Halakha, there is generally no statute of limitations in advancing such claims for employer liability. Even if the alleged act of abuse was perpetrated twenty or forty years ago, a beit din is empowered today to hear claims against an employer, such as a loss of educational opportunities, diminishment of salaries, reimbursement of health care expenses, and noneconomic claims such as pain and suffering. Nevertheless, such a beit din decision would be unenforceable in some states such as in New York.",
+ "Deciding between the competing arguments in our case will be the sole prerogative of the Posek. The relative strength of each argument applicable to our case, its effectiveness and plausibility, will hopefully be tested within the framework and constraints of future halakhic decisions."
+ ],
+ "Chapter 5; The Status and Role of a To'ein Rabbani in the Beit Din Process": [
+ "The Status and Role of a To’ein Rabbani in the Beit Din Process
Generally, a to’ein rabbani, i.e., rabbinical advocate, is an individual who is well versed in the Shulhan Arukh (in particular Hoshen Mishpat and Even ha-Ezer) and Poskim, as well as knowledgeable in civil law. He is hired by a party to represent a litigant who is appearing at a din torah proceeding (case) and will advance claims on behalf of his client and respond to counterclaims of the opposing party. Numerous Poskim invoke the Talmud Yerushalmi’s appellation “anetlar,” which is the Greek word for an attorney, or designations such as “melitz” (advocate), “to’ein” or “shaliah” (agent) to identify a party’s representative.",
+ "To fully understand whether a to’ein is to be recognized as a participant in a beit din proceeding dealing with monetary matters, we need to briefly outline various building blocks that define civil beit din procedure. Firstly, though Halakha recognizes the ability of parties to appoint agents to represent them in their daily affairs, nonetheless, there is a mandate that in a beit din proceedings, both parties appear in front of the panel in order for the dayanim to ascertain the truth. Consequently, to avoid inaccuracies in the reconstruction of the facts and the articulation of the arguments by the litigants, there is a prohibition to hear arguments from a meturgamen, i.e., a translator. As such, the parties themselves have to be present to speak to the beit din panel.",
+ "Should a party exhibit difficulty in expressing himself, there is an obligation incumbent on the dayan under certain prescribed conditions of “petah pikha le-ilaim” (lit. “open your mouth for the mute”), i.e., to assist the litigant in pleading his case. Moreover, though a dayan may not communicate to a party any new arguments, nevertheless halakhic arguments such as procedural matters (the validity of a woman and/or minor’s testimony), or halakhic shortcomings in an agreement such as asmakhta (the lack of firm resolve to negotiate an agreement), or the inability to obligate oneself or transfer something due to the fact that it is davar she-lo ba la-olam (something which is not yet in existence) may be disclosed to a litigant. Additionally, depending upon the facts of the case, a dayan can articulate arguments on behalf of a recipient of a gift, an heir, or a buyer.",
+ "On the other hand, there will be instances in which a dayan will be proscribed from invoking a procedural rule or a halakhic argument. In other words, under certain circumstances, a dayan must avoid communicating arguments on behalf of a litigant.",
+ "Simultaneously, the dayan “walks a tightrope” and must refrain from becoming an advocate for a particular party. Advocacy of a particular position may teach the party to lie or advance arguments that are false, incorrect, or inaccurate, designed to bring about a miscarriage of justice. Echoing the words of the Rambam, Radvaz aptly notes,",
+ "One requires a great degree of focus and incisive perception to distinguish between the one matter [permissible pleading on behalf of a party] and avoiding being an advocate [for a particular party].",
+ "As Rashbatz exhorts the dayan,",
+ "We do not say in every situation “petah pikha le-ilaim,” it depends upon the opinion of the dayan … and he should not engender suspicion …",
+ "Consequently, it is unsurprising to find that Poskim are critical of a dayan who is a member of a zabla panel (acronym for zeh boreir lo achad – each litigant chooses their dayan and the two dayanim then choose a third) who advances arguments of deceit on behalf of the litigant who chose him, rather than serving as an unbiased and disinterested dayan, advocating arguments on behalf of the party who chose him that are halakhically sound.",
+ "The requirement of integrity and “distancing onself from falsehood” extends itself to everyone, including to’anim as well as dayanim. The prevalence of unethical practices used by some to’anim to win their cases, such as fabricating arguments that are factually and/or halakhically incorrect, training their clients to submit false claims, or misconstruing the facts, have led some Poskim, including Rif, Ri Migash, Rashi, Ramban, Ran in the name of Rambam, possibly Maharam of Rothenburg, Beit Yosef, Darkhei Moshe, Bah, Mabit, R. Shmuel Kali, R. Yair Bachrach, and R. Ovadiah Hadaya to prohibit their appearance and participation at a beit din proceeding. And in fact, in the past, some communities passed legislation prohibiting the appearance of any counsel for a proceeding. The results of this position are that dayanim address the halakhic issues without availing themselves of outside assistance and are capable of dealing with the litigants and their machinations, as well as offering limited counsel to the parties on a case-by-case basis. Moreover, some decisors assume that a dayan could “walk the tightrope” of assisting a litigant in articulating his claims, without engaging in any behavior where the dayan assumes the role of an advocate for a litigant. As such, there is no need to have a to’ein in attendance at a beit din proceeding. Some of the beneficial consequences of adopting this posture are that the litigants are not trained to employ deceptive tactics or craft false arguments and will be receptive to forge a peshara (compromise) if the circumstances dictate proceeding in such a fashion.",
+ "On the other hand, other Poskim, including Arukh, Rabbeinu Hananel, Ri ha-Zaken, Rashba, Ra’ah, Meiri, Maharik, Urim ve-Tumim, R. Ya’akov Emden, Arukh ha-Shulhan, Hoshen ha-Ephod, Hazon Ish, R. Sternbuch, R. Avraham Horowitz, and R. Zvi Yehuda ben Ya’akov, as well as the overwhelming majority of battei din (established battei din as well as zabla panels) in the New York metropolitan area, allow (rather than obligate) the parties to avail themselves of halakhic counsel. For some Poskim, even if the to’ein received a ketav harsha’a from the litigant authorizing the to’ein to appear in the absence of his client, the litigant must be present at the actual beit din proceeding. And some Poskim argue that prior to the to’ein’s actual presentation, the litigant should submit his claims and arguments to the beit din panel.",
+ "The role of a to’ein expresses itself in the halakhot of edut, i.e., testimony. Generally speaking, a person must refrain from testifying in a matter from which he may benefit, i.e., noge’a ba-davar. One of the rationales for this Halakha is that we are suspicious that such an individual would submit tainted testimony. Seemingly, one would expect that a to’ein who is a noge’a ba-davar refrain under all circumstances from submitting testimony on behalf of his client. Nevertheless, some Poskim argue that as long as the to’ein’s remuneration is based on his time investment rather than his ability to win the case for his client, he is not construed as a noge’a ba-davar and therefore his appearance in a beit din under such conditions is permissible. In other words, Poskim who permit halakhic advocacy argue that one cannot summarily assume that all to’anim lack credibility, and therefore deny their appearance in beit din. This is why we do not assume a to’ein who receives compensation for his services based upon his time investment will lie on behalf of his client. Adopting the perspective of the aforesaid Poskim, there is a presumption that a to’ein will vigorously pursue his client’s objectives with integrity and a sense of fairness. In effect, though these Poskim were well aware of the Mishnaic and Midrashic exhortations against rabbinic advocacy due to the potential for corruption, they hold that there is nevertheless a presumption of credibility and that the to’ein possesses the ability “to walk the tightrope.”",
+ "However, what if a to’ein undermines his hezkat kashrut, i.e., presumption of credibility, because he received compensation linked to the outcome of a case, or for another reason? Would Poskim prohibit his advocacy in future dinei torah? For example, even though in general Rashba rejects the possibility of appointing to’anim for various reasons, including issues of credibility, nevertheless under certain circumstances, such as a dayan prone to error or a defendant incapable of articulating his arguments, Rashba permits their appearance. Similarly, though Ritva admittedly is aware that an anetlar may advance claims grounded in falsehood, nevertheless he allows his appointment, in part based upon the instructions of his teachers, Ra’ah and Rashba.",
+ "A few hundred years later, R. Hayyim Benveniste of seventeenth-century Izmir, Turkey railed against the deceptive practices of to’anim and contended that it is prohibited for a to’ein to advance arguments that are devoid of truth, but he refrained from outlawing their appearance in beit din. During the same century in Poland, R. Shmuel ben David ha-Levi, renowned author of Nahalat Shiva, described the rabbinic advocates as those “who search the books for logical argumentation and halakhot which are right in their eyes, and in the majority of instances they ingest the waste and throw out the food when they realize that the Halakha did not agree with them.” Here again, the Posek does not prohibit the continued use of a to’anim, but advises the dayan to rebuke them for their improper conduct. The renowned seventeenth-century Posek, R. Shabbetai ben Meir ha-Kohen (known by the acronym “Shakh”) of Vilna and later of Holesov, Moravia lambasted to’anim who “are deceptive … even in a matter which is devoid of reality,” yet he refrained from advocating the abolition of the institution of rabbinic advocacy, as can be seen in the his subsequent ruling.",
+ "Subsequently, in one of the lengthiest teshuvot dealing with the prohibition of litigating one’s matters in secular court, R. Avraham Hayyim Rodriguez of eighteenth-century Livorno, Italy criticizes in the most trenchant terms those who proceed to civil court to address their litigious matters in order to avoid appearing in a beit din serviced by to’anim, whom he describes as those who “distanced themselves from truth and justice and drew closer to falsehood … and communicated to the dayanim matters that never came into the mind of the litigant.” Yet, here again, the Posek continues to proscribe a Jew from litigating his case in civil court, and does not ban the practice of rabbinic advocacy in beit din. To state it differently, despite the to’anim’s deceptive tactics, R. Rodriguez refrains from issuing a heter arkaot, permission to litigate their case in civil court.",
+ "This posture continues to persevere to this very day among various contemporary Poskim. Addressing a twentieth-century situation of a crafty and conniving to’ein, an opposing party exclaims that he is unable to defend himself against such an individual and demands that R. Shmuel Gaimazian of Yerushalayim prohibit the to’ein’s appearance at the din torah. In a succinct teshuva comprising nine lines, R. Gaimazian denies the questioner relief and concludes with the following words,",
+ "In a place where it is customary that a defendant has a murshe (loosely translated as a to’ein), he must stand with the opposing party for resolution of the case and he cannot argue in such a manner.",
+ "Though criticizing to’anim who manipulate the system to promote their client’s best interests, R. Yosef Elyashiv and R. Yehezkel Roth, the Karlsberg Rebbe, do not raise the possibility of abolishing the institution. Finally, a few years ago, in possibly one the most scathing and detailed critiques of the tactics of to’anim who display the art of deception and obfuscation recorded in our sifrei teshuvot (responsa literature), R. Yehuda Bracha in his teshuva concludes based on his experience that one is permitted to be a to’ein provided one serves with a sense of fairness and integrity. Here again, the Posek refrains from banning the institution of to’anim. In 2009, R. Avraham Drabermediker, a Yerushalmi dayan and an author of a treatise on beit din procedure concurred with R. Bracha.",
+ "Optimally, as we mentioned, there is a need for a to’ein to abide by the prohibition against advancing arguments of falsehood and fabricating evidence, yet as we have shown, the views of Rashba, Ritva, R. Hayyim Benveniste, R. Shmuel ben Dovid ha-Levi, Shakh, and Rabbis Rodriguez, Elyashiv, Roth, Gaimazian, Bracha, and Drabermediker direct us to the conclusion that a beit din hearing may be conducted where a litigant is utilizing the services of an unscrupulous to’ein. The expectation is that the to’ein will exhibit credibility. But, should he display tactics of deception, as halakhically objectionable as such behavior may be, the aforementioned Poskim do not seek to outlaw the institution of rabbinic advocacy.",
+ "A review of some of the teshuvot reveals various reasons for permitting a litigant to avail himself of the services of a to’ein. First, attuned to the varying capabilities of a ba’al din, some Rishonim observe that “there are some people who are clever and know how to contradict the words of their antagonists.” The inference to be drawn from this statement is that some individuals are unable to articulate their arguments. Hence, one may avail himself of the services of a to’ein if he is incapable of pleading his case due to the lack of requisite skills in articulating his claims, incapable of formulating questions aimed at evoking the opposing party’s reply, or bereft of the talent to read and understand legal documents and financial records. Sometimes, a party is incapable of responding to the opposing party’s questioning and/or is high-strung and emotionally irate, which stymies the party’s self-expression. Hence, the presence of an intermediary such as a to’ein who is well-informed regarding the facts and claims of the contentious matter may serve to “moderate the atmosphere” and articulate his client’s position based on his scrutiny of the facts and review of the documentation.",
+ "Second, as we mentioned, a dayan must be very careful in maintaining his role of independence, being “above the fray.” Consequently, to preempt the possibility of transforming a dayan into an attorney advocating the claims for one party, the role of assisting the litigant in articulating his claims should be the province of the to’ein. Clearly, the to’ein must foster the promotion of justice rather than serve as an advocate fabricating lies. Lest one argue that in the presence of a to’ein, a dayan may be relieved of his duty to assist a party in articulating his claims, over sixty years of halakhic practice of the Israeli Rabbinical Courts clearly tells us a different story. A cursory glance of their piskei din reveals that the dayanim, while in the presence of to’anim, may nevertheless serve in an advisory capacity to the litigants.",
+ "Third, R. Yosef Alfandri offers a historical reason for the value of having to’anim,",
+ "It is nice and pleasant that Torah scholars be murshim, because they can search the sources of the Poskim … and show it to the beit din.",
+ "Clearly, in this community of nineteenth-century Constantinople, the Torah scholarship of the to’anim contributed to fill the gaps of knowledge found among the local dayanim. In fact, today, there are some to’anim who are more proficient in Halakha than some individual dayanim and/or some beit din panels in some major cities around the United States. As such, the expertise of the dayanim remains a factor in retaining to’anim. Implicit in such an argument is that the dayan, who albeit is less knowledgeable than a particular deceptive to’ein, has the learning skills to scrutinize the merits of the to’ein’s halakhic presentation, and if need be, to seek halakhic counsel and arrive at an informed and credible psak din.",
+ "Fourth, despite Sma and Shakh’s repeated reservations regarding the appointment of a translator or a to’ein because of his lack of credibility, nevertheless since both litigants have voluntarily accepted the jurisdiction of the beit din and implicit in such acceptance is that to’anim will participate in the beit din process, Sma and Shakh conclude that the practice should be permitted.",
+ "Finally, other Poskim validate the appearance of a to’ein based upon minhag (custom) either construing it as if the litigants have consented to this institution or without grounding it in the consent of both litigants. Consequently, echoing the words of Aruch ha-Shulhan and Tumim, R. Eliav Shochetman of Yerushalayim, an internationally renowned expert on beit din procedure communicated to this author the following:",
+ "I do not know on what basis a beit din has the authority to prohibit the appearance of to’anim given that the minhag that developed is that both the plaintiff and the defendant can have representation in beit din.",
+ "Attesting to this ongoing minhag, recently handed down piskei din appear on the web on a weekly basis from battei din under the aegis of Israel’s Chief Rabbinate and/or from Eretz Hemdah-Gazit network, in which litigants are represented by to’anim.",
+ "Whether the minhag of having to’anim depends on the decision of the litigants remains an open question. Implementing Radvaz and Hazon Ish’s view that the consent of both litigants is required in order to permit to’anim, to the best of my knowledge there is at least one standing beit din in the New York metropolitan area which insists that both parties must demand the services of a to’ein in order to permit their appearance and participation at a beit din proceeding.",
+ "Consequently, absent the mutual agreement of the litigants to have to’anim, if one party requests a to’ein and the opposing party refuses to have one, the pending din torah will be resolved without the services of a to’ein. However, echoing the words of Sma, Hazon Ish, and the Beit Din ha-Gadol in Yerushalayim, the overwhelming majority of battei din in the New York metropolitan area will allow the appearance of a to’ein by one party even if the opposing party decides to proceed without the services of a to’ein, or if the opposing party requests that the beit din hearing take place without the presence and/or participation of to’anim.",
+ "In sum, explicit or implicit in the position espoused by Rashba, Ritva, R. Benveniste, R. Shmuel ben Dovid ha-Levi, Shakh, and Rabbis Rodriguez, Elyashiv, Gaimazian, Bracha, and Drabermediker is the recognition of all or some of the aforesaid reasons for why litigants as well as a beit din panel would want to avail themselves of the services of a to’ein. To state it differently, though there is a consensus that a to’ein is not required at a beit din proceeding, nevertheless, even if the to’ein may be of dubious credentials, there may be a redeeming value in retaining him. And in fact, generally speaking the minhag today is to allow to’anim to participate in beit din hearings. In effect, the ramifications of their posture is that while in certain instances the dayan may have to assume the daunting challenge of traversing a minefield of lies attuning himself to the deceptive tactics of a to’ein, the redeeming qualities of a to’ein together with discernment and halakhic acumen will help him arrive at a coherent and persuasive decision based on the halakhic cogency of the claims. If one is permitted to continue a beit din proceeding which entails a din merume, a proceeding marked by a fraudulent monetary claims contrived by a to’ein, this means that under such circumstances it is incumbent upon a dayan to persevere, carry forward the din torah, and arrive at a psak din shel emet, a ruling reflective of the truth.",
+ "Well aware of the machinations of the “yetzer ha’ra” (the evil impulse) and the existence of deception in the human persona, the late R. Eliyahu Dessler, mashgiach ruhani (spiritual supervisor and advisor) of the Ponevezeh Yeshiva in Eretz Yisrael observes,",
+ "Since bribery blinds the learned and man cannot discern his own faults, how can we ever arrive at the truth? … The answer is that bias never completely conceals the truth … the inability of the yetzer to obscure the truth entirely is the direct result of the Creator’s ever abiding kindness to his creatures. Every individual has the capacity of determining in his own heart where the actual truth lies.",
+ "As Vilna Gaon observes,",
+ "The dayanim have to be proficient also in the way of the world in order to avoid a fraudulent judgment. If they will fail to have expertise in these matters even if they are well versed in Torah scholarship, the judgment will not be true.",
+ "A Jew’s mission to discern between truth and manipulation equally extends to a Jew who assumes the mantle of dayanut who must deal with litigants and to’anim who may exhibit duplicity and deceit. Even if a litigant fabricates an argument in order to instill fear in the opposing part’s mind and heart, it is a dayan’s mandate to inform him “you are speaking a lie.” In other words, a dayan must be capable of discerning truth from falsehood regarding a litigant’s argumentation. We can expect no less from a dayan confronting a to’ein’s pleadings.",
+ "On the other hand, there are battei din today that prohibit the appearance of a to’ein at a beit din proceeding. For example, in Yerushalayim there is at least one beit din that will outlaw to’anim due to their deceptive tactics and another beit din that will ban them because the panel wants to hear from the litigants directly rather than through an intermediary.",
+ "In conclusion, the propriety of allowing a to’ein to participate in a beit din proceeding is subject to controversy. Should a to’ein’s behavior be marked by deceit and manipulation, it is a matter of halakhic debate whether it then becomes the dayan’s responsibility to recuse him from this din torah. It is the prerogative of the Posek and/or beit din to decide what policy it ought to pursue regarding these matters.",
+ "Addendum",
+ "The foregoing presentation shows that there is a divergency of halakhic opinion regarding the propriety of retaining a to’ein of dubious credentials for a beit din proceeding. Despite the highly objectionable presence at a proceeding of a to’ein that is crafty and deceptive, nonetheless as we have shown, there are Poskim who fail to ban the institution and nonetheless trust that a dayan will have the ability to distinguish between truth and falsehood and arrive at a credible decision. And there are others who prohibit a to’ein’s appearance and are unwilling to rely upon the dayan’s ability to persevere and attain the emet, the truth, for the parties involved.",
+ "This halakhic debate is not limited to our issue regarding the propriety of having a to’ein present at a din torah. In fact, there are numerous instances regarding beit din procedure where we encounter a controversy regarding the parameters of halakhic judicial ethics in general and the willingness to trust a dayan to render a proper psak din in particular. For example, prior to knowing that he would serve on a case, a dayan hears ex parte the arguments from one party and communicates to the party his opinion regarding the merits of the tove’a’s pleadings. Is that rabbi permitted to serve as a dayan for that pending matter? If a rabbi hears the arguments of only one side and offers his view concerning the matter, some Poskim are concerned that he has crystallized his position and therefore will not be receptive to weighing the evidence and arguments of the opposing party submitted at the time of the din torah. As such, he would be invalidated from serving as a dayan for the din torah. However, others would permit him to be retained as a dayan for the proceeding. Here again, the question is: Can we trust the dayan to issue a credible psak or not after having heard the arguments ex parte from one party?",
+ "Another example of a debate that centers around our willingness to trust a dayan that he will hand down a credible decision deals with the procedures implemented in a zabla proceeding. Many Poskim will allow a boreir to speak prior to and during the proceeding with the party who has selected him. Nonetheless, others will prohibit such conduct. Whether the parties must remit equal compensation to their respective boreir is equally subject to debate. Some decisors insist that their renumeration must be identical while others permit that a boreir’s compensation may exceed that of the opposing boreir. In fact, some shtarei borerut, arbitration agreements, explicitly state that the boreirim may receive unequal compensation. In other words, parties may explicitly agree that a dayan may be a noge’a ba-davar, an interested party. Here again, some authorities place their trust in borerim who conduct ex parte communications with their party and receive compensation for their services in an amount that exceeds the renumeration received by the opposing boreir from his party and still trust that they will retain their integrity and issue a proper ruling. In short, despite the disparity between the various judicial practices, the common thread that underlies all of these practices is that some Poskim are ready and prepared to trust in a dayan’s integrity to render a credible judgment under extenuating circumstances. As such, just like a dayan prior to a hearing who heard the arguments from one party in the absence of the opposing party, we trust in his ability to reach a just decision. Similarily, we trust that a boreir can advance sound and credible halakhic arguments for his client despite the fact that he may be engaging in ex parte communications with his client and may be receiving more compensation than the opposing boreir. Given such a posture, one can readily understand that many contemporary American and Israeli Poskim entrust a dayan with being able to deal with a to’ein of dubious credentials rather than advocating the abolishment of the institution.",
+ "Such conclusions will raise the eyebrows of individuals such as attorneys who have been imbued with a code of professional judicial ethics that looks askance at such practices. As noted by the Beit Din ha-Gadol in Yerushalayim, the halakhic guidelines for judicial responsibility may be markedly different than that of a civil code of judicial ethics. Obviously, in the United States, a beit din ruling is viewed as a binding arbitration decision provided the panel complies with the rules of civil arbitration. As such, the propriety of the particular judicial practice adopted by the panel, as well as requirements of proper disclosure to the parties of the potential prejudice of a dayan, must pass muster with the provisions of arbitration law. Failure in compliance with civil law requirements may result in a civil court vacating, nullifying the beit din psak din. As such, even if a particular judicial practice has halakhic approval, should it stand in variance with the rules of civil code of judicial ethics, a beit din ought to refrain from adopting such a practice based upon dina demalkhuta dina, the law of the kingdom is the law, as well as avoid running the risk that its decision will be vacated by a civil court."
+ ]
+ },
+ "Part II; Rabbinic Authority; The Reality": {
+ "Chapter 6; Decisions in Even haEzer": {
+ "a) Spousal Rape, the Grounds for Divorcing an Adulterer, Retrieving Electronically Stored Information Incident to Divorce, and Nezikin Claims": [
+ "A. Spousal Rape, the Grounds for Divorcing an Adulterer, Retrieving Electronically Stored Information Incident to Divorce, and Nezikin Claims",
+ "Rochel Rabinowitz v. Ya’akov Rabinowitz",
+ "Ya’akov Rabinowitz (hereafter: Nitva) and Rochel Rabinowitz (hereafter: Tova’at) have been married in accordance with Halakha for ten years and reside in New Jersey. Rochel begins to suspect that her husband is having an affair. Rather than hire a private detective to observe her husband’s activities, she decides to engage in some “self-help discovery.” The tova’at boots up the family computer, which both the husband and wife use without passwords, and logs into the Nitva’s e-mails that had already been read and were in “post-transmission storage.” Among the e-mails she finds are numerous communications to and from a woman, one of the Nitva’s co-workers; the e-mails are intimate and of a romantic nature. After her discovery of these e-mails pointing to her husband’s engagement in an extra-marital affair and hearing rumors of his behavior, the Tova’at offered them as evidence during divorce proceeding for consideration by the beit din as grounds for obligating her spouse to deliver a get to her. Additionally, people observed him interacting with this woman.",
+ "Two years ago, the Nitva moved out of the marital home and he continues to refuse to deliver a get to his wife.",
+ "The above parties signed a shtar borerut, an arbitration agreement empowering this beit din panel to resolve this matter according to the applicable portions of the Shulhan Arukh and Poskim.",
+ "Tova’at’s Claims",
+ "Based upon the production of the Nitva’s e-mails which reveal that over a period of a few months he has been engaging in an extra-marital affair, which exposes him to sexually transmitted diseases (STD) such as AIDS, as well as the fact that various individuals have submitted testimony that the Nitva has been seen in the company of this woman, the Tova’at is requesting that the beit din obligate the Nitva to deliver a get to the Tova’at.",
+ "Moreover, in the few times that the Nitva engages in conjugal relations, Tova’at claims that Nitva came to her incessantly during the night, insisted on repeated intercourse, forced her to engage in unnatural cohabitation, leaving her intolerably sleepless and exhausted.",
+ "Nitva’s Reply",
+ "Though Nitva admitted that these e-mails were from his computer, nevertheless Nitva argues that he never wrote them. In addition, he argues that even if he is the author of these e-mails, it is a violation of Federal and NJ law as well as Halakha to submit evidence in marital disputes that has been unlawfully retrieved from electronically stored information. Furthermore, even if this improper conduct happened, Nitva claims he continuously protected his spouse by using a condom. Since a condom is highly effective in preventing HIV (the virus that causes AIDS), herpes simplex, hepatitis B, and gonorrhea, Nitva claims that he is not endangering his wife’s health and therefore a get should not be granted. Finally, the fact that he has been in the company of this woman does not mean that he is engaging in an illicit relationship with her. In the absence of definitive proof that he committed adultery, there are no grounds for a beit din to direct him to deliver a get to his wife.",
+ "Nitva admits to Tova’at’s claim of spousal rape, but argues that Rambam writes that a wife must be attentive to all his wishes. In fact, unnatural conjugal relations without his wife’s consent is seemingly sanctioned in a Talmudic dictum that states, “A husband may do whatever he wishes to his wife.”",
+ "In short, alleges Nitva unconditional intercourse is what a Jewish marriage is all about, and therefore, there are no grounds for giving his wife a get.",
+ "Discussion",
+ "1. The Retrieval of Electronically Stored Data: New Jersey Privacy Law and the Halakha",
+ "In pursuance to the terms of the shtar borerut, this matter is to be resolved in accordance with Halakha, and the norms of minhag, custom, do not dictate that this issue be addressed through the lens of NJ law. Nonetheless, since the Nitva’s defense in part relies upon New Jersey law, we have chosen to address the state of NJ law regarding this matter.",
+ "In reply to Nitva’s contention that the retrieval of electronically stored information incident to divorce is a violation of both Halakha as well as secular law, we beg to differ.",
+ "The passage of Federal Wiretap Act and NJ Wiretap Act in 1968 recognized a right to privacy in communications by prohibiting recording conversations through wiretaps on phones or hidden microphones. In 1986, due to technological advances, Congress amended the Wiretap Act with the passage of the Electronic Communications and Privacy Act (ECPA), and a few years later New Jersey amended the NJ Wiretap Act with provisions identical to the ECPA, prohibiting intentional interception of electronic communications such as cell phone conversations and e-mails.",
+ "The leading case regarding the accessing of a spouse’s e-mail in New Jersey is White v. White. This case dealt with a husband filing a motion to suppress e-mails stored on a family computer hard drive which had been submitted to the court in order to buttress his wife’s divorce action alleging marital infidelity. Firstly, the court held that the language of the NJ Wiretap Act contains no explicit exemption for any wiretapping or any electronic communication by an aggrieved spouse. As noted by the court, it is already settled law in New Jersey that an inter-spousal exception does not exist. In fact, NJ is among the majority of states that does not provide for interspousal immunity in such a situation.",
+ "Consequently, the court addressed the legality of the wife’s interception of her spouse’s e-mails. Following in the footsteps of Steve Jackson Games, Inc. v. US Secret Service, the court held that since the e-mail was accessed while in electronic storage, i.e., saved in the husband’s file cabinet rather than acquired during electronic transmission, such interception does not run afoul of the NJ Wiretap Act. Messages read and saved are not within the scope of the NJ Wiretap Act. This understanding of federal and state legislation protected the right of a spouse to access e-mail stored on the hard drive of a family computer which could be accessed by all. Neither the system nor the files accessed were password protected. In other words, whether a spouse has a password-protected e-mail account will be the determinative factor in deciding whether access to e-mail stored on a hard drive of a family computer is unauthorized. When access is available to both spouses, as in White v. White, access is not considered to be without authorization. Other state jurisdictions have also endorsed this approach.",
+ "Finally, cyber-snooping may entail the invasion of privacy. Relying upon the seminal article authored by Dean Prosser, the authors of Section 652B of the Restatement (Second) of Torts recognize intrusion as grounds for invasion of privacy. To establish this tort there must have been an invasion of someone’s physical space. In accordance with the aforementioned section of the Restatement, a claim for an alleged intrusion obtains when the individual exhibited an “objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” Clearly, marriage does not deprive one of individual autonomy, but at the same time, each spouse does relinquish a certain degree of privacy. In White v. White, the court concludes that given that both spouses, albeit separated, had access to the computer (i.e., without password protection) and used it, there never existed an expectation of privacy. Hence, the wife’s access to her husband’s e-mails is not to be construed as an intrusion upon his privacy.",
+ "Based upon the foregoing, given that the Nitva consented to his wife’s access to the computer and given that her access was limited to the e-mails stored on the hard drive, therefore from a legal standpoint, we are at liberty of assessing the import of these e-mails in arriving at our conclusion over whether there are grounds for divorce or not.",
+ "Now, let us turn to how Halakha addresses these issues. Addressing whether there is exists a “marital home” exception to the halakhot of privacy, R. Shlomo Daichovsky states,",
+ "There are grounds that between a husband and wife one cannot speak about an “invasion of privacy,” since in the ktav tena’im [the agreement which memorializes the conditions of the engagement] that are prepared prior to the marriage it states: “They will refrain from any fraudulent conveyance or hiding anything from each other but they should live together with love and affection …” … This is a personal obligation to refrain from hiding or disclosing matters.",
+ "Years later, R. Daichovsky elucidates the parameters of this notion of marital privacy,",
+ "In respectful families, it occurs frequently that either the husband or the wife read letters which are designated for their spouse or listen to telephone conversations which are for the other spouse, without receiving permission. Also, it happens that a spouse inspects the personal items of his spouse … Ought we consider them transgressors of the law? In my opinion, in matters between a couple there is no concept of individual privacy, their common zone of privacy is one unit … in the sphere of emotions and asset acquisition. How can one speak of an invasion of a spouse’s privacy, when the essence of marriage is the expansion of personal privacy into common privacy? Even if the couple is quarreling, as long as the marital tie persists or as long as there is no beit din divorce judgment, there continues to exist collective privacy …",
+ "Recently, R. Avraham Meisels of Netanya Regional Beit Din reiterates R. Daichovsky’s line of argumentation.",
+ "Given that the prospective couple at the time of the wedding do not sign off on the tena’im and given that the tena’im is not drafted as a bona fide shtar, a halakhic-legal document, mutually obligating the couple to recognize a “marital exception” to the halakhic guidelines of individual privacy, the inclusion of such a phrase has been described as “shufra d’shtara” (lit. “the grace of an agreement”), a clause added for stylistic purposes, and has no halakhic import. Furthermore, the assumption of marital privacy is that the couple is living “together with love and affection.” However, clearly in cases of domestic instability, a spouse may very well have no reluctance to disclose her spouse’s secrets.",
+ "However, seemingly such a notion of a marital exclusion regarding privacy emerges from the halakhot of bailment. When an owner entrusts a shomer, i.e., a bailee, with an item to be guarded in the home of the bailee, it is assumed that the wife and sons, who are financially dependent upon the father, and other members of the household of the bailee, will be involved in guarding the object. There is a presumption that a family member who resides with the shomer is treated as an extension of the shomer and assumes the same responsibilities as the shomer. Similarly, we should conclude that all members of the household who reside in the same place may open the letter sent to the husband/father. Consequently, it is understandable to find that the rabbinic legislation which was passed in the eleventh century during the time of R. Gershon prohibiting an individual from opening up another’s letter only encompasses non-family members.",
+ "Such a position is seemingly open to challenge due to the difference between the matter of pikadon (i.e., bailment) and opening up another person’s letter without his permission. Whereas, the grounds for proscribing against the opening of a letter entail the commission of an issur (prohibition) such as theft, geneivat da’at (lit. “stealing of the mind”) or borrowing without consent, the case of pikadon entails expanding the scope of monetary liability of the shomer to apply to members of his household. But it seems that drawing an analogy between two such different halakhot as pikadon and opening up a friend’s letter is permissible. Though in certain places the Talmud states, “We don’t derive rulings in monetary matters from matters of issur,” nevertheless, in other cases the Talmud does draw such analogies. Consequently, there is a basis for the conclusion that Halakha recognizes spousal immunity in cases of privacy intrusions in the marital home akin to the extension of bailment responsibilities to all members of the family household.",
+ "Nonetheless, R. Asher ben Yehiel (known by the acronym “Rosh”), argues that one cannot assume that a husband desires to have his secrets disclosed to his wife by invoking the halakhot of pikadon. Stated differently, there is a zone of privacy even in the context of a husband and wife according to Rosh.",
+ "Subscribing to Rosh’s approach to marital privacy, are there grounds for a beit din to accept as evidence the e-mails that were opened up by the wife? If the conduct is prohibited, on what basis can a beit din accept evidence that was obtained improperly? In fact, R. Shlomo Goren prohibited any disclosure of contents of a letter without having the permission of the sender and receiver of the letter.",
+ "Notwithstanding this view, our position embodies the view well articulated many years ago by the renowned Israeli Supreme Court Justice Professor Silberg:",
+ "We see clearly that Jewish law does not establish a causal connection between the commission of an offense and the voiding of a civil contract … The violation of the law or morality is one thing, and the legal validity of the contract is another – to the extent that the fulfilling of the contract itself does not activate the offense … Precisely because Jewish law does not distinguish between law and morality, and that practically every performance of an obligation is at the same time a fulfillment of a religio-moral commandment – as in “the commandment” of repaying a debt of monetary obligation – the non-fulfillment of a contract entered into through a violation of law will only turn out to be an additional offense to supplement the original one committed by the transgressor.",
+ "In other words, the universe of Halakha encompasses varying matters; some of them are identified as “issur” and other as “mamon.” As R. Avraham Sherman aptly observes, there are numerous occasions in which committing an issur does not have halakhic consequences for a related monetary issue. For example, even though the execution of a sale is prohibited on Shabbat, should it transpire, the sale is valid, and therefore both the seller and buyer have to abide by the consequences of the sale. Similarly, though the Tova’at may have engaged in an issur by opening her husband’s e-mail, nevertheless the electronic communication is admissible in beit din in order to ascertain whether in fact there are grounds for the couple becoming divorced.",
+ "Addressing the nature of marriage, R. Malkiel Tenenbaum notes,",
+ "The matter of engagement and marriage between a husband and wife are no different than other kinyanim.",
+ "Alongside the matters of personal status – namely ishut, which prohibits each spouse from living with a third party – the essence of marriage deals with the civil obligations between spouses, such as spousal support and medical care. Lest one conclude that R. Daichovsky’s advocacy of the notion of marital privacy inexorably leads to the inability of a beit din to “pierce the veil” of a couple’s privacy in order to cull information for the determination of various personal status and halakhic-legal consequences of divorce, he concludes,",
+ "A beit din has been chosen to inquire into the problems of the marriage and draw its conclusions. The status of a beit din is akin to a doctor, and it is incumbent upon each party to present the problems relating to the marital life, even if in the process he exposes the inappropriate conduct of his spouse.",
+ "Notwithstanding the Rosh’s view about marital privacy, in our scenario, as we will demonstrate, no infringement of the husband’s privacy transpired due to the wife’s decision to read his e-mails. To arrive at this conclusion, we need to examine the prohibition of opening up somebody else’s letter. Our assumption is that R. Gershon’s legislation would have not been limited to the opening letters of others but would have also included our scenario, opening e-mail messages. Both entail a disclosure of information and therefore would be equally prohibited. As R. Sherman states,",
+ "Clearly, there is no principled difference between communication of matters between two people via a letter or transfer of information via a technological device … and all the reasons offered by the authorities to prohibit viewing a letter sent by one person to a friend apply …",
+ "The language of the legislation regarding opening another individual’s letter is the following:",
+ "One should refrain from reading a letter sent by a man to his friend without his knowledge and without his permission.",
+ "Seemingly, both the knowledge and permission of the sender are required for a third party to read the letter. In another text of the legislation, it states, “And if he disposed of it, one is permitted [to read it].”",
+ "That being said, let’s examine how Halakha treats the requirement of obtaining permission prior to reading somebody else’s letter. Regarding a letter that has been thrown out, R. Moshe ben Haviv concludes that a third party may read it in accordance with the provision of the legislation. Even though the legislation requires knowledge that the author consents to its reading, the fact that it has been disposed of by the recipient of the letter is sufficient to allow a third party to read it.",
+ "Applying these guidelines to our case: Electronic communication read and/or downloaded from a family computer that is not password protected are analogous a letter that was discarded by an individual who was unconcerned whether his message would be read or not. Hence, a wife’s foray into her husband’s computer that is not password protected is not to be construed as an invasion of her husband’s privacy. In addition, the fact that the husband was unaware that his wife read his personal e-mail would still not demonstrate an infringement of privacy. Once the computer is not password protected, there is an implicit assumption that the husband has waived his right to know whether in fact his e-mail communications have been opened.",
+ "Alternatively, the avoidance of the commission of issurim trumps privacy concerns. As R. Daichovsky writes,",
+ "The obligation of beit din is to prevent a man from being in a marriage of issur … and where we are dealing with a biblical prohibition, there is no deference of respect accorded to human dignity and we are not concerned about his privacy.",
+ "Without delving into the difference between human dignity and privacy, neither halakhic notion will override a negative commandment of the Torah. Applying this conclusion to our scenario of the alleged adultery, there are two issurim which impact upon the halakhic integrity of the marriage. Firstly, as we know, it is incumbent upon the husband to engage in onah, i.e., conjugal relations. As the Torah teaches us, “she’era kesuta ve-onatah lo yigra” – “her food, her clothing, and her conjugal rights, he shall not diminish.” The abstention from engaging in this mitzva generates a transgression of a negative precept. Should there be a fear that a husband will travel away from the marital home against his wife’s will and thereby result in an inability for the wife to live with him, a beit din will issue a restraining order against his right to travel. Given that the husband finds satisfaction from his illicit relationship, he may choose to abstain from fulfilling his onah obligations with his wife. Should the husband be deemed a moreid (lit. “rebellious”) due to his failure to comply with the dictates of the mitzva of onah, he is obligated to divorce her. Secondly, the actual commission of adultery entails the transgressing of an issur.",
+ "On the other hand, though there is no halakhic duty upon the wife to have conjugal relations with her husband, a wife is bound to her husband (meshu’abedet) as an incident of the establishment of the marriage, provided that he remains faithful to his wife. In our scenario, in light of her husband’s conduct she is repulsed by having to live with him, engendering mental anguish and stress leading to abstaining from engaging in conjugal relations. Her obligation ceases to exist in such a situation and she may separate from him, leave the marital home, and/or request a get. As one contemporary Posek notes,",
+ "On this condition she didn’t bind herself in marriage, since the duty of onah mandates a meeting of the minds between them.",
+ "In addition, the husband’s adultery has certain detrimental financial results to the marriage. As Aguda rules (cited authoritatively by",
+ "Rema), one of the grounds for divorce from an adulterer is based upon the fact that such conduct has a financial impact upon the marriage. The illicit relationship creates financial havoc as well as a breach of love and trust in the marriage. “An adulterer wastes money,” as assets that could have been expended for maintaining the domestic household are being earmarked for illicit conduct.",
+ "In short, the husband and woman who engage in an adulterous relationship destroy the family unit both halakhically, by the married couple’s mutual refusal to live with each other, as well as by unconsciously diverting funds that were destined for the husband’s family. Focusing upon the rationale for outlawing adultery, a beit din observes,",
+ "It is not because of the sin that was committed … but rather because of the destruction of marital life resulting from the husband’s behavior.",
+ "Applying these guidelines to our case, which deals with electronic communications read and/or downloaded from a family computer that is not password protected, clearly the exposure of an act of adultery that entails the potential breakup of family living serves as grounds for infringing upon the husband’s privacy. Even the potential loss of money trumps protecting the privacy of electronic communications. As R. Yosef Kolon points out, the mitzva of hashavat aveida, restoring lost property to its owner, trumps Rabbeinu Gershon’s edict against opening up somebody else’s communications. In other words, recovery of lost assets under any circumstances trumps privacy considerations.",
+ "Even if the case had dealt with a password-protected computer, similar conclusions would have been drawn. The halakhic legislation enacted during the life of R. Gershon was to facilitate the continued observance of Halakha rather than allow the committed to falter due to the commission of prohibitions. Moreover, should the wife’s reading of her husband’s e-mails be deemed an infringement of his privacy as well as inadmissible as evidence in beit din, this would prevent the beit din from being able to determine the facts on the ground, namely, whether in fact there is a basis for divorce. In concluding his essay, R. Spitz states,",
+ "There are instances where reading personal communications … is for the purpose of sustaining the Torah and establishing religion in place. In these situations and the like, we are allowed to look … at confidential materials, and the edict of R. Gershon is inapplicable.",
+ "Finally, as pointed out by Aguda, and subsequently by Rema and others, the primary reason for a wife’s right to divorce her husband is grounded in the potential medical danger to herself. There is the clear possibility that due to the husband’s illicit affairs, he has been exposed to the contraction of AIDS and other STDs and is therefore a potential danger to his spouse’s health and life. Lest one argue that the husband’s use of a condom eliminates the potential of contracting any of these STDs, condoms, like all contraceptives, are not 100% foolproof. Frequently, condom failure is due to human factors, such as the failure to use a condom consistently or incorrect use of the prophylactic. Sometimes, condoms stored in excessive heat for an extended period of time may also fail. Though the use of a condom is highly effective in preventing AIDS, and a study has shown that even among individuals with repeated sexual contact, 98–100% of those who used latex condoms correctly and consistently did not become infected, nevertheless, their use does not eliminate the risk entirely.",
+ "Based upon the foregoing, given that many times condom failure is due to human factors, the question is whether Halakha would sanction a wife’s exposure to the distinct possibility that she may contract AIDS. In addition, we should consider the mental stress the wife may experience as the result of the potential risk. The question is whether such concerns of being infected by STDs by one’s spouse and mental stress generated by such endangerment serve as grounds for dissolving a marriage.",
+ "Dealing with a case of a husband diagnosed with AIDS and whether the wife must continue to remain in the home, a Tel Aviv beit din rules,",
+ "In our times, regretfully the AIDS disease has spread and we cannot comfort the wife that she should continue to live with her husband and rely upon him that he will be vigilant in complying with proper protocol …",
+ "We know many men who have died from this disease even though they followed proper protocol and due to the fact that once they engaged in sex with no protection, they were infected by this disease …",
+ "Though this case deals with a husband who already is a victim of AIDS, the halakhic recognition of the human factor in condom failure, which increases the risk of infection to a wife, would equally apply to our scenario in which the husband has yet to contract HIV.",
+ "Even though the aforesaid study found that the contraction of AIDS is a minimal risk by those who use a condom, the possibility of condom failure still looms and therefore such a situation would be labeled a “safek sakana,” lit. “a doubt of danger,” and therefore under such circumstances, a wife’s right to divorce exists.",
+ "Moreover, should the husband have actually contracted HIV or any other STD and the wife agrees to continue living with him, there is no Halakha that states that should the wife suddenly experience emotional stress regarding the potential danger, that she cannot change her mind and demand a divorce.",
+ "In short, should a wife suspect that her husband is a womanizer, the concerns of potential or possible infection, as well the engendering of stress due to her spouse’s engagement in extramarital affairs, serves to justify invading her husband’s personal communications, even those found on a password protected computer.",
+ "In sum, reading e-mail communications of one’s spouse from a computer with password protection and discovering that one’s husband is an adulterer is not construed as an invasion of privacy. The potential medical endangerment to the wife’s life, coupled with the likelihood of family breakdown, both in terms of the absence of conjugal relations and possibly undermining the fiscal stability of the home, justify opening up a husband’s personal communications. Such grounds trump the legislation during the time of R. Gershom that one cannot open up a person’s letters without his permission. Moreover, as we have shown, given that we are dealing with a home computer without password protection, even in the absence of the aforesaid extenuating circumstances, a wife would be allowed to access her husband’s e-mails without his express permission.",
+ "2. The Nitva’s Admission of Adultery",
+ "Given the admissibility of an e-mail communication as evidence, seemingly we can corroborate the wife’s allegation that her husband is an adulterer, and therefore, there would arguably be grounds for having him deliver a get to her. In effect, the e-mails should be construed as the husband’s admission that he in fact committed the adultery.",
+ "This conclusion can be justified based upon the principle of “hoda’at ba’al din kemay’ah edim dami” (lit. “the admission [of liability] by a litigant is akin to one hundred witnesses”). However, one might protest that this rule applies only to monetary matters, but in dinei nefashot, criminal matters, we invoke the doctrine “one cannot render oneself a wicked person” as per the well-known ruling of Rambam,",
+ "It is a scriptural decree that the court shall not put a man to death … on his own admission … For it is possible that he was confused in mind when he made the confession …",
+ "We nevertheless contend that the rule of hoda’at ba’al din is applicable here. Self-incriminating statements are inadmissible regarding criminal matters; however an admission of liability regarding an adulterous relationship, which can destroy a family, is a dispute between two individuals in which admission is acceptable evidence.",
+ "In lieu of two witnesses testifying that the act of adultery transpired, an adulterer’s admission will suffice. Seemingly, such an admission occurred. In a recent case of the Be’er Sheva Regional Beit Din, the panel concluded that a husband’s placement of an ad on the internet looking for a wife, accompanied by his personal information along with his picture, would be admissible as evidence to prove that he was a womanizer. However, with all due respect, we disagree that such evidence may serve as an admission regarding his actions. There is no demonstrable proof that the husband placed these materials on the internet. In fact, the same lack of proof is equally applicable to our scenario. The “admission” was extrapolated from a series of e-mails, rather than having been heard from the adulterer himself. Addressing e-mails found on a cell phone a recent Netanya beit din decision states,",
+ "We cannot rely upon what is written there since the writing is electronic writing, and clearly we cannot identify who wrote these words. Unlike a handwritten note in which we can ascertain its veracity based upon witnesses’ corroboration or comparing it with other documents written by the same individual, in the case of an e-mail, absent the presence of witnesses at the time of writing, there is no possibility for ascertaining whether the husband wrote the e-mail, in particular given that the computer was not password protected.",
+ "3. The Evidentiary Standards to Corroborate the Nitva’s Adultery",
+ "In the absence of a husband’s admission, R. Alexander Zuslin concludes that we require “eidim, witnesses, who observed him with the woman in the manner of adulterers.”",
+ "The question is whether R. Zuslin’s ruling mandates that the actual fornication be observed. Based upon Hagahot Maimoniyot, which has been authoritatively cited by R. Feinstein, we find the following:",
+ "It is in particular with regard to the conjugal act that we construe that witnesses to a couple’s seclusion are considered witnesses that the couple engaged in sex. The reason is because we say, “Can fire touch straw and not ignite it?” Furthermore, he is not ashamed in her presence. Moreover, we cannot observe “the paint stick in the tube” as that would be abhorrent.",
+ "In effect, Hagahot Maimoniyot is suggesting two different justifications why witnesses are not required to observe the act itself. Firstly, there is an umdana, i.e., a logical inference based upon the facts that when individuals are isolated and secluded from the outside world, they are unable to control their drives, and the sex act will transpire. Secondly, even though there does not exist absolute certainty that the act occurred, nevertheless due to the difficulty of such an observation and the fact that it is an embarrassment, Halakha suffices with mere contact of body parts rather than mandating observation of the act itself.",
+ "However, in the absence of a husband’s admission or the actual observation of the act by eidim, normative Halakha, as codified by Rema, states, “If witnesses saw him with adulterers, some say that he can be coerced to give a get.”",
+ "In other words, whereas R. Zuslin requires actual testimony of the event and Hagahot Maimoniyot maintains that contact between bodies is required to label him an adulterer, some argue we can coerce him to give a get provided only that he was seen amongst other adulterers. This approach has been subscribed to by various Israeli battei din. This conclusion is not limited to situations in which the husband is in physical proximity to other adulterers. Even if he converses with women on the internet on websites that are pornographic, that will serve as grounds for labeling him an adulterer.",
+ "Furthermore, a Netanya beit din relied upon “kala de-lo pasik” (a persistent rumor), which in the eyes of the panel creates virtual certainty (umdena mukhahat) that the conduct has happened. The beit din is distinguishing between a firmly established rumor and a “rinnun be-alma” (a mere rumor), which does not serve as evidence that the alleged incident took place. R. Eliyahu ben Hayyim (known by the acronym: Ranah) suggests that there are two conditions that have to be obtained in order for the rumor to be labeled a “kala de-lo pasik.” First, the rumor must have been heard by many individuals and not have subsided. Second, one must ascertain the source of the rumor. If one finds that the initiator of the rumor is an enemy of the alleged abuser, the rumor will be discounted. Based upon the foregoing, in our case, we are dealing with a persistent rumor and we therefore have grounds to direct the husband to deliver a get to his wife.",
+ "In short, in the absence of a husband’s admission or the presence of a two eidim who observed the act, other forms of evidence, such as contact between the two bodies who allegedly are engaging in an illicit affair, the association of the husband with a circle of adulterers, and persistent rumors, all serve as evidentiary standards to determine whether the husband is in actuality an adulterer. As R. Moshe Sofer aptly notes,",
+ "It seems that the Torah did not require [two eidim] except when the beit din did not know without the two witnesses. But a matter that is clear to them without having to trust witnesses is as if they observed it on their own. And just like if the beit din witnessed the event themselves, the Halakha would be handed down without edut … Similarly, if at every stage the beit din knows clearly the matter without the trustworthiness of a witness, they are empowered to judge without testimony, and it is not subsumed under the category of “upon two witnesses.”",
+ "Given that the parties signed off on an arbitration agreement, this panel is empowered to resolve whether there are grounds for a divorce judgment based upon umdana.",
+ "Finally, in accordance with Rema and other Poskim, given that the adulterer has continued in his illicit affair, engages in conjugal relations with his wife on a sporadic basis, exposes his wife to the possibility of contracting STDs, and is contributing by his behavior to the breakdown of his family, we would seek rabbinical counsel, and had this case transpired in Eretz Yisrael we would have discussed the possibility of coercing the husband to deliver a get to his wife. However, even though the Nitva was not forewarned regarding the impropriety and consequences of his conduct, we will now obligate him to give a get.",
+ "4. The Mitzva of Onah and Spousal Rape",
+ "In Bereshit, we encounter a description of the first marriage between a man and a woman,",
+ "And therefore man shall leave his father and mother, cling to his wife and they will become one flesh.",
+ "A literal interpretation of this verse has led English and American jurists from the eighteenth century through the early twentieth century to subscribe to Blackstone’s legal depiction of marriage,",
+ "By marriage, the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover she performs everything … Upon this principle of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.",
+ "More recently, the idea was well captured by law professor Lawrence Friedman,",
+ "Essentially, husband and wife were one flesh; but the man was the owner of the flesh.",
+ "Accepting such a position has led Lord Matthew Hale to conclude that a husband cannot be guilty of spousal rape because,",
+ "By their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.",
+ "As recently as the year 2000, the majority of American states continue to invoke this marital exemption rule, which is rooted in the outdated notion that a wife is the property of her husband and preempts prosecuting a husband for marital rape.",
+ "Seemingly, the halakhic recognition of “ishto ke-gufo” (lit. “his wife is like himself”) embodies the same notion propounded by common law jurists. But in fact, a cursory glance of its use in the Talmud leads us to a different conclusion. Due to “ishto ke-gufo,” a husband lying near his wife may recite keriat shema and would not be distracted from the prayer, a wife of a priest cannot submit testimony regarding a blemish of a first-born animal, and a portion of damages awarded to a wife are payable to her husband. On the other hand, a wife may not lay her hands on an animal sacrifice as an agent on behalf of her husband even though “ishto ke-gufo.” In all these instances, the concept of “ishto ke-gufo” is invoked to demonstrate the psychological unity of the marriage rather than as an impingement of the wife’s legal rights, such as executing contracts or acquiring property.",
+ "In addressing the notion of marital privacy, R. Daichovsky elaborates on this psychological dimension as defining the marital ties:",
+ "In respectful families it occurs frequently that either the husband or the wife read letters that are designated for their spouse or listen to telephone conversations that are for the other spouse, without receiving permission. Also, it happens that a spouse inspects the personal items of his spouse … Ought we consider them transgressors of the law? In my opinion, in matters between a couple, there is no concept of individual privacy, their common zone of privacy is one unit … in the sphere of emotions and asset acquisition. How can one speak of an invasion of a spouse’s privacy, when the essence of marriage is the expansion of personal privacy into common privacy? Even if the couple is quarreling, as long as the marital tie persists or as long as there is no beit din divorce judgment, there continues to exist collective privacy.",
+ "Halakha does not deny legal capacity to a wife, as it does to a minor or mentally deficient individual. In fact, “ishto ke-gufo” has been invoked to demonstrate that a wife has legal capacity. For example, generally speaking, should an employer fail to pay his employee in a timely fashion, he violates a prohibition. If an employee is hired by a man’s wife, and does not receive his salary on time, the husband has violated the prohibition based on the rule of “ishto ke-gufo.” Likewise, although a father cannot redeem his first-born son (pidyon ha-ben) via an agent, nevertheless a husband may appoint his wife to perform this mitzva. Finally, regarding transactions executed by a wife relating to her husband’s properties, Ravan states,",
+ "All wives now are guardians of their husband’s properties and a guardian is an agent … therefore, her transactions are by virtue of her agency …",
+ "According to numerous Poskim who adopt Ravan’s position, there is a hazaka (presumption) that creates a wife’s implied agency, provided that the wife is engaging in a business-like undertaking.",
+ "This notion of a wife’s capacity and autonomy fully expresses itself in the context of conjugal relations, which is the matter of contention in this case. The essence of matrimony is the establishment of a personal tie, i.e., ishut, whereby each spouse is permitted to live with one another and simultaneously prohibited to live with a third party. Onah, as we mentioned earlier in our psak din, entails the engagement in conjugal relations, and its scope and parameters define the halakhic expression of ishut. Though there is no halakhic duty upon the wife to have conjugal relations with her husband, a wife is bound to him (meshu’abedet) as an incident of the establishment of the marriage.",
+ "Being meshu’abedet to her husband does not inexorably lead to the conclusion that a wife loses her autonomy and emotional integrity regarding the governance of her intimate relations. Generally speaking, there are halakhot governing the relationship between parties. Nevertheless, in accordance with normative Halakha, the rules relating to monetary matters may be subject to change by mutual agreement of the parties. Consequently, with regard to halakhot that deal with spousal support and maintenance, if the couple decides to modify the rules, such an agreement would be valid. However, according to many Poskim, regarding onah, which entails a non-financial matter, one is prohibited to modify its requirements. The inability to modify conditions in a non-financial matter stems either from the halakhic denial of an individual’s right to modify the mitzva of onah, or from a lack of gemirat da’at (firm resolve) on the part of the individual in stipulating a condition in variance with Halakha. One of the rationales offered for this conclusion is that releasing a husband from his duty will only lead to emotional distress for the wife, who will be unable to engage in conjugal relations.",
+ "However, in accordance with the Talmud Yerushalmi, there are other Poskim who argue that if the wife explicitly waives her right to conjugal relations, such a waiver would be valid. Once she requests a return to a life of intimacy, he becomes obligated again in the mitzva of onah. Moreover, even those authorities who prohibit a husband from contracting out of onah, nevertheless will permit him to abstain temporarily from onah when his wife permits him, such as while he is traveling and away from their home for an extended period of time. Here again, she may withdraw her permission at any time. On an ongoing basis, though a couple may engage in unnatural form of intercourse, a husband cannot force himself upon his wife against her wishes. As Poskim rule, a husband cannot compel conjugal relations, much less insist upon engaging in unnatural intercourse with his spouse. These halakhot are a reflection of the overarching need that intercourse must be consummated in joyful circumstances rather than in situations of wrath and tensions.",
+ "One of the unforeseeable and unintended consequences of spousal rape is that the wife may be physically injured by the husband’s conduct. The fact that onah is a mitzva does not create an exemption for injury. Hence, Hazon Ish contends that engagement in the mitzva of onah does not serve as a defense. Even if the husband unintentionally injured his wife due to losing his self-control, i.e., ones, a situation that can occur through engaging in conjugal relations in general and spousal rape in particular, we nevertheless have the rule “adam mu’ad le-olam,” a person is always deemed forewarned. Based on this reasoning, numerous Poskim argue that it is the husband’s responsibility to foresee the possibility of potential injury, and therefore if injury transpired, he is responsible.",
+ "The foregoing presentation demonstrates that the husband’s onah obligation under certain prescribed conditions can be circumscribed, and the wife’s shi’abud to conjugal relations does not translate into coerced cohabitation. In fact, as we have shown, a concern for the wife’s physical and emotional integrity expresses itself in the halakhot governing onah.",
+ "That said, if a wife wants to refrain from onah then she must demonstrate the reason(s) for her refusal to cohabit. Should her claim(s) be corroborated, the beit din will issue a judgment that the husband ought to deliver a get to his wife.",
+ "In advancing the claim that the husband is despicable, the Tova’at is in effect articulating the Talmudic plea of “ma’is alai” (“he is repulsive to me”). Such a claim finds resonance in Rambam’s ruling:",
+ "A wife who denies her husband conjugal relations is called a moredet (a rebellious wife). If upon being asked why she has rebelled, she responds that her husband has become repulsive to her and she cannot voluntarily live with him, the husband will be compelled to release her since she is not like a captive woman who has sexual relations with one whom she despises.",
+ "Regarding the list of cases of “compelled” divorce in the Mishnah and the Talmud as closed, and concerned that the wife may have “cast her eye on another man,” certain Poskim, notably Rabbeinu Tam and Rosh, reject a wife’s right to receive a get on the grounds of such a plea. Nevertheless, there are numerous Poskim who endorse Rambam’s position. After surveying the halakhic landscape regarding our issue, R. Avraham Gatinyo of nineteenth-century Salonika concludes,",
+ "There are more Rishonim (early authorities) who hold that we compel him to get divorced based upon the plea of “ma’is alai” than Rishonim who argue that we do not compel a divorce …",
+ "R. Gatinyo therefore subscribes to this view.",
+ "Finally, many Poskim will compel a get if the wife has a clear pretext (amatlaot berurot) that in fact her husband is “ma’is alai,” a repulsive husband due to his inappropriate behavior, contingent upon the fact that a beit din heard the couple’s claims and deemed that the facts dictate that there are grounds for compulsion, and provided that the civil law permits get compulsion.",
+ "Given that secular law in the United States does not empower a beit din to impose criminal sanctions upon a recalcitrant husband, we may abstain from addressing whether or not we should compel the husband to deliver a get to his wife. In other words, though under certain conditions the Mishnah, Talmud, and Poskim mandate kefiya be-shotim, physical coercion by using sticks or by any other means, against a recalcitrant husband and that it should be meted out until he states “I want to (give a get),” Poskim have ruled given that the secular authorities legally proscribe the use of force, such coercion regarding get compliance is halakhically prohibited. Implicit in their conclusion is that regarding criminal matters, Jews are duty-bound to comply with “the law of the land.” Based on the above, as well as contemporary Poskim and three recently issued beit din decisions handed down in Yerushalayim and Tel Aviv, respectively dealing with a wife who advanced a plea of “ma’is alai” based upon supporting proof regarding her spouse who was engaging in adultery and the fact that Nitva abandoned the marital home and continues to refuse to give his wife a get, we obligate the Nitva to give a get to the Tova’at.",
+ "Decision",
+ "1.Nitva is hereby obligated to give Tova’at a get.",
+ "2. Nitva is hereby obligated to pay Tova’at $50,000.",
+ "3. Should Tova’at receive her get in exchange for waiving the foresaid monetary award, a seder ha-get, an arrangement of a get, may be executed and the parties are then permitted to remarry.",
+ "Final Thoughts: The Awarding of Nezikin Claims against the Abuser",
+ "Given her husband’s ravishment and coercive tactics and the beit din’s ruling to obligate the giving of a get and the husband’s continued refusal to give one, had Tova’at argued for a monetary award for tza’ar (psychological pain) and for boshet (embarassment) due to Nitva’s improper conduct during conjugal relations, would there be grounds for such monetary relief?",
+ "A. The Authority of Beit din to Award a Nezikin Claim",
+ "Generally speaking, there is a requirement of having a beit din composed of mumhim (i.e., dayanim who have received classical ordination handed down from Moshe Rabbeinu) who are empowered to award kenasot (i.e., penalties) including but not limited to nezikin (damages such as recovery for bodily harm and medical care). However, in contemporary times in the absence of mumhim, the power of beit din stems in part from the parties’ willingness to accept the beit din’s authority, and therefore the awarding of kenasot is permissible. In effect, by the acceptance of the beit din’s authority via the execution of a kinyan (i.e., a symbolic act of undertaking the duty to abide by the psak of the beit din), the parties agree to obligate themselves to remit such monies should an award be rendered. This obligation is effective even though the parties do not explicitly state in the shtar borerut (arbitration agreement) that the dayanim may issue a decision regarding a nezikin claim that may entail a kenas. Secondly, since the parties empower the beit din to resolve their matters in accordance with peshara, the panel may resolve matters dealing with the halakhot of kenasot.",
+ "Alternatively, in accordance with a takanah (legislation) enacted by the Geonim and “the minhag of battei din” (the practice of rabbinical courts), a panel is empowered to employ their discretion in determining the amount of the monetary award and inform the batterer that this amount will appease the victim. This amount will be final even if the figure arrived at by the panel is unacceptable to the victim. As elucidated by the Poskim, the grounds for this award are to deter others in the community from emulating the batterer’s conduct.",
+ "In short, though the shtar borerut in our case does not state that nezikin matters will be resolved by this panel, nevertheless this panel is empowered to address these issues for one or more of the following reasons: (1) by accepting the panel’s authority via the signing of the shtar accompanied by a kinyan, a panel may address these matters; (2) since the beit din is authorized to implement a peshara, they have such empowerment to resolve these issues; and (3) in accordance with rabbinic legislation and “the minhag of battei din” such matters may be addressed.",
+ "B. Evidentiary Standard for Determining Spousal Rape",
+ "To award damages, the victim of the alleged abuse must demonstrate that the actual event(s) transpired. In the absence of a criminal conviction by a civil court, the admission of guilt by the perpetrator or two adult Jewish male witnesses attesting to the occurrence is adequate proof for beit din to render an award. In the absence of a husband’s admission or two male witnesses corroborating the event, in situations of assault where males were absent, the testimony of the victim of abuse, who generally speaking is ineligible to submit testimony, would be admissible. To state it differently, though a woman’s testimony is not viewed as edut (testimony) that a dayan is obliged to accept and follow, a dayan may nevertheless recognize that her words possess veracity and rely upon her words, i.e., ne’emanut.",
+ "The acceptability of a woman’s testimony is not limited to events that she observed as an outsider that transpired with other individuals, but extends equally to events in which she was a participant. Therefore, in the absence of any other claims leveled against her husband, if a wife claims that her husband is impotent, according to the majority of Poskim we may believe her, and we do not need to identify any other reason for the tensions and marital breakdown. In our scenario, seemingly we must question whether we can trust the veracity of the wife’s contention that her husband assaulted and raped her. However, since he admitted to his actions, we have no need to cast any doubt upon the veracity of her account.",
+ "Once said evidence has been submitted to the beit din, it is incumbent upon the dayanim to examine the information, in the same fashion that any other testimony is analyzed. For example, regarding instances of battery of a spouse for which it is unclear who provoked the behavior, the husband is not believed over his wife that his wife is the provocateur of the conduct, because women have a hezkat kashrut (presumption of credibility). Here again, in our case, the husband’s admission absolves beit din from the need for further inquiry.",
+ "C. A Nezikin Award for Boshet and Tza’ar",
+ "Tova’at is experiencing feelings of embarrassment regarding the incidents, as well as knowing that members of her community are aware of this occurrence. In a case in which an individual intended to embarrass another person, Halakha awards compensation for boshet (shame). The amount of the award will vary regarding the type of shaming. For example, slapping someone in the face will incur a higher award than yelling at someone.",
+ "In our scenario, the spousal rape did not generate any bodily injury, but there is nevertheless a concept of boshet devarim, lit. “shame in words,” which would encompass any feelings of embarrassment associated with this conduct. This may simply be emotional anguish unrelated to a third party’s awareness of the occurrence, or shame which comes from the cognizance of others regarding what transpired. In the Mishnah and Talmud, such an incident of shame does not have a fixed compensation rate. The standard suggested by Rashi, Shulhan Arukh, and Sma is that the estimate is determined according to the character and social status of the two parties, as well as the circumstances that generated the shame. As noted by various battei din, the award will be vary from case to case. And, in fact, in the last few hundred years, boshet devarim has been awarded.",
+ "Additionally, as we explained, although there is a mitzva of onah and a wife has a duty to be intimate with her husband, nevertheless forcible sexual relations are prohibited. Given that coerced cohabitation entails physical contact, one can advance a claim for tza’ar, physiological pain. Additionally, spousal rape, similar to any rape, is a traumatic experience engendering feeling of emotional stress that prevents the victim from engaging in sexual relations in the future.",
+ "Although the formal halakhot of nezikin do not recognize psychological pain, by dint of the parties’ voluntarily accepting the authority of the beit din, and given that the matter will be resolved in accordance with peshara and that it is the minhag of battei din to mete out damages to appease the victim, therefore there would have been grounds to award the Tova’at damages for physiological and psychological pain and boshet devarim.",
+ "D. Tova’at Waiver of Her Nezikin Award in Exchange for Receiving Her Get",
+ "In the event that a beit din obligated a husband to give a get and the husband’s continued refusal to give one, should the beit din have awarded her nezikin claim, had the Nitva argued he would be willing to deliver a get to his wife in exchange for his wife waiving her right to this monetary award, would such an exchange result in a get me’useh, a coerced get? Generally, a get must be given voluntarily by the husband, and the wife must accept it voluntarily, without any coercion. In our scenario, should the husband be coerced into delivering the get, the subsequent execution of the get creates a “get me’useh,” a situation that means that the get procedure is invalid and the couple remains married. The threshold question is the following: Does a husband’s willingness to deliver a get in exchange for waiving a monetary debt mandated by the beit din constitute financial coercion which would create a get me’useh?",
+ "According to numerous authorities, should monetary fines be leveled against a recalcitrant husband, any subsequent execution of a get will be unlawful.",
+ "Consequently, the advancement of a monetary claim to compensate for damages due to a husband’s recalcitrance in delivering a get is without halakhic foundation. If such an award is forthcoming, and the husband decides to give the get in exchange for being released from paying this debt, the subsequent execution of the get will create a get me’useh.",
+ "Despite the foregoing, there are authorities who do not consider monetary compulsion as ones, duress. However, there are Poskim who distinguish between different types of monetary and non-monetary types of coercion. Certain forms of duress will taint the subsequent execution of a get while others will be free from any compulsion. There is a type of damage claim that can be advanced by a divorcing wife in a beit din and it is labeled “kefiya ke-din” (legitimate coercion) and therefore avoids the strictures of a get me’useh. Numerous authorities have argued that certain kinds of pressure are not sufficiently coercive to result in an invalid divorce, provided that the coercive element emerges from circumstances unrelated to the divorce. For example, describing the following scenario, Rivash of fourteenth-century Spain and North Africa rules,",
+ "The case … involved a person cast into debtor’s prison for nonpayment of a debt. His wife’s relatives offered to satisfy the debt on his behalf and thereby obtain his release from prison on the condition that he divorce his wife.",
+ "Rivash finds no objection to execution of a get under such circumstances “for he was not seized in order to [compel] him to divorce [his wife] but on account of his debt; the get is not coerced but [the product] of free will.”",
+ "Since the husband was imprisoned for defaulting on a debt rather than as a means to coerce to give a get, his release in exchange for executing a get is not to be viewed as duress, and therefore the strictures of get me’useh are inapplicable. Numerous authorities such as Tashbetz, Ranah, Rema, R. Feinstein, and while serving on the Israel Rabbinical Court Rabbis Elyashiv, Daichovsky, and Shilo Rafael, endorsed the notion that coercion relating to another matter (kefiya le-davar aher) is permissible.",
+ "In short, these authorities concur with the view expressed hundreds of years ago by R. Moshe of Trani,",
+ "A get is only considered unlawfully enforced when [the husband] is coerced with regard to the divorce. But if he is coerced with regard to a different matter, and in order to free himself from that coercion he divorces his wife, [the get] is not regarded as unlawfully enforced.",
+ "In our scenario, we may invoke the concept of kefiya le-davar aher, i.e., advancing a nezikin claim unrelated to divorce, since the kefiya relates to spousal rape, an act unrelated to the divorce. A beit din is empowered to hand down a monetary award regarding emotional stress caused due to such conduct. As such, our case represents another example of kefiya le-davar aher, no different than that of Rivash’s debt repayment, and it is therefore permissible and avoids the strictures of a get me’useh.",
+ "Finally, even if we were not dealing with an instance of kefiya le-davar aher, in various Israeli piskei din and teshuvot “obligating a divorce,” R. Elyashiv and others permit a husband whose wife does wish to accept a get to appease his recalcitrant wife by offering money in exchange for her accepting a get; the ensuing divorce is not deemed to be unlawfully coerced. Similarly, if the wife absconded with her recalcitrant husband’s assets and will release them only upon receiving her get, such a financial inducement is permissible. Hence, in our scenario, a wife’s waiver of her monetary award in exchange for her get would have been permissible."
+ ],
+ "b) \"A Dead Marriage\" and its Halakhic Aftermath": [
+ "B. “A Dead Marriage” and its Halakhic Aftermath",
+ "Facts",
+ "In Hassidic circles, shiddukhin is a system of matchmaking in which Torah-observant singles are introduced to one another for the purpose of marriage. Whereas in other Orthodox communities, singles may meet in different ways, in Hassidic circles, a shiddukh usually begins with a recommendation from a family member or friend.",
+ "Whereas in other circles, dating usually takes place in a public setting such as a restaurant, an airport, or a social/educational event, in Hassidic communities, once a match has been proposed, the prospective partners proceed to a “bashow,” meaning a sit-in. In a conventional bashow, the young man is accompanied by his parents to see the young woman in her house to see if the prospective couple is compatible. Both sets of parents converse with each other, and eventually they walk into another room, leaving the man and woman to speak privately. Some may use the opportunity to ask relevant questions, while others want to gain a sense of whether they like each other, relying on the information that they received from the shadkhan. As the couple sees more of each other and the couple is satisfied that the proposed marriage will be successful, their decision is communicated to the shadkhan, and the engagement is announced, followed by marriage.",
+ "We are dealing here with a young couple that met each other in three bashows, and subsequently got engaged and married. In this particular circumstance, there was no shadkhan, but upon the initiative of the two families of the couple, the ensuing courting, engagement, and eventual marriage took place. After being married for four years, the couple had a baby girl. Two years later, they decided to get divorced. During their marriage, the couple had been residing in northern New Jersey in a non-Hassidic community where the Tove’a was employed as a financial analyst and the Nitva’at was a social worker, while simultaneously managing the household and engaging in child rearing, cooking, and washing.",
+ "For two years the couple had not been engaging in conjugal relations, and a year ago the husband moved out of the marital home.",
+ "Tove’a’s Claims",
+ "Tove’a argues that the Nitva’at was the first to request a get and subsequently, he agreed that he did not want to remain with her. However, he refuses to deliver a get to her. He admitted that he was not interested in having children.",
+ "Given that the Nitva’at asked for the get, she is not entitled to receive the value of her ketuba. Additionally, given that the Tove’a’s father-in-law gave the rent money as a gift to the couple, the Tove’a is exempt from repaying this money to his father-in-law. Finally, the Nitva’at has withdrawn all the funds from their joint account, funds that have not been expended for the domestic household, and therefore the Tove’a is demanding recovery of half the funds.",
+ "Tove’a is willing to pay child support, but he argues that the calculation of payment should be based upon the customary practice in the Hassidic community rather than civil law. Moreover, though Tove’a agrees that the Nitva’at should be the custodial parent, Tove’a contends that the panel should decline her request for child relocation because the Nitva’at’s “need” to move is really the product of her own lifestyle choice, and that consequently, he should not be the parent who is “punished” with the loss of proximity and weekday contact. Moreover, her desire to relocate is prompted by the wish to distance herself from her ex-husband, and she seeks to escape the perceived humiliation of remaining in “the father’s community.” In reply to Nitva’at’s contention that she requires emotional support from her parents and therefore the move is required, Tove’a argues his wife’s two sisters and some friends live in New Jersey and/or in close proximity to her, who would be able to provide assistance and emotional support.",
+ "Should the beit din determine that the Tove’a is obligated to give a get to the Nitva’at, Tove’a wants the financial claims to be resolved prior to giving her the get.",
+ "Nitva’at’s Claims",
+ "From the onset of the marriage, Nitva’at never felt emotionally attached to the Tove’a. Though the couple met each other at bashows, in actuality there was never any emotional and physical attraction between them. It was a marriage orchestrated by their respective families. In fact, the Nitva’at contends that the Tove’a never wanted to have children and the child that they had was a concession to the Nitva’at. On numerous occasions, Tove’a refused to have relations with the Nitva’at. In the final analysis, Tove’a was upset that they were married, and therefore he ought to give her a get and pay her the value of her ketuba. In reply to Tove’a’s willingness to pay $250 a month for support for one child, allegedly the practice in Hassidic communities, Nitva’at is requesting that child support payments be calculated based upon NJ child support standards.",
+ "Nitva’at is petitioning this panel to allow her to relocate from New Jersey to Chicago, Illinois where her parents live. The move is necessary to accommodate a new job being offered to her in social work in Chicago, as well to provide her with parental assistance and support in raising her daughter. Such a move would be in the child’s best interests.",
+ "Moreover, Nitva’at claims that the $80,000 that she withdrew from their joint account represents her salary for the last six years working as a secretary, and argues based on “kim li,” i.e., that she adopts the opinion of the decisor who would support her claim that the salary belongs to her. Alternatively, she argues that since a year prior to the divorce proceedings Tove’a withdrew $200,000 from their joint account and Tove’a can only demonstrate that $50,000 was used in order to pay domestic expenses, and therefore, she is entitled to $75,000, which represents fifty percent of the remaining funds, as a joint account holder. Moreover, though formally speaking Nitva’at admits that she was the first to request the get, it is clear that the above withdrawal indicates that for a year prior to their decision to appear in front of this panel, the Tove’a was already contemplating divorce. In fact, at that time, Tove’a consulted with a rabbi regarding end-of-marriage matters.",
+ "Finally, Nitva’at is requesting $100,000, which represents the money lent to the couple by the Nitva’at��s father in order to pay for the first five years of rent. In reply to Tove’a’s contention that the aforesaid monies were remitted as a gift, Nitva’at argues that her father never said that these funds were a gift, and therefore should be viewed as a loan that must be repaid.",
+ "Should beit din determine that she has a right to receive a get, Nitva’at demands that it should be executed prior to the beit din’s resolution of the outstanding financial claims.",
+ "Discussion",
+ "1. Husband’s Obligation to Deliver a Get",
+ "Generally, the right of a wife to demand a divorce is based upon the following grounds: (1) physical defects of her spouse, such as impotence or a contagious disease such as AIDS; and (2) conduct of her husband, such as his unwillingness to support her or live with her. Halakha recognizes similar grounds for a husband to demand that his wife accept the get from him.",
+ "However, Rabbeinu Yeruham introduces a different ground for divorce. He rules the following:",
+ "And my teacher Avraham ben Ashmael writes that it seems to him that a wife who says she does not find her husband pleasing and that he should give her a get and ketuba, and the husband says and that he likewise does not find her pleasing, but does not want to give a get, it is logical that we do not consider her a rebellious wife to lose her ketuba and nedunya (dowry). Rather, we wait twelve months regarding the get, because possibly she will reconcile. After the year, we force him to divorce her and she loses her tosefet (tosefet ketuba) and everything she received from him, because we assume that he didn’t let her take (his property) and then leave (the marriage).",
+ "According to one understanding, R. Yeruham is extending the case of ma’is alai to a new situation. In the conventional situation of ma’is alai, if a husband refuses to engage in conjugal relations with his wife, the wife can say “I find him repulsive” (“ma’is alai”), and in accordance with some Poskim we coerce him to deliver a get. R. Yeruham argues that even if she states “ma’is alai and I don’t want to live with him,” after a year we coerce him to deliver a get lest she become an agunah. Another perspective on R. Yeruham’s position is offered by the Netivot ha-Mishpat who contends that according to R. Yeruham (as well as his teacher, Rashba), given that each spouse is a “moreid” (lit. “rebellious” – unwilling to engage in conjugal relations), the wife loses only her tosefet ketuba, and after a year we coerce the husband to deliver a get.",
+ "According to an alternative interpretation, we are dealing with a case in which there are no mutual obligations between the spouses, since one cannot speak of a sense of duty devolving upon one side if the other side equally refuses to undertake an obligation. For this reason, the issue of failing to engage in conjugal relations is a non-issue. The matter of merida (rebelliousness) emerges within the context of ongoing and functional marriage when one party is derelict in his or her duty in living with his spouse. In this case, refraining from conjugal relations is due to mutual incompatability and/or hatred. One cannot view the husband as a moreid when the wife has no interest in her marriage and therefore refrains from living with her husband. And similarly, one cannot view the wife as a moredet when the husband has no interest in living with her. The meaning of a “moredet” is a wife who is rebellious toward her husband who desires to live with her. And in fact, there is a procedure dating back to Geonic times that mandates synagogue announcements as a means to indirectly compel a wife to return to her spouse. In short, if the husband doesn’t want to remain married, but nevertheless wants his wife to be an agunah, R. Yeruham rules that we compel him to give her a get.",
+ "On the other hand, if the wife has no interest in remaining married and the husband wants to remain married (and there are no grounds for obligating a get), the wife cannot claim she is an agunah. On the contrary, the wife is creating her “igun” situation, and therefore we do not obligate the husband to deliver a get.",
+ "In our situation, adopting the alternative understanding of of R. Yeruham, since each spouse does not want to remain married and have been separated for a year, we are dealing with a situation of igun. Even if the wife would have been interested in remaining married, attempts at promoting shalom bayit (lit. “domestic tranquility”), matrimonial reconciliation, would be impossible since the husband no longer wants the marriage to work and succeed. In our case, given that the Tove’a wants to neither engage in conjugal relations nor have children, the Nitva’at has no desire to remain married. In accordance with R. Yeruham’s position, one would therefore compel the husband to divorce her. This case is no different than an instance of a wife who commits adultery – the halakhic result is that she cannot live with her spouse. In such a situation, despite her improper behavior, which undermined the marriage, we do not sanction recalcitrance regarding the delivery of a get. On the contrary, we coerce the husband to give a get, as in R. Yeruham’s case.",
+ "R. Yeruham’s psak also implies that the issuance of such a divorce judgment will occur regardless of which spouse desired to leave the marriage. Had the psak been contingent on the fact that the husband wanted to leave the marriage first, R. Yeruham would have said so. Argumentum ex silentio supports our conclusion. Consequently, in R. Yeruham’s situation, the wife was the first one who wanted to get divorced, while the husband wanted to stay married. Yet, the husband’s refusal to engage in conjugal relations and have children derives from his personal determination that the marriage is “dead” rather than his wife’s demand to receive her get, and therefore there are grounds for coercing a husband to deliver a get to his wife. And even if the wife suddenly has a change of heart and wants to remain married, the husband has no interest in shalom bayit. Consequently, to prevent an igun situation, after a year R. Yeruham would coerce the husband to deliver a get to his wife.",
+ "In the wake of “a dead marriage,” each side having no interest in the continuance of the marital ties, R. Yeruham’s position is to avoid igun, and therefore, dayanim in the United States would obligate the husband to deliver a get to his wife. Whereas in many instances, the grounds for divorce are based upon the conduct and/or physical defects of a spouse, here a get is to be given in order to avoid igun.",
+ "As noted already by others, there are no Poskim who explicitly disagree with R. Yeruham’s position regarding the husband’s obligation to deliver a get to his wife. On the other hand, the fact that his view is not memorialized in Shulhan Arukh and Rema has been understood to mean that Poskim do not ascribe to his position. And as such, R. Rosenthal, a sitting dayan on Netanya’s Regional Beit Din, discounted R. Yeruham’s position. Nonetheless, R. H. Shlomo Sha’anan, a dayan who served on the Tel Aviv Beit Din and Supreme Beit Din, has adduced various proofs that both Shulhan Arukh and Rema, as well as others, implicitly have adopted his posture. Numerous battei din in contemporary times have endorsed his view.",
+ "Addressing this situation in which shalom bayit has not existed for years and there is no real possibility for reconciliation, R. Yeruham concludes that the wife is entitled to the value of her ketuba. A brief review here of the various rules dealing with recovery of ketuba monies will serve to explain the cogency of his ruling. There are three basic rules governing whether such entitlement exists: (1) If the husband demands the divorce and the wife wants to remain married, then she is entitled to the value of the ketuba upon divorce. (2) If the wife did not demand a divorce and was prepared to remain married despite quarreling, and the ensuing divorce was due to the husband’s request, the monies of ketuba are remitted to her. (3) If the wife demands the divorce without any grounds to obligate the husband in the divorce, she is not entitled to the ketuba even if the get was arranged with the husband’s consent. In other words, if the husband demonstrates that there are grounds to divorce her, she is not entitled to her ketuba. Based upon the foregoing, if the couple wants to mutually end their marriage, regardless of who may have requested the divorce initially, given that there is an outstanding obligation undertaken by the husband at the inception of marriage, according to R. Yeruham she is therefore entitled to her ketuba.",
+ "2. The Recovery of Tosefet Ketuba according to R. Yeruham",
+ "The standard amount of money in the ketuba is 200 zuz for a first marriage. Additionally, in many instances, a husband obligates himself to add to the value of the standard ketuba amount, and this is called tosefet ketuba. In Ashkenazic ketubot, the standard amount is 200 zekukim of pure silver. Usually one hundred zuzim are earmarked for the ikar ketuba and another one hundred zuzim are earmarked for tosefet ketuba.",
+ "R. Yeruham holds that with regard to delivering a get, the only relevant factor is the problem of igun. Therefore, regardless of whether the wife is at fault, when neither party is interested in continuing the marriage, the husband must give a get. However, concerning whether a wife receives her tosefet ketuba R. Yeruham’s informs us,",
+ "Upon the assumption that she would take it and leave him, he would not have given it to her.",
+ "To state it differently, regarding tosefet ketuba, we focus on the husband’s intent at the time that he undertook the obligation to pay tosefet ketuba to his prospective spouse, namely, did he intend to pay her tosefet ketuba upon divorce? Whereas, ikar ketuba is a debt which is ex lege, created at the inception of marriage, and paid off at the time of divorce, tosefet ketuba is dependent upon the intent of the husband who undertook the obligation prior to nissuin (marriage) during the time of the writing of the ketuba.",
+ "One proposed yardstick to gauge whether the wife is entitled to receive said monies is to assess who is responsible for the fact (eventually acknowledged mutually) that the marriage is dead. One approach, taken by R. Eliezer Goldschmidt, a dayan who served on various battei din of Eretz Yisrael’s Chief Rabbinate, contends that if a husband refuses to support his wife or engages in illicit affairs, he is responsible for the downfall of the marriage and therefore, the husband is obligated to remit tosefet ketuba. On the other hand, should divorce ensue because of the wife’s demands and despite the husband’s desire to continue being married, the husband is exempt from paying such monies. The rationale for this exemption is that he voluntarily obligated himself to pay these monies provided that she is willing to be married to him. Since she does not want to remain married, he no longer is obligated to pay her these monies.",
+ "However, if he is responsible for the “dead marriage” rather than his spouse, he remains obligated to pay tosefet ketuba (as well as ikar ketuba). For example, if the husband is either incapable of finding a livelihood or is sexually impotent, even though these situations are characterized halakhically as “ones” (duress), he is exempt to remit such monies. On the other hand, if the husband is responsible for the divorce, for example if he fails in finding a job to support his wife, he is obligated in tosefet ketuba. Eretz Yisrael’s dayanim, Rabbis Elyashiv, Horowitz, Ben Shimon, Sheinfeld, Sha’anan, Probar, and Ushinski, have endorsed this approach.",
+ "Based upon the foregoing, given that the Tove’a refuses to engage in onah (the mitzva of engaging in conjugal relations periodically) and does not desire children, the marriage has de facto dissolved, a situation created by his personal choice, and therefore, he is obligated to pay tosefet ketuba. In accordance with R. Yeruham, she is “bolting the marriage” because of what her husband voluntarily did or refrained from doing, and therefore she is entitled to tosefet ketuba.",
+ "3. A Husband’s Justifiable Claim",
+ "Generally, upon a beit din’s determination that a get ought to be executed, the question arises whether the seder ha-get (the arrangement involved in the giving of the get by the husband to the wife) should be performed prior to the convening of a beit din or whether the panel should first resolve the outstanding end-of-marriage issues which are in dispute. This question is matter of controversy and in the NY metropolitan area, the policy of the majority of battei din is to address the parenting and financial issues relating to the marriage prior to the seder ha-get.",
+ "In our scenario, the beit din panel had issued a judgment that the husband is obligated to deliver a get to his wife. Given that the husband is obligated to give a get in order to avoid an igun situation, the question is: Can the Tove’a insist that the beit din panel address and resolve his financial claims prior to the actual delivery of a get? Seemingly, since his wife is refusing to accept her husband’s stance regarding these claims, she is in effect creating an igun situation, and the obligation to give a get disappears. Consequently, these financial matters may be resolved prior to the issuance of a get. Given that the the wife’s claims are only being advanced due to “the dead marriage,” which in retrospect is the result of the husband’s behavior, therefore it seems that most Poskim conclude that the get ought to be given up front, and any outstanding claims should be resolved in beit din afterwards.",
+ "Nevertheless, the minority view of Maharashdam, which validates a husband’s right to stipulate that his claims must be resolved prior to giving a get, has found support in some piskei din of Eretz Yisrael’s Chief Rabbinate. The scope of his ruling has been open to wide and varying interpretations. Some authorities have argued that his position embraces a husband’s right to stipulate claims that are unrelated to the get. Others have understood his position more narrowly, as referring to conditions related to the get itself. Hence, conditioning the delivery of a get upon first resolving matters of child support and parenting arrangements would be unjustified. Many have contended that only conditions which can be easily fulfilled by the wife fall under the ambit of Maharashdam’s psak. For example, if a wife could afford to pay X amount of money in exchange for the get, such a condition would be valid. In other words, whether a wife may easily comply with a condition is determined based upon “her social status, her personality, and her lifestyle,” Consequently, one cannot expect that a secular Jewess who was educated with the expectation that civil law would determine her marital issues would easily comply with her husband’s request to have these claims resolved by a beit din. Likewise, one cannot expect an Orthodox Jewish woman to heed the demands of her husband to have beit din resolve their claims when he is someone who would ordinarily resolve his disputes in a secular court, and has no regard for beit din. In addition, a husband’s demand that his wife relocate to another city would be an unjustified condition. Others understood Maharashdam’s position to allow for unjustifiable claims contrary to Halakha to be resolved in beit din prior to the issuance of a get. Some decisors limit the validity of non-halakhic claims to those that can easily be resolved and fulfilled. Others understood Maharashdam’s posture to be limited to halakhically justifiable claims only.",
+ "In our case, since the husband’s monetary claim regarding the funds from the joint account is “a condition which is easily to comply with,” and there is a risk that failing to accede to his request may lead him to become intransigent regarding the get, the Tove’a does not have to deliver the get prior to this matter being resolved by the panel.",
+ "4. Standard for Calculating Mezonot ha-Yalda (Daughter’s Support): In Accordance with the Child’s Social Standing, His Needs, or Minhag ha-Medina?",
+ "As we know, a wife’s maintenance is assessed based upon her husband’s financial position and social status, provided that it is not lower than the standard of living she was accustomed to when living with her parents. If the husband’s standard of living is lower, he is obligated to support her according to the higher standard. In fact, Pnei Moshe notes that a woman’s standard of living should be maintained in accordance with the standard of living in her father’s home. However, others argue that if the husband cannot afford his father-in-law’s standard of living, he is not obligated to provide it.",
+ "In accordance with Talmud Bavli, a man must provide for his daughter in accordance with “kevodo,” i.e., his level of dignity. In other words, if the father is wealthy, then the standard will be that of a wealthy individual, and if he is poor, it will be the standard of a poor person. As R. Nahum Gertler, a dayan serving on a Rehovot beit din, aptly noted, the majority of Rishonim subscribed to this approach, a view which resonates amongst contemporary Poskim.",
+ "Nonetheless, implicitly relying upon a passage in Talmud Yerushalmi, as well as Rambam and Shulhan Arukh’s rulings, most Aharonim contend that a daughter’s level of support is calculated according to her needs, not her father’s means. Elaborating upon the standard, R. Yehoshua Maman observes,",
+ "One is obliged to support them according to their needs … and their social station and how they were customarily supported prior to the divorce.",
+ "R. Refael Moshe Elbaz of twentieth-century Yerushalayim writes,",
+ "Necessities are not measured by what is necessary in another city, but what is sufficient for them accordance to the practice of their city.",
+ "In other words, upon divorce, the basic needs of child support are defined by the local practice, or by what the woman was accustomed to receive as basic needs, rather than by any additional support provided by her father due to his financial means.",
+ "There is a third yardstick for calculating a daughter’s support, a standard that was established at the inception of the marriage of the now-divorcing couple. According to certain Poskim, a father’s duty of child support is grounded in his obligation to support his wife. This duty is recorded in the ketuba, in which the husband obligates himself to provide for his family – “ana eflach ve’okir.” Given that mezonot yeladim (child support) is one of the tena’im (conditions) in the ketuba, its calculation is determined in the same fashion as some of the other tena’im of the ketuba. As already noted by Rambam, Shulhan Arukh, and Gra, matters relating to the ketuba are determined in light of national minhag, which has not been approved by rabbis, provided that the minhag is widespread throughout the country. The legal guidelines regarding the standard of child support, a condition of the ketuba, are based upon the minhag ha-medina, similar to other issues that are governed by the prevailing practice. Even if Jews are unaware of the minhag and/or fail to practice it, Halakha obligates them to comply with it.",
+ "Based upon the foregoing presentation, it is our opinion that minhag ha-medina, namely the law governing child support in the state of New Jersey where the couple resides, ought to be applied.",
+ "5. Relocation of Child after Divorce",
+ "Upon divorce, should there be any differences regarding with which parent a child ought to live, Halakha argues that custody contests ought to be resolved in accordance with tovat hayeled, namely, the child’s best interests.",
+ "Such considerations should equally be factored into whether to approve a custodial parent’s request for relocation. As we know, the divorce of parents undermines the child’s sense of attachment and stability. Optimally, a child would want his divorcing parents to be amicable, communicative with each other and live close enough to each other. When a custodial parent seeks to move to a different geographical location, the best possible post-divorce situation for the child is threatened.",
+ "Given that following divorce, as few changes as possible should be made in the life of a child, in arriving at “a best interests” determination, a beit din must consider the following factors: each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the parents, the impact of the move on the quality of the child’s future contact with the noncustodial parent, and whether the child’s life may be enhanced economically, emotionally, and educationally by the relocation.",
+ "Halakhically, in the wake of a custody battle, a daughter remains with her mother in order to be instructed in the ways of tzniut, modesty, and midot, halakhic-moral propriety. Given that this is a hazakah, a presumption that may be rebutted if the facts dictate that child placement with the mother may undermine the child’s best interests, how does Halakha address the case of a mother who wants to relocate to another geographical region, which will prevent the father from regularly spending time with his daughter?",
+ "In reply to this question, R. Yosef ben Lev contends that the daughter may move to another country in order to be with her mother. Firstly, when the Talmud states, “The daughter is forever with the mother,” it means barring certain exceptions, a daughter always remains with her mother. For example, an older daughter’s welfare does not mean that she must be with a mother who is licentious or a prostitute.",
+ "Strongly disagreeing with this position, R. Shmuel de Medina contends that should the move expose a daughter to interactions with people of immoral character, then such relocation is impermissible. In other words, relocation must serve the child’s best interests. Since the child’s welfare should be a priority in any relocation decision, the larger family unit cannot be neglected. The goal is to preserve what is sound and successful. Hence, if during the marriage, there existed a healthy relationship between the noncustodial parent and the child, absent any extenuating circumstances, the ties should continue upon divorce of the parents. Consequently, optimally the postdivorce family is “binuclear,” where a child is living in two households. As R. Shmuel de Medina exclaims,",
+ "Is it possible that a man has only one son … who lives with him and his being is emotionally tied to his son and when he sees that the young man no longer is here, he dies and his father is anguished … one cannot fathom this …",
+ "In other words, relocation must be justified based on the child’s best interests, which entails assessing whether the child’s detachment from his noncustodial parent may psychologically impact upon him and leave long-term effects upon his personality development.",
+ "Following in the footsteps of Rabbis S. de Medina and D. ben Zimra, numerous Poskim will evaluate child relocation through the lens of the child’s best interests. Such a position flows inexorably from the notion that visitation rights for a noncustodial parent who lives in proximity to the custodial parent is granted based upon a determination that such privileges are in the child’s best interests, regardless whether we are dealing with a son or a daughter.",
+ "Based upon the parties’ argument, this panel finds that relocation would undermine the halakhic recognition of the binuclear family. Nitva’at’s contention that a job opportunity and parental support would lend credence to her petition for the move lacks foundation. Unlike other professions, there are numerous employment opportunities in the area of social work in northern New Jersey. Moreover, the Nitva’at has the emotional support of her siblings who reside in close proximity. The impact on the quantity and quality of the child’s future contact with the noncustodial parent must be provided for, even at the expense of the redeeming value of the Nitva’at’s parental emotional support her in the post-divorce situation. Consequently, we decline the Nitva’at’s request to relocate to another state that is far away from the daughter’s father.",
+ "6. A Father-in-Law’s Claim to Recover Support Monies Provided to his Children: Are the Monies a Loan or a Gift?",
+ "For the first three years of their marriage, Nitva’at’s father-in-law paid the couple’s rent. In effect, although halakhically a husband is obligated to support his wife including providing “a roof over her head,” here the wife’s father was paying his son-in-law’s outstanding obligation. Realizing that the Tove’a was not earning sufficient money to cover the rent, the father-in-law decided to pay the rent. At the time as well as later, there was no mention that said monies were a gift to the couple. Consequently, on behalf of her father, Nitva’at argues that her father is demanding that said monies be returned to him. Nitva’at contends that even if one would view these monies as gifts, such distributions would have not been forthcoming had Nitva’at’s father, the donor, realized that the couple would eventually become divorced. Buttressing her posture, she invokes Mordekhai’s ruling that deals with a testator who earmarked a portion of his estate to tzedaka. Subsequently, the testator’s relatives lost their assets and third parties claimed that the earmarked assets for tzedaka should be given to the testator’s relatives. Given that one can invoke the umdana (inferential fact finding) that had the testator known that his relatives would be in need of funds, he would not have designated said monies for tzedaka, Mordekhai rules that the monies ought to be distributed to his needy relatives. A similar conclusion was reached by Maharam of Lublin.",
+ "Countering the Nitva’at, Tove’a unravels the logical weakness of opposing party’s view. If one accepts Nitva’at’s argument, then in any situation in which relations deteriorate between a donor and recipient, the gift should be returned, because had the donor known that relations would sour, he would never have gifted the item to the recipient. Comparing this case to that discussed by R. Yom Tov Zahalon, Tove’a argues that this is impossible:",
+ "If a sefer Torah was donated to a synagogue, and subsequently relations soured [between synagogue and the donor], can one allow him to take the Torah and sell it based upon an umdana!",
+ "Consequently, Tove’a contends that although the relations have radically changed between the father-in-law and the Tove’a, one cannot therefore utilize an umdana regarding a future development as grounds to recover these assets. To ascertain whether Tove’a must repay the rent, we must look at the time that the gift was given, rather than at what would occur in the future. When the gift was given there were harmonious relations between the couple, and therefore the gifting did not entail any contingencies. Had the father-in-law stipulated that his giving of the gift was predicated upon continuing marital ties between the couple, then there would be grounds for rescinding the gift. However, in our scenario, no such stipulation was ever advanced.",
+ "In our opinion, Tove’a’s arguments demonstrate the correct understanding of the contours of an umdana. As Tosefta and Talmud observe, if a man’s son travels abroad and the father hears that his son passed away and therefore gives away his assets to a third party, if his son subsequently appears, the gifting is null and void. Clearly, the gift was predicated upon a fact that never transpired, i.e., his son’s death. In our situation, however, we cannot revoke the father-in-law’s gift by invoking an umdana because the gift was not based on an error. At the time of the gift, the couple was actually married. The fact that in the future, circumstances would change and the couple would divorce, does not serve as a grounds for invoking an umdana.",
+ "The remaining issue is whether the rent money ought to be returned to the father-in-law due to the fact that one cannot enrich oneself at the expense of others.",
+ "If an individual supports his friend, his friend is obliged to compensate him because he derived benefit from his friend’s assets. The requirement to provide compensation is not limited to sustaining somebody, but equally extends to any services provided to another individual, even in the absence of an oral or written request for these services. In rabbinic nomenclature, conferring benefit for another is known as “yoreid le-nikhsei haveiro,” or “one who goes down to another person’s field.” Compensation in such situations is not limited to friends or strangers, but applies equally to relatives. Though some Poskim demur, and therefore some decisors conclude that it is a legal doubt, i.e., safek le-dina and therefore one cannot extract money under such circumstances, nevertheless, many others mandate compensation.",
+ "Assuming both parties concur that it was not specified whether the money was a loan or a gift, seemingly the Tove’a who argues that his intent was to lend the money is bari (certain), whereas the Nitva is in doubt whether in fact it was a loan. Shulhan Arukh rules that in such a case one is exempt from paying. Poskim nevertheless maintain that one is obligated to pay, not because we believe the ta’anat bari, claim of certainty, but rather because we invoke an umdana that it was the person’s intention to give a loan. The Nitva is therefore obligated to compensate him regardless of whether he is a stranger, friend, or relative.",
+ "Based upon the foregoing, in the absence of the donor’s articulating his intent regarding the nature of the monies distributed, and in the absence of a minhag in the community to give such monies to young couples,and in pursuance to Hatam Sofer that a peshara is proper due to uncertainty regarding the Halakha, Tove’a is hereby obligated to return two years of rent to his father-in-law.",
+ "7. Tova’at’s Claim for Ma’aseh Yadeha (Handiwork)",
+ "In exchange for being supported by her husband, a wife is obliged to do domestic work that is normally performed by wives enjoying a certain standard of living. In Mishnaic and Talmudic times, wives engaged in domestic chores such as cooking, baking, and washing, and contributed economically to the family by engaging in weaving wool in the marital home. Such work became an obligation upon a wife. Subsequently, in certain places during the Middle Ages, wives embarking on other “career choices” chose to embroider and spin linen. These “female occupations” became obligatory upon a wife, and as such, income earned from this work belongs to the husband in exchange for his financial support of his spouse.",
+ "As the centuries progressed, almost all vocations became “gender neutral,” women began working outside the home, and consequently, occupations such as working in a factory, teaching, and secretarial work are not activities that a wife must perform. In other words, in exchange for spousal support, a wife engages in certain domestic chores and economic activities in her household. However, a wife’s employment in the marketplace is not to be understood as reciprocation for her husband’s support. As such, if a wife manages a household and exerts additional time effort to earn money in the marketplace, such work may be labeled ha’adafah al yedei ha-dehak. If a wife exerts herself more than usual (ha’adafah al yedei ha-dehak), it is a matter of debate whether this “surplus” belongs to her or to her husband. Consequently, a husband who contends that his wife’s earnings should belong to him may very well lose in advancing such a claim in beit din.",
+ "Some authorities will argue that since there are Poskim who contend that a wife’s income belongs to her, a wife is entitled to retain her earnings by invoking “kim li” (lit. “I hold the opinion”). The invocation of this rule rests on the assumption that when a dispute is submitted to a beit din, the panel has to determine which claimant is entitled to retain certain assets. In Halakha, there is a concept whereby one of the claimants is considered as the one who is in possession of the disputed item (the muhzak), while the other claimant wants to “extract” this asset and transfer it to himself. As R. Elyashiv notes, pursuant to halakhic court procedure, the wife who engages in her domestic chores while working as a social worker can argue: “I want the beit din to rule in my favor, based upon the position of Rabbis so and so who affirm my claim.” This argument is halakhically admissible provided that the wife is in possession of her income – if it is in her bank account (under her own name or jointly held with her husband), still in her employer’s possession, or invested in her property. However, if the earnings have been deposited in her husband’s financial accounts or have been invested in his property, she would not be muhzeket and therefore would be unable to receive her earnings by invoking the “kim li” argument.",
+ "Based on the cumulative evidence in our case, given that a year prior to the divorce proceedings Tove’a withdrew $200,000 from the couple’s joint account, and Tove’a can only demonstrate that $50,000 was used in order to pay for domestic expenses including income tax obligations, Nitva’at is entitled to $75,000, which represents fifty percent of those funds, as a joint account holder. Nitva’at is entitled to those funds for two reasons: (1) Based upon the kim li argument, she is entitled to her earnings, but she is only entitled to half of these assets, since by signing on to a joint account, she implicitly agreed that her assets would be jointly owned by her spouse and herself. (2) Even if one rejects the merits of employing the kim li argument, nevertheless her husband’s agreement to have his assets jointly held with hers in the same account entitles her as a partner to half those assets. However, she would not recover income from earlier years of employment that was deposited in this account and already spent for the domestic household.",
+ "Decision",
+ "1. Tove’a is hereby obligated to give the Nitva’at a get after the rendering of our decision.",
+ "2. Tove’a is hereby obligated to pay her $50,000, the value of her ketuba and tosefet ketuba.",
+ "3. Tove’a is hereby obligated to pay the Nitva’at $75,000.",
+ "4. Based upon NJ Child Support guidelines, Tove’a is obligated to pay $1600 monthly child support for his child.",
+ "5. Nitva’at’s petition to relocate to another state is hereby denied.",
+ "6. Tove’a is hereby obligated to pay two years of rent to his father-in-law."
+ ]
+ },
+ "Chapter 7; Decisions in Hoshen Mishpat": {
+ "a) The Scope of an Investment Broker's Responsibility": [
+ "A. The Scope of an Investment Broker’s Responsibility",
+ "Menachem Levy vs. People’s Bank, Levi Cohen",
+ "On June 1, 2011, the above parties signed an arbitration agreement empowering this panel to resolve their dispute according to applicable portions of Shulhan Arukh and Poskim. As noted above, Menahem Levy is filing suit against Mr. Cohen personally, as well as against People’s Bank, Inc. Both parties submitted their differences and disputes in reference to Cohen’s services provided to Menahem Levy to this beit din. Having given said matters due consideration and having heard all parties testify as to the facts of said disputes and differences, this panel does decide and agree as follows:",
+ "Facts",
+ "Menachem Levy (hereafter: Tove’a), a long-time banking client of People’s Bank in New York, NY, a bank owned and managed by Torah-observant Jews (hereafter: Nitva), met with Levi Cohen (hereafter: Cohen), an Orthodox Jewish broker at the bank’s newly created brokerage firm (which inadvertently failed to file incorporation papers at the time) to discuss investing. In his forties at the time, Cohen had previously placed his money in insured certificates of deposit. At the meeting, Cohen prepared a comprehensive financial analysis, which included evaluations of Tove’a’s financial portfolio, his net worth, debt management, retirement finances, estate planning, and insurance coverage.",
+ "Prior to investing with the brokerage firm of the bank, Tove’a received certain written materials to read regarding the risks associated with the stock investments and signed off on paperwork to open up his account. Cohen signed off in his capacity as an employee of People’s Bank, Inc. Among the provisions of the customer agreement relating to the discretionary account are the following:",
+ "The client agrees that he has read and understood the risks involved in trading on a securities exchange … The broker shall conduct its business, as it relates to the services defined herein, in a commercially reasonable, legal and ethical manner … and that the broker’s affairs with client have been conducted in a professional manner. All investments involve risk, and unless you provide individualized recommendation to me, I or my agent are responsible for determining the suitability of any trade, investment, investment strategy and risk associated with my investments.",
+ "With the consent of the Tove’a, Cohen was empowered to determine whether to buy or sell stock funds without any prior instructions from the Tove’a. To state it differently, Cohen was managing a discretionary account on behalf of the Tove’a. Cohen invested half his money in these stocks. The other half, which was to be invested in conservative bonds, was placed in a discretionary account wherein there is a duty to execute an order promptly in accordance with the Tove’a’s instructions and best interests. Prior to the economic meltdown of 2008, Cohen abstained from following the Tove’a’s instructions to purchase a bond. Subsequently, the market plunged and the product subsequently declined in value.",
+ "Though Cohen held a professional liability insurance policy, and therefore commercial practice is that parties proceed directly against the insurance company, nevertheless, at the time of the convening of this beit din panel, Tove’a had not and was inclined not to commence a suit in civil court against the insurance company.",
+ "Tove’a’s Claims",
+ "Tove’a claims that a special relationship existed between Cohen and himself, which imposed a duty on the defendant to convey sound financial advice to him. Additionally, it appeared that Cohen held or appeared to hold special expertise relating to investment planning, and therefore Tove’a relied on him that the information provided to him was financially sound.",
+ "Cohen induced the Tove’a to buy securities by misrepresenting the level of risk, such as illiquidity, deferred contingent sales charges, and unusual political and economic risks. In reply to Cohen’s argument that written disclosure and signing off on the potential risk of such investments precludes a claim for negligent misrepresentation, Tove’a claims that he had no prior investment experience regarding stocks, the written materials were difficult to comprehend, and he didn’t understand what he was signing. In reply to Cohen’s argument that no special relationship had been established between the parties, Tove’a argues that Cohen’s credentials as an investment planner, his preparation of a comprehensive financial analysis of Tov’ea’s holdings, and his receipt of compensation for his services ipso facto creates a relationship of trust and confidence rather than an expression of “curbside advice.” Like others, Cohen is a licensed broker, who passed examinations and had passed certain education requirements. His conduct is subject to regulation by the government and industry self-regulatory organizations.",
+ "Admittedly, Cohen informed himself of his client’s investment objectives and general financial situation, so as to ensure that each security would be suitable to his client’s investment objectives and financial situation. On the basis of his due diligence, he recommended setting up a discretionary account for the purchase and sale of stocks and a non-discretionary account for the purchase and sale of conservative bonds.",
+ "Regarding the stock investments, though Cohen was authorized to buy and sell without the Tove’a’s prior authorization, nevertheless, Cohen failed to heed red flags that indicated a potential depreciation of his stock investments and the Tove’a’s stocks decreased in value, resulting in a loss of $300,000.",
+ "Tove’a is suing People’s Bank and Cohen personally. Though Cohen is employed by a corporate entity, nevertheless, he is not a shareholder in the bank, and therefore, he allegedly is personally liable for his conduct.",
+ "Cohen’s Claims",
+ "Given that the Tove’a, as an investor, was provided with written materials disclosing the risks, and signed off on his accounts, which indicated that that the investment involved a degree of risk, Tove’a has no claim for negligent misrepresentation. Moreover, Tove’a’s contention that there was a special relationship between them implies a relationship that extended beyond the typical arm’s length business transaction, but such ties did not exist. Nobody from the bank initiated such contact with Tove’a, no one induced the Tove’a to forego performing his own due diligence, and no individual repeatedly vouched for the veracity of the allegedly deceptive information. The requisite relationship of trust and confidence did not exist, and therefore, Cohen argues that he is exempt from responsibility for any losses from both the stock investments and the potential bond purchase. Finally, given that Cohen served in the capacity of an employee of the bank, any award handed down by the beit din must be paid by the bank, which is incorporated, rather than by him.",
+ "Given that Tove’a may proceed against the insurance company, which protects Cohen’s professional activity as a broker, Tove’a has no right to “double dip” should he decide to file a civil suit and recover monetary damages from the insurance company. Consequently, in the event that there would be a beit din award, it should be contingent upon the fact that Tove’a shall refrain from filing suit in court against the insurance company.",
+ "Discussion",
+ "Generally speaking, given that we are dealing with monetary matters, Halakha allows the parties to determine their own business relationship, provided that the agreement complies with proper form, i.e., a kinyan (a symbolic act of undertaking an obligation), and that it does not violate any prohibitions. Consequently, if the written memorandum between the broker and client varies from the halakhot of Hoshen Mishpat (halakhic civil law), the agreement will be valid and binding upon the parties.",
+ "In our case, among the terms of the brokerage agreement was the following: a presentation of the financial services to be provided, the rate of compensation, and the broker’s obligations. Prior to signing the agreement, Cohen brought the contents of a risk disclosure letter to the notice of the Tove’a, and in the written agreement it states that he has read and understood the risks involved in trading on a stock exchange. When one invests in securities and becomes aware of the attendant risks, it means that he has accepted that his investments may decline in value. In the agreement, there was no standard “no reliance” disclaimer that neither party was relying on any advice, statements, or recommendations (whether written or oral) of the other party regarding any transaction. Absent any agreement to the contrary, such an arrangement will exempt the broker from responsibility for any negligent behavior. Finally, the agreement contains a pre-dispute arbitration clause whereby any differences will be resolved by a beit din. As such, this panel has been empowered by the parties to address the matters in dispute in accordance with the provisions of the signed written agreement.",
+ "At the initial hearing, the question arose whether the matters in dispute would be resolved according to the canons of Hoshen Mishpat or according to minhag ha-soharim (commercial practice) as expressed in federal and state law as well the broker-dealer selling practice rules promulgated by self-regulatory organizations such as the National Association of Securities Dealers and the New York Stock Exchange. The Tove’a contends that the halakhot of Hoshen Mishpat should govern the proceeding, and Cohen advanced pleadings for minhag ha-soharim to be the basis for resolving their issues. Without having to address the halakhic propriety of invoking minhag ha-soharim, given that the parties were in disagreement regarding how to have their differences resolved, this panel decided to render a psak din (decision) grounded in the halakhot of Hoshen Mishpat.",
+ "At first glance, such a decision runs counter to an oft-cited teshuva (responsum) authored by R. Shlomo ben Avraham ha-Kohen (known by the acronym “Maharshakh”), a sixteenth-century authority in Salonika, Turkey, who addressed a similar scenario. There was a dispute relating to a civil contract. One party wanted the matter resolved in a beit din and the opposing party wanted the matter resolved by a merchants’ panel that was located in Venice, Italy where the transaction took place. Maharshakh ruled that since both parties were relying upon commercial custom to govern their affairs, the matter ought to be resolved by the civil panel of businessmen. Seemingly, in our instance, the engagement of the Tove’a and Cohen was premised upon the fact that commercial practice would prevail. Consequently, we should opt to render a decision based upon civil law.",
+ "However, a closer reading of the teshuva reveals that the psak was contingent upon two facts. Firstly, there must be evidence that the parties relied upon commercial custom to govern their relationship. Secondly, in Venice, the minhag was to resolve commercial issues in front of laymen of professionals rather than a beit din. In our situation, the provisions of the brokerage agreement do not attest to any intention that their affairs be determined by minhag ha-soharim. On the contrary, the pre-dispute arbitration clause in their agreement designates the forum for resolution to be a beit din. Our decision to resolve this matter according to the canons of Hoshen Mishpat is thus not contradicted by the aforementioned teshuva.",
+ "In reply to Tove’a’s claim that he failed to understand what he was signing, once the client reads a prospectus, a risk disclosure statement, and signs off on a brokerage agreement, he cannot subsequently claim that he did not understand what he signed or that he failed to read all the provisions of the agreement. In effect, by failing to find others who would explain the agreement to him, he is in effect relying upon his broker and is obligated to the terms of the agreement. Hence, Tove’a’s contention that he did not understand what he read when he signed the bank’s customer agreement lacks foundation.",
+ "1. Reliance Factors That Establish a Broker’s Responsibility",
+ "A claim for negligent misrepresentation entails a communication, in the course of one’s employment or profession, of an unintentional false representation of information for the guidance of others in their commercial transactions. In our situation, a broker advises a client and misrepresents certain information regarding securities investments. Relying upon this advice, a purchase or sale of securities is executed and losses are incurred.",
+ "Addressing which factor(s) engender responsibility for negligent misrepresentation, there is a debate whether a “mumheh” – in our case, a licensed investment broker – who performed his due diligence by proffering advice and erred, is exempt under all circumstances. Unable to resolve the controversy, R. Yosef ibn Lev, a sixteenth-century authority therefore rules, “In cases of doubt we do not extract money.”",
+ "Implicit in his position is that if an arbiter feels he cannot resolve the situation, he should abstain from deciding the merits of a claim for negligent misrepresentation. Adopting such a view inexorably leads to the conclusion that one cannot find any monetary relief in filing such a suit against an investment broker who was paid for his services and acted negligently.",
+ "However, the more widely accepted position is that receipt of payment, “the pecuniary interest,” serves as the foundation for the expert’s responsiblity for lack of due diligence in communicating advice. As Shulhan Arukh states,",
+ "If he charged for his services, he is obligated to pay even though he is an expert and does not require further training.",
+ "Relying upon the venerable views of Rambam and Rosh, Shakh concurs with Shulhan Arukh’s decision. This position is reflective of normative Halakha.",
+ "Assuming that such a claim will be heard in beit din, pursuant to Shulhan Arukh and Rema, the prerequisite for liability is that the professional advisor is remunerated for his services and that the client has relied upon his advice, either by an actual statement communicated to the investment advisor or because the circumstances indicate an apparent reliance upon the advisor.",
+ "Even though we are dealing with a Tove’a who invested conservatively, depositing his monies in bank CDs, and who is relatively na•ve regarding the securities market, clearly we are dealing with a broker who performed his due diligence in communicating to his client the risk of such investments. Furthermore, by opening up these various accounts and signing off on the customer’s written memorandum, the Tove’a accepted or understood the nature of the risk and voluntarily chose to subject himself to that risk. Given that Cohen forwarded materials for the Tove’a relating to securities, and also explained “the market risk” to him and that “past performance does not guarantee future results,” there was an implicit assumption of risk which exempts the broker from responsibility for ensuing losses. Clearly, Tove’a’s assumption of risk was limited to receiving sound investment advice.",
+ "2. The Halakhic Consequences of Securities Investment Losses due to a Broker’s Inaction in Selling",
+ "Given that the Tove’a was informed regarding the risks of his investment, is there a basis for concluding that the Nitva remains liable? A broker handling a discretionary account decides whether to sell or buy without receiving any instructions from his client. To execute transactions in a professional fashion, the broker must be duly informed of market fluctuations that affect his client’s interests and objectives, and must provide ongoing counsel regarding the risks entailed in purchasing or selling securities. Granted a power of attorney, the broker is authorized to execute transactions without the client’s prior approval.",
+ "Despite the existence of red flags that indicated a potential depreciation of the Tove’a’s investments, Cohen refrained from selling, and losses were incurred. This matter must be examined within the context of hilkhot shemira (bailment), hilkhot shelihut (agency), and hilkhot nezikin (damages). Absent terms of the customer agreement stating otherwise, generally speaking, given that the damage was only indirect (grama) and “one who causes indirect damage is exempt from responsibility” (“grama be-nezikin patur”), one might at first glance assume that Cohen is exempt from compensating the Tove’a for his losses. According to most authorities, an action is a direct cause of the ensuing damage (“garmi”) if the damage is instantaneous and inevitable (“bari hezeka”), such as destroying someone’s note of indebtedness. However, if the damage is not inevitable or instantaneous, the damage is labeled grama. However, given that Cohen is a professional broker and is paid for his services, he is liable for his negligence in failing to sell the securities in a timely fashion. This conclusion is predicated upon construing a broker as incurring responsibility based on the norms of hilkhot nezikin.",
+ "Alternatively, for those who argue that one cannot advance a claim for negligence based on hilkhot nezikin, or espouse the view that a professional broker who is paid and erred is in the category of an ones, i.e., an unpreventable accident, and is therefore exempt from any errors that might have been committed or omitted, Cohen may be nevertheless responsible by virtue of his status as a shomer sakhar, i.e., paid bailee, who is liable for negligence including loss and therefore subject to hilkhot shemira. Though Cohen never explicitly accepted the responsibility to safeguard the assets, nonetheless, in this respect he is no different than any employee who receives compensation, who is obligated to safeguard the material he works with, and if he causes a loss, he is responsible. Alternatively, in light of the client’s reliance upon Cohen, as a professional broker compensated for his expertise, he is responsible for any negligence and ensuing loss, even if the loss was not bari hezeka. Finally, the circumstances indicate, i.e., there is a giluy da’at, that the monies have been transferred from the client to the broker, and therefore, ipso facto, the planner is entrusted with them.",
+ "Regardless of the rationale that establishes the ties of shemira, one of the consequences of Cohen’s status as a shomer is that he is responsible for his inaction. Addressing this point, R. Yosef Trani deals with an agent who was remunerated and empowered to sell merchandise but failed to finalize the sale. In the interim, the goods declined in value. Though in terms of hilkhot nezikin, he would be exempt from responsibility (since the situation would be labeled as grama), however given that the shaliach is also a shomer, he is liable for acts of grama. Similarly, one may conclude that if a broker is aware of the potential decline of securities, he would be responsible for ensuing losses.",
+ "Implicit in invoking hilkhot shemira as defining one of the identities of an investment planner, is that a broker’s duty of care encompasses protecting the market value of the securities. If a Jew deposits hametz with a fellow Jew on the eve of Pesach and the Jewish bailee neglects to sell the hametz to a gentile before the onset of Pesach, the owner of the hametz is forbidden to derive benefit from it after Pesach. Moreover, according to most authorities, the shomer’s responsibility is limited to ensuring the preservation of the actual physical state of the hametz. The fact that the owner of the hametz will be unable to benefit from the foodstuffs after Pesach is not the shomer’s responsibility. Similarly, it would seem that the safeguarding of the value of securities from market fluctuations is beyond a shomer’s mandate.",
+ "However, there are Poskim who note that in cases of potential devaluation of currency or depreciation of documents such as a lottery ticket, a shomer is duty-bound to redeem this currency or be liable for failing to be aware of the lottery ticket’s expiration date. Similarly, we may conclude that an investment planner, by dint of being a shomer, is obligated to keep abreast of market fluctuations, and if he fails to sell an investment that demonstrates the potential to decline in value, he is liable for the loss. In other words, even if one would contend that a professionally paid broker’s inaction in selling investments that would potentially lose their value is not “bari hezeka” and therefore should be viewed as grama, nevertheless, as a shomer, he would be responsible for the loss.",
+ "To assess whether, in fact, there are grounds to view Cohen’s inaction as an act of negligence, we inquired with two experts in securities investments as to whether the decline in the value of the securities was due to the financial integrity of the companies or “the halo effect” of the financial markets. Depending on its source, the decline ought to have propelled Cohen to either sell or refrain from selling these securities. Addressing an insurance agent who failed to collect an award from an insurance company and subsequently went bankrupt, Maharshakh states,",
+ "It appears that this matter should be clarified by expert merchants, and if they feel he has been negligent according to the custom of the merchants, he is … obligated to pay.",
+ "In our scenario, the expert testimony of both financial planners was that Cohen’s inaction was due to his failure to keep abreast of the market fluctuations and therefore he is obligated to pay Tove’a for his losses.",
+ "3. Corporate Liability or Broker’s Personal Liability?",
+ "Generally speaking, directors, officers, and shareholders of a corporation are not personally liable for the financial obligations of the corporation. One of the reasons for accepting this rule, known as the limited liability rule, is because there is an assumption that when individuals engage in transactions with corporations, everyone will abide by civil law, which validates this rule. Implicit in this position is that regarding monetary matters, “matneh al ma she-katuv ba-torah, tena’o kayam,” i.e., we can stipulate contrary to what is written in the Torah and establish our own agreements regarding our commercial transactions. In other words, though Halakha imputes personal liability to these individuals, Halakha permits us to adopt the norms of civil law, which precludes them from being personally responsible for any debts. In effect, individuals have not only agreed to comply with secular law but also with “minhag ha-soharim,” i.e., commercial practice. Alternatively, others contend that pursuant to “dina de-malkhuta dina,” i.e., the law of the kingship is the law, Halakha imparts validity to limiting liability of shareholders, directors, and officers. However, given that Cohen was an employee for People’s Bank, Inc., rather than a shareholder, director, or officer, the limited liability rule cannot shield him from personal liability for his improper behavior.",
+ "The question is, given the fact that Cohen signed off on the customer agreement as an employee of People’s Bank, will Cohen’s employer be responsible for his actions, or will he be personally liable for his failure to sell the securities in a timely fashion? As we explained, the identity of a broker is molded by the halakhot governing nezikin and shemira. However, there is another realm of Halakha which impacts a planner’s identity, namely hilkhot shelihut, i.e., the laws of agency, and hilkhot sekhirut, i.e., labor relations law, which replies to our question. Generally speaking, agency is formed on the basis of a verbal commitment, a written agreement, or the conduct of the parties. In our scenario, in the absence of an oral or written agreement explicitly stating that Cohen is the shaliach of the Tove’a, Tove’a’s authorization to have Cohen open a discretionary account is nevertheless equivalent to appointing Cohen as his agent. Numerous Poskim have construed a broker as a shaliach, either due to the services he provides, or because he is employed by the Nitva. To put it differently, Cohen’s responsibilities are defined not only by hilkhot nezikin and shemira but also by hilkhot shelihut and sekhirut po’alim. As a shaliach, the broker is to manage the account in his client’s best interests. If the broker undermines his client’s best interests, such as by failing to address potential loss of investment, the client can raise an objection, “le-tikunei shedartikh ve-lo le-avutei,” i.e., “You were commissioned to act for my benefit, not to my detriment!”",
+ "The question that remains is whether the Nitva or Cohen is liable to pay for the losses. There is a proscription against damaging another person’s property. In addressing the case of a shomer, Rambam writes, “Anyone who acts negligently is a mazik.”",
+ "The moment that a person obligates himself to be a shomer, in acting negligently he becomes a mazik, even in situations of grama.",
+ "Consequently, once the issur of causing damage occurs, the mazik must pay for losses caused even indirectly. As we have demonstrated, Cohen is liable for damages due to the harm that he perpetrated. In effect, Cohen’s inaction caused damage, and although it may have been indirect, since the damage involved violation of an issur, at first glance, one would conclude that Cohen is responsible for his conduct. But as a po’eil, his behavior is merely an extension of the work of the employer, “yad po’eil ke-yad ba’al ha-bayit.” And although we generally invoke the rule that “one cannot be an agent for a prohibited act,” and therefore one would conclude that the employer (meshaleiach) ought to be exempt from responsibility, here, the status of the broker as a po’eil trumps his status as a shaliach, and therefore Nitva ought to be responsible. However, most authorities contend that the rule “one cannot be an agent for a prohibited act” applies to a po’eil, and therefore, given that Cohen committed an issur by harming the Tove’a’s assets, he is responsible.",
+ "4. The Scope of the Monetary Award",
+ "Reuven, a landlord, leases his house to Shimon contingent upon Shimon taking out fire insurance. Shimon fails to insure the property and the house burns down. Since Shimon agreed to assume the responsibility of a shomer by dint of agreeing to take out insurance, R. Hayyim Segelovich concludes that Shimon acted negligently and therefore Reuven is entitled to full compensation for his home. Other authorities have concurred with his view. Analogously in our case, Cohen, by virtue of the fact that he is a shomer and shaliach, is obligated to fully compensate the Tove’a for his losses.",
+ "5. A Beit Din Award and an Insurance Award – “Double Dipping”",
+ "Based upon the foregoing, Tove’a is entitled to receive full compensation for his losses. Given that Tove’a may proceed against the insurance company that protects Cohen’s professional activity as a broker, Cohen argues that he has no right to “double dip,” should he recover monetary damages from the insurance company. Consequently, any beit din award should be contingent on the fact that Tove’a fails to recover monetary damages from the insurance company.",
+ "Addressing the case of a tenant who assumed liability for a loss due to fire, and subsequently, the landlord bought fire insurance, Ohr Sameach rules that even though the insurance company will reimburse the landlord for the loss, nevertheless, the tenant still remains bound to pay the landlord for the identical loss. Since the tenant assumed an unconditional obligation to pay for fire damage, the tenant must pay the landlord even if the landlord will not suffer a loss (due to insurance compensation). Most authorities subscribe to this position of double indemnity. Consequently, as long as the insurance company allows the landlord to benefit from double compensation, such benefit will be halakhically valid. Similarly, in our case, as long as the terms of the insurance policy will allow for Tove’a to recoup his losses twice, Halakha will validate both the beit din award and insurance award.",
+ "Decision",
+ "1. Menahem Cohen is hereby obligated to pay Tove’a $300,000.",
+ "2. Tove’a is permitted to file suit in court against the insurance company.",
+ "3. All other claims and applications are hereby denied."
+ ],
+ "b) Piercing the Corporate Veil": [
+ "B. Piercing the Corporate Veil",
+ "Century Affiliates vs. Rabinowitz Properties",
+ "On February 1, 2011, the above parties signed an arbitration agreement empowering this panel to resolve their dispute according to applicable portions of Shulhan Arukh and Poskim. Both parties submitted their disputes in reference to various claims advanced by Century Affiliates (hereafter: Tove’a) against Mr. Dine of Rabinowitz Properties of Bethesda, Maryland (hereafter: Nitva).",
+ "Facts",
+ "Pursuant to a contract, dated July 1, 2010, Tove’a was represented by Levi Fried and Nitva was represented by Moshe Dine. According to the agreement, Tove’a performed certain environmental protection work on behalf of the Nitva. Nine months after the work was completed, some outstanding invoices remained unpaid. At the time, Mr. Dine was the CEO of Rabinowitz Properties, a corporate business whose partners, directors, and mangers were Jewish, and Nitva held the controlling interest in this business entity.",
+ "Tove’a’s Claims",
+ "The Tove’a argues that it was his understanding, based upon the trust relationship developed over years in business dealings with Nitva, that if Rabinowitz Properties would fail to pay the outstanding debt, Dine would serve as a guarantor and personally pay it. In fact, the Nitva said to the Tove’a, “You need not worry. Our assets are secure.”",
+ "Nitva’s Reply",
+ "Given that Nitva, as CEO of Rabinowitz Properties, acted at all times as a representative of the corporation, Nitva argues that, in accordance with the accepted doctrine of the limited liability rule, he is not personally liable to pay a corporate debt. All of the Tove’a’s invoices were paid from corporate accounts rather than from Nitva’s personal financial accounts. Moreover, Nitva claims that at no time did he communicate to Tove’a that he construed these outstanding monies as a personal debt. Though Nitva admits that he communicated to Tove’a that “You need not worry, our assets are secure,” nevertheless Nitva meant that our company assets are now secure and therefore bills will be paid. In fact, Nitva subsequently realized that some of the Tove’a’s work was below industry standards, and as a result, refused to pay the unpaid invoices. To put it differently, Tove’a’s work and Nitva’s interaction with the Tove’a was inextricably linked to corporate past, present, and future rather than connected to Nitva’s “personal piggy bank.”",
+ "Discussion",
+ "The threshold question is how Halakha views a corporation. Dating back to the English case Salomon v. Salomon & Co. (1897), common law views a corporation as an artificial person. It is a legal fiction recognized by civil law.",
+ "As explained,",
+ "Legal person [is] a body of men or of property which the law, in imitation of the personality of human beings, treats artificially as subject of rights and duties … The classic example of a legal person is the corporation … The corporation has usually … the following characteristics: a name common to the aggregate of its component individuals … ; a life independent of the lives of its components; the possession of privileges or rights, liabilities or duties, which do not inhere in its membership as individuals …",
+ "Jewish law did not recognize the type of ownership implied in the idea of a corporation. Common ownership is ordinarily expressed in terms of partnership [shutafut] … The salient differences whereby partnership may be distinguished from the corporation are: the continued existence of the partnership is dependent upon the lives of the partners; the rights, liabilities and duties associated with a partnership inhere almost directly in the individuals members of the association …",
+ "1. The Nature of a Corporation: Tzibur v. Shutafut",
+ "Consequently, it is unsurprising to find that most authorities view the corporation as a shutafut, i.e., a joint effort of partners.",
+ "However, a minority of authorities construed the corporation as an independent entity. To buttress their conclusion that the corporation is an artificial person, authorities look for parallels of associations dating back to the time of the Mishnah and Talmud that are construed as independent entities. For example, municipal governments known as “bnei ha-ir” were empowered to address the political, economic, social, and educational matters of the local Jewish community. The authoritative governing body of this corporate body was the “shiva tovei ha-ir,” i.e., the seven notables of the city who were elected by the local citizenry. For numerous authorities, this panel was viewed as being an independent body with a life of its own, untrammeled by the halakhot that are applicable to private individuals. For instance, in contradistinction to a private agreement, a kinyan (symbolic act of undertaking an obligation) is not required in order to impart validity to a public agreement. Therefore, if the municipal body makes a promise, the body is duty-bound to comply with it, even though it is not legally enforceable in a beit din.",
+ "A few decades ago, this notion of the tzibur, i.e., the community, was extended beyond the confines of the seven elders of the city to encompass political agreements of political parties in a democratic state. In a case brought to an Israeli beit din, three political parties were running for election for a municipal council under a joint list. The parties executed a written agreement that if only two of the first three candidates were elected, the second would withdraw in favor of the third. As expected, only two were elected, but the second candidate refused to resign. Among the arguments advanced by the plaintiff in beit din was that no proper kinyan was performed, and consequently, the written agreement had no validity. The beit din’s reply was that:",
+ "Communal leaders … should not advance the claim that they don’t have to comply with the duties they agreed to because they are not legally binding. Words and promises, in particular those regarding the public, are matters of holiness … The public may not break its pledges …",
+ "Pursuant to some Aharonim, given that Halakha views the tzibur as an independent entity, we similarly ought to recognize a corporation as a separate entity. Just as the public association is governed by its own rules, similarly corporate life has its own practices.",
+ "2. The Limited Liability Rule",
+ "Regardless of how one construes a corporation as a partnership or as an artificial person, everyone agrees that Halakha validates the limited liability rule. Pursuant to this doctrine, shareholders are immune from liability for corporate torts and debts beyond their investments in the corporation’s stock. Even those Poskim who construe a corporation as a general partnership, and as such personally obligate each and every employee for an ensuing liability, they nevertheless invoke the limited liability rule. In other words, despite the fact that a corporation is viewed as a shutafut, generally speaking, directors, officers and shareholders of a corporation are not personally liable for the financial obligations of the corporation. Moreover, even R. Yeshayahu Bloi, who argues that every shareholder is an owner of the corporation because his investment may result in profit or loss, nevertheless admits that barring certain extenuating circumstances, each and every shareholder is shielded by the limited liability rule.",
+ "Various reasons are advanced for recognizing this rule. In monetary matters, “matneh al ma she-katuv batorah, tena’o kayam,” i.e., one can stipulate contrary to what is written in the Torah and establish his own agreements and minhag ha-soharim, i.e., commercial custom, or “dina de-malkhuta dina,” i.e., the law of the kingship is the law, imparts validity to limiting liability.",
+ "Despite the fact that upon forming a corporation, no individuals or group of individuals sits down and explicitly agrees among themselves to comply with this rule, nevertheless in the words of R. Ezra Batzri, a retired Israeli dayan states,",
+ "In spite of the fact that not every individual is knowledgeable in all the facets of secular law, he accepts their norms … and he can apprise himself of the law before executing an agreement [with the corporation].",
+ "Since the corporate member can ascertain what the law states regarding liability, the corporate law has validity by dint of minhag, even if no individuals sought legal advice. This minhag requires compliance not from the members of the corporate entity, but also from third parties who engage in business with the enterprise.",
+ "Similarly, the late R. Bloi, dayan of the Edah Haredit Beit Din in Yerushalayim, argues that if the minhag is widespread, there is a presumption that the individual acted in accordance with the minhag, even if he was unfamiliar with it.",
+ "There is a widespread minhag that the limited liability rule applies to a corporation. Prior to the formation of the corporation, the prospective members of the corporation had the ability to afford themselves of legal consultation for the purpose of ascertaining the import of the limited liability rule. Consequently, the limited liability rule is operative.",
+ "3. The Limited Liability Rule and Shi’abud Nekhasim without Shi’abud ha-Guf or Apotiki Meforash",
+ "In fact, two pesakim (decisions) issued by battei din in Eretz Yisrael echo the same approach. In one din torah, the beit din examined whether managers and workers bear any personal responsibility for corporate debt. In addressing this question, the panel debated whether Halakha recognizes a shi’abud nekhasim (an encumbrance of assets) in a situation such as an outstanding corporate debt, where there exists no shi’abud ha-guf (personal obligation to pay the debt). Unable to decide whether one should subscribe to the view that Reuven can place a lien on his own assets for the sake of Shimon without Reuven having any personal duty to Shimon, the beit din concluded that, based upon minhag ha-soharim and dina de-malkhuta dina, these corporate employees were exempt from liability. Though this din torah (beit din proceeding) did not address our scenario of a corporate officer who controlled the corporation, the thrust of their reasoning does not indicate the existence of any distinction between a corporate owner and a corporate manager.",
+ "Seven years later, another din torah in Eretz Yisrael dealt with a Tove’a who had commissioned the services of a corporation and claimed an outstanding debt. The Nitvaim (defendants) argued that the business’s original owners were deceased, and that the Nitvaim had inherited ownership of the company. The question posed to the beit din was whether the heirs should be considered the nitvaim, in which case debt recovery would be difficult, or whether the Nitva was actually the corporation, which is an independent entity and therefore liable. Endorsing the position of Ramban/Rashba, R. Shlomo Daichovsky, in a minority opinion, concluded that there can be a shi’abud nekhasim without a shi’abud ha-guf, and therefore, the proper address for debt collection is the company rather than its owners. Arguing like Maharshag, Rav Feinstein and an Israeli beit din equally maintain that the debt is grounded in shi’abud nekhasim without shi’abud ha-guf.",
+ "Alternatively, R. Yitzhak Weiss, R. Shmuel Wosner, and Machon Lehoro’ah, a beit din in Monsey, New York, contend that responsibility for debt incurred by a corporation is based upon the institution of “apotiki meforash,” i.e., user’s security interest. In other words, corporate management may establish a lien on the company’s assets without imposing any personal liability upon themselves, the shareholders, and employees. In effect, a creditor can recover his debt from the designated asset(s). The only manner by which a creditor’s right of recovery from the apotiki is extinguished is by paying the debt. Moreover, though apotiki meforash may serve to explain the absence of personal liability for corporate employees, it does not exempt them from complying with issurim such as ribbit.",
+ "Without addressing the various reasons for why one is obligated to pay one’s debt, and whether there is a difference whether we construe corporate debt liability as based on shi’abud nekhasim without shi’abud ha-guf or as an apotiki meforash, it is clear that shareholders and/or members of a corporation and creditors have implicitly agreed to exempt the former from personal liability.",
+ "4. The Scope of the Limited Liability Rule",
+ "Even if Halakha allows one to benefit from the limited liability rule, is there a distinction between an individual who owns this business enterprise and one who only invests in it? In other words, will the limited liability rule serve as a shield for an individual who owns and controls a corporation? R. Tzvi Yehuda Ben Ya’akov, a dayan in Tel Aviv, addresses the following question: If a corporate stockholder suddenly becomes an aveil (mourner), given that he is proscribed from working during the days of shiva, is there a prohibition upon the corporation to engage in work during the time of his shiva? In other words, does one identify “his work” as the work of the corporation, or do we view his shares as an investment in the labor of others, and the corporation’s work is not considered “his work”?",
+ "Initially, R. Ben Ya’akov draws a distinction between two types of shareholders. If a shareholder simply has an investment in the corporation, then any labor performed during his shiva is construed as the work of others in the corporation. However, if the stockholder has a controlling interest in the corporation, then any work engaged by the corporate network during his aveilut is “his work,” and the corporation should be closed during this period. In effect, the litmus test for determining whether the corporation should remain open is whether the aveil has a controlling interest or merely a shareholder investment. Given that R. Ben Ya’akov admits that a corporation is a separate entity, at the conclusion of the psak din, he leaves the question open. However, subsequently, in the next volume of his teshuvot, he affirms that a shareholder who is in control of a corporation is to be treated differently. Such a distinction has been endorsed by some Poskim regarding issues relating to hametz and ribbit. In our scenario, given that Nitva had a controlling interest in the company and was in control of the day-to-day operations of Rabinowitz Properties, in accordance with R. Ben Ya’akov’s line of reasoning, possibly he should be personally liable for any outstanding corporate debt.",
+ "However, it is our understanding that R. Ben Ya’akov’s teshuva is limited to hilkhot aveilut and does not impact upon the issue of a corporate owner’s personal liability for corporate debt. In other words, there are Poskim, who like R. Ben Ya’akov accept the limited liability rule, and yet with regard to issurim such as ribbit and hametz, rule that one must refrain from loaning money to a corporation without a heter iska and that an individual cannot buy shares in a Jewish-owned corporation that transgresses Shabbat. The same conclusion ought to apply regarding the issur of engaging work during one’s aveilut.",
+ "As R. Menashe Klein states,",
+ "Clearly it is prohibited to lend with interest to a corporation due to the fact that in actuality it is a partnership, akin to any partnership … with the tenai (stipulation) that the corporation is exempt from any shi’budei ha-guf (personal encumbrances) … if the corporation sustains a loss … But this does not remove the owners from their ownership rights … and if they borrow money with interest, it is their monies which were borrowed …",
+ "In short, according to R. Klein and others, the corporate hierarchy, namely the owner, and for that matter every shareholder, officer, and manager, are required to comply with issurim such as ribbit, yet at the same time they are shielded from personal liability for corporate debt based upon the limited liability rule. In short, the recognition of the limited liability rule protects the corporate hierarchy from incurring personal debt, but will not shield them from individual responsibility for compliance with issurim such as ribbit, shemirat shabbat, and the like. As R. Shternbuch exclaims,",
+ "If the limited liability rule would mean that ownership is totally nullified from the shareholders … then each husband would establish a corporation with his wife or family members … and we would say from henceforth, his food does not belong to him but to the corporation, and one would be able to keep hametz in one’s home during Pesach … and one would be exempt from affixing a mezuza to his doorpost and keeping Shabbat … !",
+ "Though regarding hilkhot aveilut, an individual with a controlling interest in a corporation will define corporate work as “his work” during shiva, nonetheless, such a determination will not mean that this officer is personally responsible for outstanding corporate debt.",
+ "Clearly, had Nitva verbally agreed to personally guarantee the outstanding invoices, such an agreement would have been binding. Assuming the Tove’a can demonstrate that he had personally agreed to guarantee payment of the outstanding debt, i.e., arevut, the Nitva would be obligated to pay personally. Just as the corporate veil does not shield an individual from the need to abstain from engaging in issurim such as refraining from violating the interdicts against ribbit and hametz, similarly, one must be trustworthy in one’s business commitments. And, should a corporate employee knowingly accept a certain corporate obligation as his own personal duty, he becomes personally liable. Following in the footsteps of R. Yitzhak Weiss and R. Shmuel Wosner, R. Shlomo Amar, Eretz Yisrael’s former chief rabbi rules,",
+ "… Even though practically speaking, a corporation is like an “apotiki m’forash,” and the owners are not personally liable, rather the corporate assets [are the asset-based liability], nevertheless, the director, who is hired as a professional … and is paid in accordance with his expertise, clearly must act responsibly and refrain from being negligent in his work, and any negligence … is construed as peshiah [halakhic negligence], … and an employee is liable at least like a bailee …",
+ "However, in our scenario, contrary to Tove’a’s allegations, such a relationship had never materialized, generating negligent conduct on the part of the Nitva. The communication of the Nitva’s message, “You need not worry, our assets are secure,” can easily be interpreted as meaning that the corporate assets are secure and payment will be forthcoming. Possibly, this promise did not envision any future corporate inability to satisfy the debt. In fact, if such an exchange would have occurred between two individuals in a private or non-corporate business setting, such an interpretation would be plausible, and one would have to prove that the Nitva was in actuality undertaking to be a guarantor in order to extract money from him. Had our scenario been one in which the corporate entity eventually filed for bankruptcy and failed to satisfy the debt, and the financial condition of the company was known to Nitva, he would have been personally liable for damages as a mazik, i.e., a tortfeasor committing negligent misrepresentation, regardless if the corporation is halakhically construed as an independent entity or as partnership. On the other hand, if Nitva were unaware of the pending financial debacle, he would not be personally liable. However, the circumstances surrounding our case did not transpire within the context of any corporate bankruptcy. As such, Nitva is personally exempt from compensating the Tove’a.",
+ "In our case, both Fried and Dine signed off on the contract and riders executed between their respective LLCs. In effect, the contract and riders of two corporate enterprises and their signatures accompanied by a contract memorialization of their respective roles as President and Vice President conveys to us that both Tove’a and Nitva are implicitly accepting the limited liability rule.",
+ "5. Piercing the Corporate Veil",
+ "One of the advantages of incorporating a business is liability protection. As noted, forming a corporation creates what is called a “corporate veil,” a division been the business entity and the personal assets of the shareholders, officers, and directors of a corporation. If challenged in a lawsuit, IRS action, or other action, the veil of liability protection may be pierced and these individuals may be held personally liable for its debts.",
+ "Pursuant to section 19 of the rider of the AIA document executed by the parties, the choice of law provision is the law of Maryland in resolving all matters with Rabinowitz Properties. Though the parties to this beit din (arbitration) proceeding have not expressed whether this matter ought to be resolved according to Hoshen Mishpat or Maryland law, we have chosen to resolve this matter of “piercing the veil” both according to Halakha and Maryland law.",
+ "A. Halakha",
+ "As we noted, a corporate officer, like any corporate employee, must refrain from transgressing certain issurim such as ribbit and Shabbat. Yet, simultaneously, he is protected by the limited liability rule, and therefore is exempt from personal liability for any outstanding corporate debt. However, should the controlling interest of a corporation reside with one individual, as is our case, the possibility exists that the corporation has either been established or functions as a mere tool or business conduit for the benefit of that individual. Should the major stockholder and one who is in control siphon off corporate assets by failing to report income, failing to comply with corporate formalities, and the like, such actions label him as a gazlan (thief), and he would be personally liable for the corporate debt.",
+ "As a beit din in Yerushalayim rules,",
+ "In certain instances we attribute the duties and rights of the corporation to the shareholders … One of the situations is if the corporate owner uses the corporation to commit fraud or do an injustice to another individual. In such an instance, we can obligate the owner personally… . and this is like any tenai [stipulation] in monetary affairs, in which we follow the stipulation. This applies when the original intention of the owner was to exploit the corporation. However, if this was not his initial intention, but nevertheless, “down the line,” the assets were not collectible, one cannot collect from the personal assets of the shareholders of the corporation.",
+ "As R. Wosner argues, if a corporate officer with a controlling interest dissipates the corporate accounts and funnels the funds into his own account, the corporate shield is lifted and he is personally liable for corporate debts.",
+ "To put it differently, some of the relevant halakhic factors for a beit din’s determination to pierce the corporate veil are as follows: (1) Commingling of corporate funds and other assets with personal financial instruments; (2) An individual’s treatment of the corporation’s assets as his own; (3) An individual holding out that he is personally liable for the corporate debt; (4) Failure to report corporate income; (5) Concealment and misrepresentation of the identity of the corporate ownership and management; (6) Use of the corporate entity to transfer to it the existing liability of another person or entity; (7) Use of a corporation as a subterfuge for illegal transactions; (8) Nitva’s control of the corporation is so complete as to constitute control of policy and finances. Such domination is then used to commit fraud, and the contravention of the duty owed to Tove’a caused injury.",
+ "In our scenario, none of the above factors were even raised as ground(s) to pierce the corporate veil, much less proven.",
+ "B. Maryland Law",
+ "The grounds for “piercing the veil” may vary from jurisdiction to jurisdiction. Given the aforementioned provision in the agreement, we will address how courts in Maryland dealt with this matter.",
+ "Despite the proclamation that a court may pierce the corporate veil to enforce an equity consideration, arguments that have urged corporate piercing for reasons other than fraud or a necessity to enforce a paramount equity (which has not been defined) have failed in Maryland courts. In Travel Committee, Inc. v. Pan American World Airways,",
+ "Inc., the Court cited a Fourth Circuit South Carolina opinion in DeWitt Track Brokers v. W. Ray Flemming Fruit Co. which states:",
+ "… When substantial ownership of all the stock of a corporation in a single is combined with other factors clearly supporting disregard of the corporate fiction on the grounds of equity and fairness, courts have experienced “little difficulty” and have shown no hesitancy in applying what is described as the “alter ego” or “instrumentality” theory in order to cast aside the corporate shield and to fasten liability on the individual stockholder.",
+ "Invoking the “alter ego theory” which allows one to disregard the corporate fiction where a corporation either is established or functions as a mere tool or business conduit of another individual, the DeWitt Truck Brokers enumerates the factors which establish that the alter ego exists:",
+ "These include: whether the corporation was grossly undercapitalized, the corporation’s failure to observe corporate formalities, non-payment of dividends, the debtor’s corporation’s insolvency, the dominant stockholder’s siphoning off corporate assets, the non-functioning of other officers or directors, the absence of corporate records and the corporation’s status as a façade for the stockholder’s arguments …",
+ "Legally, the reasoning is sound. Moreover, this reasoning has been applied in other American courts. But it is only that: a persuasive opinion. It has no binding effect on any of the Maryland courts, because it was applying the law of South Carolina. In fact, Maryland courts have adopted a restrictive approach to corporate veil piercing and limited it to instances of fraud. In fact, in various holdings, the court ruled that even if a sham corporation were set up for the sole purpose of evading legal obligations, no piercing would be permitted. Based upon the foregoing presentation of Maryland law, there is no basis for invoking the alter ego doctrine.",
+ "Even if one would argue that enforcing “a paramount equity,” i.e., the application of the alter ego theory, serves as another reason to pierce the corporate veil, in our instance, based upon the cumulative evidence submitted to this panel, no proof was shown that provided sufficient grounds for disregarding the corporate entity.",
+ "In sum, pursuant to both Halakha and Maryland law, in the absence of a demonstration of fraud, a claim for recovery of corporate debt from a corporate officer is without foundation. Based upon the cumulative evidence submitted to this panel, there was demonstration of fraud. In effect, Nitva, while serving as CEO of Rabinowitz Properties, was protected under the limited liability rule.",
+ "In short, Tove’a’s discovery attempt to uncover improper behavior such as fraud or total disregard of the corporate entity to satisfy Nitva’s personal agenda in order to impute Nitva’s personal liability lacks foundation.",
+ "Decision",
+ "1. Nitva is hereby exempt from personal liability for any corporate debts incurred by Rabinowitz Properties.",
+ "2. All other claims and applications are hereby denied.",
+ "3. Any provision of this decision may be modified with the consent of both parties."
+ ],
+ "c) Non Compete Agreements": [
+ "C. Non-Compete Agreements",
+ "Moshe Peking vs. Aaron Levy",
+ "On February 1, 2009, the above parties signed an arbitration agreement empowering this panel to resolve this matter according to applicable portions of Shulhan Arukh and Poskim. Both parties submitted to this beit din their differences and disputes in reference to various claims advanced by Aaron Friedman, the owner of Moshe Peking (hereafter: Tove’a) against Ilan Assaf (hereafter: Nitva). Having given said matters due consideration and having heard all parties testify as to the facts of said disputes and differences; this panel does decide and agree as follows:",
+ "Facts",
+ "From May 1995 through April 2003, Ilan Assaf was employed as a chef by Aaron Friedman of Moshe Peking, which was located in the orthodox Jewish commercial neighborhood in Milwaukee, Wisconsin. Among the terms of the restrictive covenant agreement signed by the parties at the commencement of Nitva’s employment were the following:",
+ "1. Employee acknowledges that it is essential to the success of the Employer that the business and the affairs of the Employer be kept in the strictest confidence. Employee shall not at any time disclose to any person any information (financial or otherwise) relating … to the business or relating to any trade secrets of the Employer, including without limiting the generality of the foregoing, customer lists, information relating to costs, information relating to present and contemplated services and products such as menus, recipes, dish presentations etc … Should the employee decide to resign his employment or should he be terminated the aforesaid information remains the proprietary information of the former employer.",
+ "2. Employee hereby covenants and agrees that he shall not for a period of five (5) years following departure from Employer’s employ, directly or indirectly, in any manner whatsoever including, without limitation, or in partnership or jointly or in conjunction with any person, as agent or shareholder, or in any other capacity such as independently carry on or be engaged in such a business in the Orthodox Jewish commercial neighborhood of Milwaukee, Wisconsin.",
+ "3. In the event that a court of competent jurisdiction finds any restrictive covenant contained in this Agreement to be unenforceable in whole or in part, including without limitation as to duration and/or territory, the parties hereby direct the court to reduce the scope of such provision to that which is reasonable in the circumstances.",
+ "4. Any disputes and differences regarding this Agreement shall be resolved by Beit Din Tzedek, Milwaukee, Wisconsin.",
+ "In effect, the parties executed two forms of restrictive covenants. In accordance with section one, there is a non-disclosure agreement which prohibits the disclosure of the employer’s proprietary information to a third party during the period of his employment as well as prohibiting the employee to disclose said information to others upon his decision to resign from his job or upon termination. And, in pursuance with section three, there is a non-compete agreement which restricts the employee from working for a competitor or independently establishing his own business in the same trade.",
+ "In April 2003, Nitva left Tove’a’s employ and opened his own restaurant in the same neighborhood. In May 2005, Ayala Friedman, chef-owner of Moshe Peking in Milwaukee, Wisconsin, sued her former chef, Ilan Assaf, now chef and part owner of King David’s Restaurant.",
+ "Tove’a’s Claims",
+ "In his complaint, the Tove’a alleged that the Nitva pirated the Tove’a’s menu, recipes, and dish presentations, and such conduct is a flagrant misappropriation of his intellectual property’s rights. According to Tove’a, the Nitva had copied a novel culinary creation (rather than a recipe for a dish already in existence in the culinary public domain such as fettucine alfredo, marinated skirt steak, chicken breast, or apple strudel), which Tove’a maintained was a signature dish at Moshe Peking. Unlike many dishes such as apple pie, which are not original to a chef, our culinary creation is novel. Since cuisine is frequently copied and imitated in the culinary industry, damages should be awarded due to the piracy. Furthermore, Tove’a alleges that Nitva’s opening of a competitive restaurant in his neighborhood immediately after his departure from Moshe Peking was a breach of the terms of the restrictive covenant agreement. In short, the piracy and the absence of geographical separation and market separation have deprived the Tove’a of a livelihood and are paving the way toward his financial ruin.",
+ "Nitva’s Claims",
+ "Nitva admittedly copied the cuisine and the methods of presentation. In reply to Tove’a’s copyright claim, it is his understanding that neither Halakha nor civil law, for that matter, would afford protection to Tove’a’s business investments. Secondly, though Nitva agrees that he signed off on a restrictive covenant agreement, nevertheless, pursuant to section three of said document, the agreement is contrary to public policy and therefore unenforceable.",
+ "Discussion",
+ "1. Protecting Cuisine and Dish Preparations under the Rubric of Secular Copyright Law",
+ "In addressing the protection of a literary or artistic creation, R. Yosef Nathanson, opines:",
+ "Let not our perfect Torah be viewed as not being at least equal to their idle conversation; that is something that reason rejects …",
+ "Invoking sevara, i.e., halakhic logic, R. Nathanson asserts that if non-Jewish society’s “idle conversation,” i.e., secular law, provides copyright protection for artistic creations, a fortiori Halakha must do no less. Subsequently, R. Yitzhak Schmelkes contendes that dina de-malkhuta dina, i.e., the law of the kingdom is the law, propels Halakha to impart recognition to an individual to publish his manuscript. A similar view was espoused by R. Shimon Sofer.",
+ "A recent secular legal presentation of our matter has been described in the following fashion,",
+ "The culinary industry generally views cooking as a derivative art. Chefs … draw inspiration from a multitude of places, borrowing and expanding on fellow chefs’ ideas and deriving new dishes from them. Many chefs freely admit that they base their dishes on versions that they have previously seen or eaten …",
+ "The scope of the law is set forth in section 102 of the Copyright Act of 1976 and extends to literary, musical, dramatic, choreographic, pictorial, graphic, architectural, and sculptural works …",
+ "Derivative works, which originate from a preexisting work and recast, transform or adapt that work, require additional considerations for copyrightability. A derivative work that is primarily a new work but incorporates previously registered material is copyrightable … Factors a court examines when considering whether to grant copyright protection for derivative works include whether the underlying work is the public domain and whether the changes or additions made are merely trivial variations on the underlying work …",
+ "Copyright laws traditionally have not protected individual recipes. The US Register of Copyrights notes that “mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to protection [unless] [they are] accompanied by substantial literary expression in the form of an explanation … or when there is a combination of recipes, as in a cookbook.” The rationale for this is that an individual recipe is a process of creating something, rather than a creative literary expression …",
+ "Given that the culinary industry and secular law view cooking as a derivative art, the aforementioned Poskim would conclude that there are no grounds for affording copyright protection to the Tove’a’s cuisine and dish presentations.",
+ "However, there are a few authorities who claim that there exists a property right of any expression of wisdom, independent of its recognition by civil law. For example R. Shimon Shkop notes,",
+ "It is agreed according to the law of the Torah (and the laws of the nations) that any individual who invents [creates] something new in this world, he is its owner in every respect and right.",
+ "In another work, R. Shkop argues that if an employee creates a utensil by “the toil of his hands,” this utensil belongs to the employee by dint of the rule yad po’eil ke-yad ba’al habayit, lit. “the hand of the worker is like the hand of the employer.” He concludes that R. Hayyim Soloveitchik of Brisk also espouses this view. Rabbis Naftali Tzvi Berlin, Hayyim Sofer, Elyashiv, Y. Weiss, and Feinstein, have also subscribed to this position. Adopting this approach, in contrast to secular law, Halakha would extend protection to ideas, procedures, processes, methods of operation, etc. As such, a culinary creation would be afforded protection. Even though this is not a creative literary expression, a new dish is nevertheless a new process of creating something and therefore subject to protection.",
+ "However, the majority of Poskim reject the notion that Halakha recognizes copyright as a property right. Firstly, the history of haskamot, i.e., rabbinic approbations given prior to the publication of Jewish books, attests to the fact that the prohibitions on republishing the works invoked in these approbations, as well as the grounds advanced by authorities to protect people’s creative investments, were based on rabbinic legislation, trade guild legislation, custom, civil law, unfair completion, and the like, and not on the idea of copyright.",
+ "Though to the best of our knowledge there is no extant teshuva that addresses the alleged privacy of cuisine and dish preparations, nevertheless, based upon the following two teshuvot we are able to discern how Halakha will address these claims. R. Yehezkel Landau, an eighteenth-century Posek, addressed the following scenario: A scholar paid a publisher to print his commentary alongside the text of the Talmud. Upon completion of the printing process, the publisher kept the typeset characters and used them to print his own edition of the Talmud, without the additional commentary. The scholar argued that since he had paid for typesetting those characters, any accrued profits from this edition should belong to him. On the other hand, the publisher claimed that since he owned the typeset characters, the scholar was unable to recoup the profit from the character layout.",
+ "Relying upon the Talmudic rule that if the publisher derives benefit and the scholar sustained a loss (i.e., zeh nehene ve-zeh haser, hayav), R. Landau argued that since the publisher benefited from the scholar’s payment for the character arrangement, the publisher is obligated to remunerate him for the value of the accrued benefit. In other words, the obligation to provide compensation depends on the fact that one derived benefit from someone’s labor (i.e., the character layout) rather than the fact that it was the publisher’s property. Though he is obligated to compensate the scholar for his use of the character layout, nevertheless, should the publisher accrue any profits from utilizing this arrangement, R. Landau does not mandate that the publisher disgorge his profits. Turning to our scenario, if Halakha mandates responsibility for unjust appropriation of someone’s time and effort in developing a process (e.g., a typesetting layout), a fortiori, it obligates an award in a case of piracy of a culinary dish.",
+ "Approximately a hundred years later, R. Malkiel Tennenbaum, “the Lomza Rov,” responded to the following situation: An individual received a governmental license to sell his newly created product, namely, sweet and fragrant water, and he sold this water with a governmental seal. Should another person sell a similar water composition with such labels, R. Tennebaum contends that it would be a case of unfair competition, and the competitor would be duty-bound to compensate the original seller for any losses incurred by the marketing of this competing product.",
+ "In sum, according to R. Tennenbaum and R. Landau, individuals’ creations and discoveries are protected by indigenous categories of hasagat gevul (unfair economic competition) and zeh nehene ve-zeh haser (loosely translated as “unjust enrichment”) rather than any copyright doctrines such as property rights. Similarly, pirating a novel culinary dish conceptually matches R. Tennebaum and R. Landau’s cases, and would therefore find redress on similar grounds.",
+ "At first glance, given that the damage was only indirect (grama), and there is a ruling that “one who causes indirect damage is exempt from responsibility” (“grama be-nezikin patur”), one might assume that Nitva is exempt from compensating the Tove’a for his losses. According to most authorities, an action is considered to be a direct cause of damage (“garmi”) if the damage caused is instantaneous and inevitable (“bari hezeka”), such as one who destroys someone’s note of indebtedness. However, if the damage is not inevitable or instantaneous, the damage is labeled grama.",
+ "However, it should be noted that there is an authoritative opinion, albeit in variance with the majority view, that there really is no distinguishing characteristic between garmi and grama actions. According to this view, for punitive purposes, i.e., kenas, Hazal classified usual and frequent injuries as garmi, and unusual and infrequent injuries as grama. The underlying reason for attaching responsibility is to deter individuals from harming their fellow men. In this view, the ground for responsibility would be that piracy is an act of hezek, i.e,. damage. Alternatively, deriving benefit from someone else’s asset is akin to theft, and therefore one must pay.",
+ "Given that the panel was unfamiliar with the culinary industry, and pursuant to the requirements of secular arbitration law, the panel hired an independent investigator of the industry in order to ascertain whether cuisine is frequently copied in the culinary industry or whether our case is an isolated incident. Based upon the testimony of the professional expert, as well as the findings in the trade literature, the beit din concluded that such occurrences are commonplace. As such, pursuant to this position, we awarded Tove’a damages for the unjust enrichment and harm incurred by unfair competition.",
+ "2. Protecting a Novel Dish as a Tenai of the Non-Disclosure Agreement",
+ "One of the terms of the non-compete agreement is the following non-disclosure provision:",
+ "Employee acknowledges that it is essential to the success of the Employer that the business and the affairs of the Employer be kept in the strictest confidence. Employee shall not at any time disclose to any person any information (financial or otherwise) relating … to the business or relating to any trade secrets of the Employer, including without limiting the generality of the foregoing, customer lists, information relating to costs, information relating to present and contemplated services and products such as menus, recipes, dish presentations etc …",
+ "Should we view the agreement to preempt the Nitva’s use of the cuisine and/or dish preparations as a tenai (i.e., a condition) of any future employment in the industry, such a condition gives rise to the following issues: (1) davar she-lo ba la-olam (something which is not yet in existence); (2) davar she-ein bo mamash (something lacking physical property).",
+ "Regarding the new food creation, it did not exist at the time of the signing of this agreement. Consequently, though certain recipes and dish preparations were in existence at the commencement of the Nitva’s employment, and are therefore in the category of davar she-ba la-olam, this new dish, which was developed subsequent to the agreement, would be labeled as davar she-lo ba la-olam. On the one hand, such a tenai would be effective only regarding items that existed at the time of the signing of the agreement. On the other hand, the condition would be ineffective regarding the recipe that was developed subsequent to the signing of the agreement. This conclusion is contingent upon the fact that the Nitva would own these recipes and dish preparations. Given that at the time of the signing of the agreement, these items were not in existence, Nitva can therefore never assert ownership over them. However, if he obligates himself to refrain from misappropriating these items, then Halakha recognizes this obligation even regarding instances of items that will surface at a future date. Therefore, Tove’a is entitled to receive compensation for his loss.",
+ "Clearly, a tenai which entails a new dish meets the tangibility requirements and therefore is a davar she-yesh bo mamash. As such, the tenai is valid and Tove’a is entitled to receive compensation for his loss.",
+ "3. The Validity of Undertaking an Obligation Not to Compete",
+ "According to the Halakha of obligations, i.e., hit’hayivut, in order for an agreement to be legally effective, certain language must be utilized in the agreement. For example, the use of language such as “I obligate myself to pay John Doe such and such,” “I undertake to pay … ,” “I am obligated to pay … ,” or “I admit that I am obligated to pay John Doe such and such,” are all terms of undertaking an obligation. The common denominator of these different terms of accepting a commitment is that the person is being meshabed nafshei, i.e., “committing himself” now, by transforming himself into a debtor now. Consequently, a promise to give an object that entails a future action has no legal validity.",
+ "One of the terms of the non-compete agreement is the following:",
+ "Employee hereby covenants and agrees that he shall not for a period of five (5) years following departure from Employer’s employ, directly or indirectly, in any manner whatsoever including, without limitation, or in partnership or jointly or in conjunction with any person, as agent or shareholder, or in any other capacity, carry on or be engaged in such a business in the Orthodox Jewish commercial neighborhood of Milwaukee, Wisconsin.",
+ "The aforesaid provision provides that in the future (“shall”) the Nitva will not open up a competitive business for a period of five years. In terms of hilkhot hit’hayivut, such an undertaking fails to be binding for two reasons. Firstly, in the absence of being meshabed nafshei now, one cannot endow a commitment that will occur in the future with halakhic validity. Moreover, one cannot obligate oneself to refrain from engaging in a certain conduct, i.e., to abstain from opening up a competitive business. To effectively undertake an obligation, there must be an immediate halot. Namely, for a hit’hayivut (and, for that matter, for a transfer of ownership) to be effective, it must be predicated upon a davar she-yesh bo mamash, i.e., something that is tangible, possessing height, width, and depth. Obligating oneself to do something or to refrain from doing something are illustrations of a davar she-ein bo mamash. Hence, this agreement’s provision is ineffective in obligating the Nitva to refrain from opening a business.",
+ "Nonetheless, given that the (albeit improperly drafted) non-compete agreement was a condition of his employment, we can speak of “a meeting of the minds” regarding the impermissibility to open a competitive enterprise, and therefore the agreement is effective. And, in fact, in accordance with certain authorities, one Israeli beit din validated a non-compete agreement for this reason. Alternatively, since this condition was a clause ensconced in his former employment agreement and in exchange for his agreement to be employed and carry out this condition (as well as others) he received wages, he is obligated to comply with the condition. Thirdly, should an individual benefit from what another individual gave him in exchange for refraining from acting in a certatin fashion, he is obligated to comply with this tenai (condition). Finally, assuming civil law will recognize the employment of the word “shall” as denoting an obligation, then Halakha will recognize this agreement as a “kinyan situmta” and it is therefore valid.",
+ "In short, in addition to infractions in the form of unfair competition and unjust enrichment, the Nitva’s piracy of the cuisine and dish presentations were in violation of a tenai memorialized in the non-compete agreement, which proscribed the Nitva from misappropriating the Tove’a’s cuisine and dish arrangements. As such, damages will be awarded.",
+ "4. The Application of Hasagat Gevul",
+ "Even in the absence of a non-compete agreement, we need to examine whether the Nitva is subject to certain restraints based upon the halakhot of hasagat gevul. As Talmud states,",
+ "Rabbi Huna said: If a resident of an alley sets up a hand mill and another resident of the alley wants to set up one adjacent to him, the first has the right to stop him, because he can say to him, “You are interfering with my livelihood.”",
+ "Rabbi Huna ben Yehoshua said: It is quite clear to me … that the resident of an alley cannot prevent another resident of the same alley [from establishing a competing enterprise in his alley].”",
+ "In the pursuance of R. Huna ben Yehoshua’s view, many Poskim rule in favor of the right of free entry of the competing business. Though R. Huna’s opinion is rejected, nevertheless, Aviassaf contends that if a business is situated at the end of a closed alley, a competitor cannot open up a business at the beginning or middle of the alley, lest his positioning in the alley will effectively deprive the other person’s source of income and livelihood whose business is situated at the end of the alley. Subsequent to the Aviassaf, numerous decisors, including Rema, argue that a business that encroaches upon an established firm within an urban neighborhood (and according to certain authorities, within a town) and engages in ruinous competition violates hilkhot hasagat gevul, i.e., unfair competition. In effect, predatory competition is equivalent to setting up a business in an alley that will impede the business venture located at the end of the closed alley. Others contend, pursuant to R. Yosef Karo’s view, regardless of the scope of the encroachment (whether one diminishes another’s profit margins or causes financial ruin), one is permitted to open up a competing enterprise.",
+ "Contrary to the Tove’a’s assertion that the Nitva’s opening of a business has laid the groundwork for his financial ruin, a review of the Tove’a’s business records clearly indicate that his profit margins have only been diminished. Given that the competitor’s entry into the marketplace merely diminished the Tove’a’s profits, we may refrain from resolving whether we accept the approach of Shulhan Arukh or Rema regarding the parameters of restraint of trade. To put it differently, Nitva has not breached his agreement with the Tove’a. Had the Nitva obligated himself, accompanied by a proper kinyan, to refrain from causing consequential damages such as grama and diminishing profits of the Tove’a, he would have been monetarily responsible.",
+ "5. The Legal Enforceability of the Non-Compete Agreement",
+ "One of the provisions of the non-compete agreement is the following:",
+ "In the event that a court of competent jurisdiction finds any restrictive covenant contained in this Agreement to be unenforceable in whole or in part, including without limitation as to duration and/or territory, the parties hereby direct the court to reduce the scope of such provision to that which is reasonable in the circumstances.",
+ "Since the aforementioned term of the agreement has been mutually agreed upon by the parties, generally a beit din must address whether the agreement which was executed in Wisconsin and deals with a Wisconsin business entity, is legally enforceable in a secular court, or whether it would be as a violation of federal law or state law, or contrary to public policy.",
+ "Generally speaking, in common law systems, restrictive covenants are unenforceable. Nonetheless, a non-compete agreement is an exception to the rule provided that the agreement mandates the minimal degree of conduct to protect the employer’s business interest, the restraint does not incur undue hardship upon the employee, and the restraint is not contrary to the public interest. Additionally, Wisconsin law requires that an agreement must provide a reasonable territorial limit and time limit. These requirements have been examined in Wisconsin case law.",
+ "In light of the fact that this panel did not award any monies to the Tove’a relating to Nitva’s entry into the marketplace, we may abstain from deciding whether we need to scrutinize the non-compete agreement from a secular legal perspective and the circumstances serving as the grounds for an arbitration award.",
+ "Decision",
+ "1. Nitva is hereby obligated to pay Tove’a $50,000 for the damages in tort and breach of contract.",
+ "2. All other claims and applications are hereby denied.",
+ "3. Any provision of this decision may be modified with the consent of both parties.",
+ "Final Thoughts",
+ "For additional authorities who validate a non-compete agreement (i.e., an agreement which entails an obligation to abstain from action), see Teshuvot Darkhei Noam, HM 38; Kesef ha-Kodshin, SA, HM 183:4; Teshuvot Maharashdam, HM 274, 370; Teshuvot Maharam mi-Lublin 108; Teshuvot Torat Hessed 228 (Cf. no. 222); Teshuvot Hatam Sofer, YD 9; Teshuvot Mutzal me-Eish 2:11; Teshuvot Shevet ha-Levi 4:220; Teshuvot Netzah Yisrael 42; Teshuvot Minhat Yitzhak 6:170 (18) in the name of Maharashdam."
+ ],
+ "d) Promises! Promises! The Validity of a Real Estate Binder Agreement": [
+ "D. Promises! Promises! – The Validity of a Real Estate Binder Agreement",
+ "Facts",
+ "A real estate binder agreement was signed by the parties regarding the purchase of a property in New Jersey. As memorialized in the agreement, certain conditions, such as ten-day attorney review, would have to be complied with prior to drafting the real estate contract. The parties agreed that the conditions had been obtained. However, the buyer (hereafter: Nitva) subsequently withdrew his offer to purchase the property. The matter was submitted to beit din for resolution.",
+ "Tove’a’s Claims",
+ "Admittedly, no detailed contract of sale was executed between the parties. Nevertheless, the seller (hereafter: Tove’a) argues that their real estate binder agreement should be viewed maximally as a preliminary agreement where the conditions had been obtained and therefore should be binding. Moreover, upon compliance with the conditions in the agreement, and relying upon Nitva’s readiness to execute the purchase, the Tove’a purchased another piece of real estate that was underwritten by a mortgage. The Tove’a claims that he does not have the financial wherewithal to own two pieces of real estate simultaneously and that he is incurring financial losses. Consequently, Nitva’s decision to withdraw his offer to purchase the property has caused him financial harm, and Nitva should therefore be responsible to compensate for his losses. Finally, unable to purchase some securities due to the breach of the promise, Tove’a contends that Nitva ought to be responsible for Tove’a’s failure to profit from anticipated securities investment.",
+ "Nitva’s Claims",
+ "In reply to Tove’a’s arguments, Nitva claims that the agreement to purchase was at best only a promise that contemplated the signing of a more detailed formal contract. Therefore, even though all the conditions of the agreement were obtained, he nevertheless had the option to withdraw from the deal and lose the earnest money, i.e., the money that serves as a security deposit to hold the property for the purchaser. Moreover, he never thought that the deal would fall through and therefore never contemplated that he would have to pay the earnest money. Furthermore, the fact that Tove’a undertook certain financial commitments that he cannot meet and that Tove’a failed to profit from certain investments is not Nitva’s responsibility.",
+ "Discussion",
+ "1. Does a Real Estate Binder Agreement Constitute a Halakhically Bona Fide Offer to Purchase Property or Not?",
+ "Conventionally, upon reaching an oral agreement regarding the purchase of real estate, both parties sign a broker-prepared real estate binder that is subject to attorney review. The binder specifies the buyer and seller, and describes the property being sold. The agreement is an offer to purchase this real estate under certain conditions under which the seller would be willing to sell the property. These conditions include the specific purchase price, inspection, property conditions, and financing arrangements. These conditions are contingencies that allow the potential purchaser to walk away from the agreement if all of the conditions are not met by the purchase date. The agreement was signed by both parties and was accompanied by earnest money. If the seller accepts the offer, the earnest money is held in escrow. When the transaction is finalized, the deposit is applied to the buyer’s costs. If the offer is rejected, the earnest money is returned to the buyer, since no binding contract has been executed. Should all the conditions be met and the potential buyer withdraw his offer, he loses his deposit. Though the agreement contemplates the possibility of the parties signing off on a formal written contract, nevertheless by signing this retainer agreement, the parties are obligating themselves to finalize the sale contingent upon certain conditions being satisfied. As the real estate binder agreement states, it is “an offer to purchase.”",
+ "A. Is it a Halakhically Binding Hit’hayivut in Terms of the Halakhot of Hi’yuvim?",
+ "This agreement will be examined from two diametrically opposed perspectives: the offer to purchase as a halakhically binding hit’hayivut, obligation, and as a halakhically binding agreement based upon civil law.",
+ "From the perspective of the rules of hit’hayivut, a real estate binder, which entails an offer to purchase, is an obligation between parties to behave in a certain manner in the future, which has been characterized by the Talmud as a kinyan devarim. For a bona fide hit’hayivut, there is a requirement that the matter be “davar she-yesh bo mamash” (something with substance). An offer to purchase is a promise at a future date rather than a “davar she-yesh bo mamash.” Additionally, one cannot undertake an obligation if it is a “davar she-lo ba la-olam,” something not yet in existence. One cannot transfer ownership of a property that would be purchased in the future. Again, the obligation is predicated upon a halot, a legal status of something that has a physical property. The halot condition is not obtained with a property that is being offered for purchase at a future date. In short, even if the conditions as set out in the binder agreement were met, refusal of the Nitva to follow up with the sale of the property cannot be enforced by a beit din.",
+ "Nonetheless, Nitva has a halakhic-moral duty to keep his word to purchase the property. The consequences of reneging upon a promise are stated in Shulhan Arukh and Rema in the following fashion:",
+ "When one conducts and concludes commercial transactions using words only (without a formal act of acquisition), that person should stand by his word, even though none of the purchase price has been taken, nor a buyer’s mark made on the goods … Whoever withdraws from this type of transaction, whether buyer or seller, is deemed a faithless person.",
+ "Rema: a person should stand by his word even though no act of acquisition has been performed, and only mere words have passed between the parties …",
+ "Where no payment has been made, and the seller articulates an oral commitment to sell real estate (karka) or chattel (metaltelin) to a prospective buyer, and should either party renege on the agreement of sale, he is stigmatized as a mehusar amana (lit. “lacking trustworthiness”). Given that no kinyan, a symbolic act undertaking an obligation, has been executed between the parties, technically either party may withdraw from consummating the sale. Compliance with the promise is unenforceable. Enforceability depends upon the execution of a kinyan. Nevertheless, the individual who reneges from his commitment may be labeled a transgressor (avaryan) and publicly shamed by the community, and has violated minimally a rabbinic issur provided that the parties mutually agreed upon the selling price of the item. This conclusion applies even if the promise is memorialized in a written agreement that does not comply with certain formal requirements, such as a promise to pay for a “davar she-lo ba la-olam” (something not yet in existence) or the absence of a kinyan. In short, absent a halakhically enforceable obligation, the beit din will not enforce his halakhic-moral duty to comply with his promise. Consequently, in terms of hilkhot hi’yuvim, Nitva would lose his security deposit.",
+ "B. Is This Halakhically Binding as a Kinyan Situmta?",
+ "According to the majority of Poskim, a contract that entails the sale of real estate will be recognized by dint of the fact that this is the commercial practice for transferring ownership from one person to another. In halakhic parlance, this is known as a kinyan situmta. This type of contract has been recognized for centuries and in contemporary times, provided it is valid and enforceable in the eyes of secular law. In the absence of a signed contract, many Poskim have recognized the agreement as “an obligation to sell and purchase,” which would be enforceable by a beit din rather than as a contractual obligation to actually transfer property ownership. In other words, for the property to be transferred, the agreement must be a kinyan situmta, namely, recognized as legally effective by New York law.",
+ "The question is whether a real estate binder agreement, which is an offer to purchase, is viewed as a halakhically bona fide contract, like a real estate sale contract. If it has the same status as any real estate contract, then if the conditions have been obtained as outlined in the binder agreement, the seller is obligated to sell and the buyer is obligated to purchase. Halakhically, whether a real estate binder agreement is binding upon the parties depends on whether the locale in which this preliminary agreement was entered has a common minhag (custom) of accepting the validity of such documents. If so, one may conclude that it is binding based on kinyan situmta. For the minhag to be efficacious there is a threshold requirement that it must be widespread and practiced at least three times. In effect, frequently the minhag is reflective of the governing civil law.",
+ "Alternatively, R. Hayyim Rapaport observes, the norms of secular law determine the expectations of the parties (i.e., umdana) with respect to the binding nature of an agreement, and if the parties expect an agreement to be binding, then they are bound to its provisions.",
+ "Finally, in the absence of a minhag or an umdana, Talmud, as well as most authorities, validates a preliminary agreement.",
+ "In our case, the minhag or umdana regarding the expectation of the parties can be ascertained by an inquiry into the common commercial practice and secular law governing the acceptance of preliminary agreements. New Jersey case law validates such preliminary agreements under the following condition: The question is whether the parties intended to be bound at the time they reached an oral or written preliminary agreement, or only at the time the formal contract was signed. Assuming, upon scrutiny of the facts, that the intent of the parties was to be bound with the signing of the real estate binder agreement, the parties are considered to be “under contract” for the real estate sale. This reasoning is more fully developed in New York’s Second Circuit and Second Department.",
+ "To state our conclusion somewhat differently, even though the binder agreement neither comports with the requirements of a hit’hayivut nor complies with the technical requirements that the paper and ink of the agreement must belong to the Seller, nevertheless it is enforceable based upon kinyan situmta.",
+ "In our scenario, we are dealing with a binder agreement that is an example of a preliminary agreement regarding a price to purchase a specific piece of property. Given that the conditions of the binder agreement were obtained, the buyer’s decision to renege on his commitment has halakhic as well as legal consequences, namely that Nitva loses his security deposit.",
+ "Seemingly, given that Nitva did not expect to pay the security deposit, the transaction lacks the requisite gemirat da’at, a commitment that was made with firm intent to remit the earnest money. To state it differently, this transaction is characterized as an asmakhta – an agreement that lacks a presumption of firm resolve on the part of the obligator. The possibility that the purchase would fail to materialize never entered the Nitva’s mind, thus the contract is void, ab initio.",
+ "Nonetheless, if the commercial practice is to establish such a penalty, then we presume that one did intend to follow through and pay the monies should the contract fail to materialize. For example, in return for a premium payment, an insurance company promises to reimburse the insured for the loss. Given that such an arrangement reflects common commercial practice, asmakhta will not be a factor invalidating the insurance contract. Similarly, the requirement of a security deposit upon signing a binder agreement is common practice in the real estate and therefore does not run afoul of the strictures of asmakhta.",
+ "On the other hand, based upon the fact that the agreement was subject to attorney review, the intent of the parties was not to be bound by the real estate binder agreement.",
+ "2. Nezikin Claims Due to Reliance upon Promise",
+ "A. Tove’a’s Undertaking the Purchase of a Second Home",
+ "Relying upon Nitva’s readiness to execute the purchase, the Tove’a purchased another piece of real estate that was underwritten by a mortgage. The Tove’a argues that he does not have the financial wherewithal to own two pieces of real estate simultaneously and is incurring financial losses. Consequently, Nitva’s decision to withdraw his offer to purchase the property has caused him a financial loss and therefore Nitva should be responsible to compensate for his damages.",
+ "Rambam states,",
+ "My teachers have ruled that if it is the custom of the land that each man (when betrothed) should make a feast for his friends or distribute money to the religious functionaries of the community, and he follows the custom of all people and then she retracts, she must refund his expenses, because she caused him to spend his money; and whoever causes another to lose money must pay for it.",
+ "In a critical annotation on this ruling, Ra’avad demurs,",
+ "… . I do not concur with his teachers regarding this matter. That indirect causation is akin to seeds in the garden that did not grow, regarding which one pays (only) the expenses. The principle of the matter is: loss of money committed by the owner of the money, even though someone else caused him (to incur the loss), that person is exempt from liability.",
+ "In other words, whereas according to Rambam, breach of a promise to marry is actionable, according to the Ra’avad, damages are not recoverable. Consequently, some authorities contend that Tove’a’s ability to recover losses incurred by undertaking to acquire a second home is dependent whether one endorses the view of Rambam or of Ra’avad. While a minority of Poskim agrees with Ra’avad, most authorities, including Shulhan Arukh, concur with the position of Rambam. Among the reasons for requiring nezikin (tort) liability suggested by the Poskim is the immediacy and direct nature of the harm (bari hezeka) and the injured party’s reliance upon the mazik (tortfeasor).",
+ "Applying Rambam’s position to our scenario, clearly there is direct link between the Nitva’s failure to keep his promise and the Tove’a’s decision to embark on the purchase of a second property. In fact, Tove’a should have realized that a formal written contract had to be prepared and accepted by Nitva prior to arriving at the conclusion that this was “a done deal.” If someone promises another that he will do something for him, and relying upon this assurance, he expends monies, and subsequently the promisor retracted his offer, Maharik and Sefer ha-Mikneh conclude that the promisee must sustain the loss due to the fact that he should have contemplated that the promisor may change his mind. Similarly, in our case, Tove’a should have foreseen the possibility that the deal may fall through, a frequent occurrence in real estate matters.",
+ "B. “Mevatel Kiso shel Haveiro” – Tove’a’s Inability to Fund a Securities Investment",
+ "Unable to purchase some securities due to the breach of the promise, Tove’a contends that Nitva ought to be responsible for Tove’a’s failure to profit from anticipated securities investment.",
+ "Assuming Nitva undertook the obligation to assume the losses and provided that the obligation does not run afoul of asmakhta by undertaking an obligation that is exaggerated, such an agreement would be valid. Some Poskim require that the agreement be in writing.",
+ "Absent the Nitva undertaking an obligation, the fact remains that if the Tove’a relied upon the fact that his losses would be covered, Nitva would be responsible. Responding to the Tove’a’s claim, the Talmud Bavli teaches us,",
+ "If someone gives money to his friend to serve as his agent to go and purchase wine for him during the season when the price is low, and the servant was negligent and failed to buy it, he must pay him for the wine at the low price.",
+ "In our case, the promise (Tove’a) relied upon the promisor (Nitva) and incurred a loss. The Talmud concludes that Nitva is responsible to compensate for the losses that were suffered.",
+ "The rationale for compensation expounded upon by Ra’ah is the following:",
+ "Here (Bava Metzia 73b), even though the agent did not contractually agree to assume liability [for failure to fulfill his promise], since the principal gave him money with which to purchase merchandise, and the principal would have either purchased it himself or arranged for another to do so had not the agent promised to do so, and the principal relied upon him and gave him the money based upon the reliance, for that reason the agent is liable to pay the loss caused by the reliance on his promise.",
+ "As explained elsewhere,",
+ "Ra’ah’s position contains four propositions. The first is that one does not require an agreement that explicitly stipulates that consequential damages are recoverable. The second proposition is that in the absence of such agreement, by giving money to the agent to effectuate a wine purchase at a location where the selling price was lower than others, the promisee relied upon the promisor’s compliance. The third proposition is that the words of the promisor serve as the act of inducing reliance by the promise. Moreover, in the context of Ra’ah’s posture more importantly, it is the be-hahi hana’a (i.e., because of the benefit created by the induced reliance that establishes a surety relationship between the two parties) he undertakes the obligation, and therefore the promise becomes halakhically binding upon the promisor and enforceable in a case of breach.”",
+ "It is the halakhic norm of an arevut, i.e., a guarantee, rather that the halakhic norm of promise keeping, which endows validity to the agreement. Conventionally, should the borrower default on his loan, the arev undertakes the obligation to pay the lender. Here, we are applying the institution of arevut in a non-loan transaction in order to transform a promissory obligation into a halakhically-legally enforceable duty. The breach of the promissory obligation is contingent upon the fact that the promisor induced someone to rely on his promise. Just as a guarantor’s obligation to compensate is created by the trust that is engendered by the creditor’s conviction that the guarantor will compensate him in case of a borrower’s default upon a loan, analogously, should an individual be negligent and fail to purchase wine at a lower price for another person as he promised, akin to an arev he is liable to indemnify him for any ensuing loss. Since the Ra’ah’s time, there are a few authorities who subscribed to his approach of a promissory obligation based on detrimental reliance grounded in hilkhot arevut and awarded damages for a loss of profits.",
+ "For most authorities, the compensation resulting from reliance upon the promise is due the fact that the Nitva explicitly agreed at the time of the agreement to reimburse the promisee for any harm resulting from failure to finalize the wine purchase. Reliance upon an oral promise without providing such a stipulation does not engender financial liability. Hence, in our case, Nitva promised to buy the property without agreeing to reimburse for any loss resulting from breaking his promise and therefore should be exempt from any of Tove’a’s losses pertaining to his inability to invest in the securities market.",
+ "Moreover, for many, where the profit is speculative such as investment in securities, there is no recovery for lost profits. As the Talmud Yerushalmi states,",
+ "Rabbi Yitzhak says: Someone who prevents his friend from making a profit (mevatel kiso shel haveiro) has only a grievance.",
+ "Given that the preclusion of profit is illustrative of a case of grama, i.e., indirect harm, and one is exempt for such conduct, the injured party has no grounds for recovery. Consequently, in our case, Tove’a’s claim to recover lost profits lacks foundation.",
+ "Finally, even for those Poskim who would subscribe to the Ra’ah’s position, his view is predicated upon engendered trust that caused the Tove’a, the seller, to rely upon the Nitva’s promise to purchase. But, Tove’a should have foreseen the possibility that the deal may fall through, a frequent occurrence in real estate matters, and he therefore should have refrained from undertaking other financial deals. To state it differently, there were no grounds for the Tove’a to rely upon the Nitva’s promise. It is a case of misplaced trust. Therefore, there is no foundation to the Tove’a’s claims to recoup any financial losses that were caused by his actions rather than driven by the Nitva’s promise.",
+ "Decision",
+ "1. Nitva loses his security deposit.",
+ "2. Nitva is not obligated to pay Tove’a the profit losses incurred by him."
+ ],
+ "e) Real Estate Brokerage Agreement": [
+ "E. Real Estate Brokerage Agreement",
+ "Facts",
+ "In July 5, 2008, Levi Meyer (hereafter: Tove’a), a New Jersey licensed real estate broker, entered into an exclusive brokerage agreement, known professionally as a listing agreement, with Michael Miller (hereafter: Nitva) for the sale of his property located at 9 Meadow Lane, Paramus, NJ. The expiration date of the agreement was January 23, 2009. Pursuant to the agreement, should Tove’a find a buyer, he would be entitled to a six percent commission. Tove’a found a ready, willing, and able buyer for the property, and Nitva accepted an offer from Fred Nevins to purchase the aforesaid property, only to later find out that Nevins withdrew his offer. Unbeknownst to Tove’a, Israel Levy, another broker, showed the property to a third party and subsequently, Nitva sold the property to the third party on February 29, 2009. Though Nitva paid Levy a commission for the sale, Nitva refused to remit a commission to Tove’a.",
+ "Tove’a Claims",
+ "Tove’a argues that he is entitled to his commission for three reasons: (1) Tove’a found a ready, willing, and able buyer for Nitva; (2) Pursuant to the agreement, if said property is sold to a third party by anyone else, Tove’a remains entitled to receive commission; (3) Since the offer from Nevins was accepted by Nitva, and negotiations between the Nitva and Nevins extended beyond the expiration date of the listing agreement, therefore in accordance with the provisions of the listing agreement, the brokerage commitment is extended for an additional three months. Given that the sale to Levy transpired during this three month extension, Tove’a earns his commission.",
+ "Nitva’s Reply",
+ "In reply to Tove’a’s claims, though there was a ready, willing, and able buyer to purchase his property, and Nevins’ offer was signed and accepted, nevertheless, since the prospective buyer failed to execute a contract for sale with Nitva, Tove’a is not entitled to a commission. Secondly, in pursuance of the terms of the agreement, if a third party brokers the sale, the Tove’a fails to receive his commission. Finally, even though Nevins and Nitva admittedly executed an acceptance offer, nonetheless, subsequently, prior to the lapse of the listing agreement, Nevins requested certain modifications concerning the terms of the sale and additions regarding the property, and Nitva notified Nevins that he no longer wanted to sell to Nevins.",
+ "Discussion",
+ "1. The Validity of the Listing Agreement: A Bona Fide Shtar or a Kinyan Situmta?",
+ "The real estate agreement reads as follows:",
+ "… In consideration of a Broker’s listing and endeavoring to sell the property, Owner grants to Broker the exclusive right to sell the property at the price and upon the terms set forth herein or at such price or terms upon which Owner may agree …",
+ "Upon the procuring of a Purchaser of the property during the term of this listing, Owner agrees to pay a Broker a commission of six per cent of the selling price. Broker’s commission shall be considered earned if the sale of the property is effected by Broker, by Owner, or by any third party during the term of this listing …",
+ "The term of this listing shall be extended by the period of time commenced by the date that the Owner accepts any offer presented by Broker for the property and ended by the date that negotiations with respect to such offer terminate. If negotiations with respect to an accepted offer terminate after the listing termination date set forth above, then the term shall be further extended by a period of three months from the date that such negotiations terminate …",
+ "This Agreement expresses the entire agreement of the parties with respect to the subject matter hereof … shall be governed by New Jersey law …",
+ "Both Tove’a and Nitva signed off on the real estate brokerage agreement.",
+ "According to the Halakha of obligations, i.e., hit’hayivut, in order for an agreement, including but not limited to a real estate agreement, to be halakhically effective, certain terminology must be utilized in the agreement. For example, the employment of the terminology, “the Owner undertakes to pay,” or “the Owner obligates himself to pay,” are terms of undertaking a financial commitment that would be enforceable in beit din. Hence, employment of terminology in the listing such as, “Owner may agree” and “Owner agrees,” which entails a future activity, is in halakhic nomenclature, a “kinyan devarim” and has no enforceability.",
+ "Minimally this listing agreement is an example of a kinyan situmta, i.e., a mode of undertaking an obligation recognized in commercial practice. Kinyan situmta is not only recognized as a vehicle to transfer assets, i.e., hakna’a, such as a real estate contract, but also as a means for undertaking obligations, i.e., hit’hayivut, such as an employment contract or a business partnership agreement. A real estate brokerage agreement entails a hit’hayivut and is an example of one of the many contracts that is halakhically recognized. Its validity is predicated upon the fact that it has been legally drafted properly and is enforceable according to civil law. A review of the terms of this listing agreement shows that it has been written in proper legal form and will be enforceable in civil court.",
+ "Moreover, in accordance with this agreement, any questions regarding interpreting its terms are to be resolved by applicable New Jersey law. Lest one challenge the basis for resolving halakhic questions in accordance with civil law, the Talmud instructs us that the operative rule in the context of monetary affairs is that “an individual may stipulate contrary to what is written in the Torah.” As such, since both the Tove’a and Nitva agreed that any differences regarding the agreement are to be resolved by applying the norms of NJ law, their agreement is a private arrangement that Halakha recognizes. Halakha will therefore resolve the differences between the parties in accordance with the dictates of civil law.",
+ "We now proceed to ascertain how NJ law has addressed the issues emerging from this dispute. In our scenario, though the Tove’a had produced a prospective buyer ready, willing, and able to purchase in accordance with the terms set by Nitva, nevertheless, no binding contract of sale between the Owner and the prospective buyer had been finalized. Consequently, Nitva contends that he is exempt from paying a real estate commission to the Tove’a.",
+ "In the absence of a broker’s agreement to the contrary, some NJ courts rule that a broker earns his commission by producing a ready, willing, and able buyer. In the event that there is a provision in the listing agreement that the commission would be “remitted on closing” or “payable when the time passes,” such provision is to be understood as determining the time of the payment of the commission rather than as a prerequisite to the broker’s entitlement to the commission.",
+ "Accordingly, if a broker produces a ready, willing, and able purchaser who agrees to buy the property on mutually satisfactory terms with the seller and enters into a sales contract with him, the broker is entitled to his commission.",
+ "However, the majority of NJ courts endorse the Ellsworth Dobbs, Inc. v. J. Johnson and A. Johnson holding which states,",
+ "When a broker is engaged by an owner of a property to find a purchaser for it, the broker earns his commission when (a) he produces a purchaser ready, willing, and able to buy on the same terms, fixed by the owner, (b) the purchaser enters into a binding contract with the owner to do so, and (c) the purchaser completes the transaction by closing the title in accordance with the provisions of the contract. If the contract is not consummated because of the lack of financial ability to perform or because of any other default of his … there is no right to commission against the seller.",
+ "To this very day, NJ continues to subscribe to this position. Based upon the foregoing, since a sales contract was never consummated between the Nitva and Nevins, Tove’a is not entitled to his commission.",
+ "Additionally, based upon his understanding of one the agreement’s provisions, Nitva contends that Tove’a is not entitled to his commission from the sale of the property to Levy by another broker. As the agreement states,",
+ "Upon the procuring of a Purchaser of the property during the term of this listing, Owner agrees to pay a Broker a commission of six per cent of the selling price. Broker’s commission shall be considered earned if the sale of the property is effected by Broker, by Owner, or by any third party during the term of this listing …",
+ "In other words, Nitva argues that if a second broker introduces the Nitva to a prospective buyer and facilitates the sale of the property, only the second broker earns the commission. Such an interpretation of this provision is predicated upon the contention that the phrase, “if sold to a party who was introduced to the property during the term by broker” is modifying not only the case of a sale “after its termination” but also the case of sale “during the term of the listing.”",
+ "Such an interpretation ignores the earlier part of the clause – “if the sale is effected … by any third party” – and the clear intent of the provision to give Broker A, namely the Tove’a, an exclusive brokerage agreement during the term of the signed listing agreement. The fact that the owner, namely the Nitva, was required to pay a commission to Broker B does not reduce his obligation to Broker A, namely the Tove’a. Nitva could have protected himself either by renegotiation with Broker A prior to the sale, or by refraining from selling until the lapse of the brokerage agreement. He did neither.",
+ "Such a conclusion would be equally forthcoming according to the canons of halakhic interpretation of agreements. If one has a doubt regarding language employed in an agreement, then if there is an umdana, i.e., common sense meaning, to the benefit of one of the parties, we follow the umdana. In our scenario, clearly it is to the benefit of the Tove’a to negotiate an exclusive brokerage agreement whereby if another broker sells the property to a third party unbeknownst to him, he still earns a commission. Secondly, even if assume that that there are two differing interpretations of this clause, one which benefits the Tove’a and another which benefits the Nitva, yad ba’al ha-shtar al ha-elyona, the document is construed in favor of the drafter, namely the Tove’a.",
+ "Given our understanding of the aforementioned clause, the question remains whether the Tove’a is in actuality entitled to his commission on the sale of the property to Levy. Nitva sold the property to the third party on February 29, 2009. The prerequisite for an earned commission is that the sale transpired during “the life of the agreement.” In our instance, the agreement expired on January 23, 2009, so seemingly Tove’a should be denied his commission. Nevertheless, invoking one of the clauses of the agreement, Tove’a argues that he is still entitled to his commission. As the provision states,",
+ "The term of this listing shall be extended by the period of time commenced by the date that the Owner accepts any offer presented by Broker for the property and ended by the date that negotiations with respect to such offer terminate. If negotiations with respect to an accepted offer terminate after the listing termination date set forth above, then the term shall be further extended by a period of three months from the date that such negotiations terminate …",
+ "Clearly, during the time of the listing agreement, there was an offer by Nevins that was accepted by Nitva. However, subsequently, there is a paper trail corroborating that Nevins had second thoughts regarding his offer. Nevins requested that Nitva add certain additions to the property and requested certain financial accommodations prior to signing the contract for sale. Due to these requests for modification of the original offer, Nitva orally communicated to the Tove’a that he no longer was interested in selling the property to Nevins. Tove’a claims that negotiations between Nitva and Nevins continued. However, he was unable to produce any documentation corroborating his claim. Given that Nitva produced a paper trail indicating that Nevins had retracted from the original offer and the Tove’a was unable to show that negotiations continued, the three-month extension of the listing agreement based upon an accepted offer was inapplicable to our case at hand. Hence, had the listing agreement been extended to April 23, 2009, then Tove’a would have been entitled to a commission based upon the sale on February 29, 2009. Based upon the cumulative evidence that the negotiations had ceased between the Nitva and Nevins prior to the expiration date of the listing agreement, there are no grounds to extend the term of the brokerage agreement. Therefore, there are no grounds for Tove’a’s entitlement to a real estate commission.",
+ "Decision",
+ "Nitva is hereby not obligated to pay a commission to the Tove’a.",
+ "Final Thoughts",
+ "Assuming the parties had negotiated the terms of their agreement orally and subsequently there was a dispute regarding the terms, how would Halakha address the current claims advanced by the Tove’a and Nitva? In the absence of a written or verbal agreement to provide services, Rema rules,",
+ "If one performs an action or benefit for his friend, [the friend] cannot say that it was done gratis since he never told him to do it, and he must compensate him.",
+ "Numerous Poskim endorse Rema’s posture, contending that an individual is entitled to a fee for services rendered whether he was duly empowered by another to perform these actions, or whether he performed these services on his own initiative, provided that the beneficiary of the work did not tell him to stop or communicate to him that he would not receive remuneration for his services. The obligation to pay a commission exists regardless of whether the broker incurred actual expenses or not. His time investment may serve as the sole justification of compensation for his services. As we may infer from Rema’s words, “If one performs an action or benefit for his friend …” Rema’s words clearly inform us that remuneration is based upon “an action or benefit,” rather than linked to an outlay of expenses.",
+ "Even if the broker acted on his own initiative or at the behest of a seller, but failed to execute a kinyan to demonstrate that both parties resolve that the broker has been hired to perform certain services, nevertheless, by dint of benefiting from his services, the seller must pay. As Rav Hai Gaon exclaims,",
+ "Is it possible that all employees and brokers require a kinyan? Rather, the benefit that [the employer] receives because [the employee] works for his needs, he undertakes to obligate himself.",
+ "In fact, according to certain authorities, a broker is viewed as an agent, and as such there is no requirement to execute a kinyan.",
+ "Moreover, even if the seller expressly states that he does not want a broker or refuses to pay him, if he subsequently benefits from the broker’s work, he is obligated to pay him. As one beit din states,",
+ "The act of sale was facilitated by the broker they wanted, and they themselves are deriving benefit from it, yet they are unwilling to pay for the brokering efforts … and they must pay the broker his commission even though they refuse to pay …",
+ "Alternatively, as contended in a recent Israeli beit din decision, if the minhag as reflected in the prevailing law is to remit compensation for brokerage services, then there is a tacit assumption between the parties that the broker is entitled the market fee for his services.",
+ "The question is at what point is a broker entitled to receive his commission? Assuming that a contract of sale was executed between the parties and subsequently, prior to the closing, the prospective buyer had a change of heart, is the broker entitled to his commission? Addressing this scenario, Rabbi Arye Balchover concludes,",
+ "Since the actual act [of closing] did not transpire he can change his mind and refrain from the purchase. Therefore he is exempt from paying him … and the assumption is that he did not obligate himself unless the transaction was finalized.",
+ "Such an approach, which requires both the execution of a contract for sale as well as an actual closing, resonates in the rulings of others. However, there are others who contend that the actual closing is not determinative of whether the broker earns his commission. For example, if prior to the closing, both parties decide to withdraw from the deal, the broker is entitled to receive his commission. On the other hand, if the change of heart is due to mekach ta’ut, an error in the transaction such as if the foundations of the home are not sturdy, then the broker will not receive his fee. Since the broker was unable to finalize the deal due to a defect in the physical integrity of the property, the seller is exempt from paying him a commission. In such circumstances, even if the broker received the commission, he must return the fee to the seller.",
+ "Alternatively, the time of a commission payment is dependent upon minhag ha-soharim, commercial practice. If the prevailing practice is that the broker’s fee is payable upon closing the deal, then and only then is the seller obligated to pay. However, if the custom is that the fee for services is contingent upon a broker identifying a willing, able, and ready purchaser, then remittance is due upon the execution of a contract for sale. In eighteenth-century Izmir, Turkey, the minhag was that if the broker procured a buyer and the closing was cancelled, absent any mutually agreed imposition of a penalty for the cancellation, the broker is not entitled to his fee. On the other hand, if the agreement stipulated a penalty for withdrawing from a contract for sale, then the broker is entitled to a commission from the party who defaulted on the deal. However, if the agreement between the parties differs from minhag ha-soharim, the agreement trumps minhag ha-soharim and the terms of the agreement are determinative.",
+ "In short, in the absence of a written agreement to the contrary, a broker’s fee in NJ is payable upon the execution of a contract for sale either based on minhag ha-soharim, which is reflective of state law, or based on the aforesaid rulings that argue that a broker’s job is completed upon the completion of the work, i.e., either the sale of the property or the actual closing.",
+ "Finally, there was discussion regarding the varying understandings of a particular clause of the agreement over whether the Tove’a is entitled to his fee if another broker had showed the property to a third party and the party subsequently purchased the property from the Nitva prior to the expiration of the listing agreement. Due to the vagueness of this provision as well as others, Nitva contends that he did not understand some of the terms of the agreement and he therefore should not be responsible to pay any commission to the Tove’a. Relying upon precedent, in a recent NJ case, the court states,",
+ "The law will not make a better contract for parties than they themselves have seen fit to enter into … The judicial function of a court of law is to enforce a contract as it is written. Kupfersmith v. Delaware Insurance Co., 84 NJL 271 (1913) … Burying one’s head in the sand might be a strategy for signatories to contracts, particularly in the absence of any evidence that was coercion or undue influence in the procurement of defendant’s execution of the agreement.",
+ "This civil recognition that “ignorantia legis neminem excusat” (lit. “ignorance of the law does not excuse”) resonates in Halakha. Addressing a scenario of a party who signed off on a document and subsequently advances the plea that he isn’t literate in the language of the document, Rashba rules that his signature obligates him to the agreement’s terms because there is a presumption that he read it prior to signing or that he relied on others to explain to him the terms prior to affixing his signature to the document. This approach that ignorance of Halakha is no defense is endorsed by Shulhan Arukh and Rema. Under certain extenuating circumstances, such as an individual who, for emotional reasons, cannot relate to what is written, such as a bride regarding a ketuba, the claim that one failed to comprehend or foresee what he was signing is a defense. In our case, Nitva was neither emotionally distraught nor were the agreement’s terms unforeseeable.",
+ "We have concluded that Nitva is not obligated to pay a commission, and therefore Nitva’s claim that the rate of commission is too high is irrelevant to our judgment. Nevertheless, we will reply to Nitva’s contention. Rabbi Ya’akov ha-Levi Ettinger of seventeenth-century Salonika contends that the resolution of this matter is contingent upon the scope of the Talmudic rule dina de-malkhuta dina, the law of the kingdom is the law. The question is whether the regulation of real estate matters can be validated based upon this rule. As Rabbi Ettinger elucidates, this question depends on whether we accept Rema’s view or the Shakh’s position regarding the parameters of this rule. In Rema’s opinion, all matters may be subsumed under the rubric of “le-takanat ha-medina,” which is understood by Rema as referring to any issues relating to social interaction. Vigorously disagreeing with Rema, Shakh contends that if a particular secular law contradicts Halakha, dina de-malkhuta will not govern. In our scenario there is no conflict between Halakha and NJ case law regarding this matter. Both legal systems argue that the fee for a broker’s services is reflective of minhag ha-soharim. NJ commercial practice is that the fee is negotiable, and the parties agreed upon a six percent commission, a rate that frequently is negotiated for such a property. In fact, throughout the lands of our dispersion, whether it was sixteenth- and seventeenth-century Salonika, seventeenth-century Egypt, nineteenth-century Galicia or twentieth-century Israel, Poskim utilized minhag ha-soharim as the guideline for validating the rate of a brokerage commission."
+ ],
+ "f) Dual Real Estate Commission, Illegal Contracts, and Civil Law": [
+ "F. Dual Real Estate Commission, Illegal Contracts, and Civil Law",
+ "Century Realty Agency v. Aaron Levy",
+ "Facts",
+ "Century Realty Agency (hereafter: Tove’a), a New York licensed real estate brokerage agency located in Monticello, NY that is owned and managed by a Torah observant Jew, entered into an exclusive written brokerage agreement with Simcha Cohen (henceforth: the Seller), whereby Tove’a would show commercial properties for sale by the Seller, and upon procuring a ready and willing buyer, Tove’a would receive a 6% commission from the Seller. Additionally, unbeknownst to the Seller, Tove’a executed a written agreement with Aaron Levy (hereafter: Nitva) whereby, the Nitva would remit a 6% commission to the Tove’a should he, the Nitva, purchase the property from the Seller. Though Tove’a failed to sign off on the real estate commission agreement, Nitva signed off on the agreement.",
+ "Nitva’s offer to purchase the property was accepted by the Seller. At the closing, the closing documentation stated that the Seller had remitted the commission to Tove’a. Moreover, at the time, Nitva’s attorney for the closing communicated to the Tove’a that his client would not be paying any additional commission to the Tove’a.",
+ "The matter was submitted to beit din for resolution.",
+ "Tove’a’s Claims",
+ "Admittedly, Tove’a failed to sign off on the commission agreement. However, since Nitva signed off on a written agreement that he would remit a second commission regarding the purchase of the property, he is bound to the terms of the agreement, and therefore Nitva is obligated to remit the second commission. Even though Tove’a failed to sign off on the agreement, Nitva is not exempt from paying, because at the time of the agreement, Nitva shook hands with the Tove’a, in effect acknowledging his obligation to pay the commission.",
+ "Nitva’s Claims",
+ "Admittedly, he signed off on the real estate commission agreement. However, given that Tove’a did not sign off, he is not legally bound to remit the commission. Moreover, Nitva argues that he shook Tove’a’s hand out of courtesy, namely, as an acknowledgement to the real estate agency for the brokerage services provided, rather than as a means of acknowledging that he will remit a commission to Tove’a. In addition, at the time of the closing, Nitva’s attorney communicated to the Tove’a that his client would not be paying a second commission.",
+ "Finally, since the property was located in New York, New York real estate law applies to the sale. Consequently, dual agency is prohibited under New York law in the absence of written disclosure to the Seller. Therefore, the agreement executed between the Tove’a and Nitva is an illegal contract and is unenforceable.",
+ "Discussion",
+ "1. Da’at ha-Rov (The Majority Opinion)",
+ "The threshold question is whether a Seller who promises to pay a commission above the market rate is obligated to pay. One view is that if the Seller promised to pay above the market rate, he is obligated to pay the promised amount. However, others hold that he is obligated to pay the entire amount, provided that he executed a ma’aseh kinyan (a symbolic act of undertaking an obligation) or shtar hov (a halakhically valid document of obligation), or undertook a shevuah (an oath). A promise to undertake a future action without an accompanying kinyan is a kinyan devarim (a promise), and therefore unenforceable in beit din.",
+ "Other Poskim, relying upon the ruling of Maharam, Rema, Shakh, and others, argue that since the client can always allege that he was jesting (“hashata”) and therefore never seriously intended to pay such a rate, the seller is obligated to pay only the prevailing market rate. Therefore, if the seller still retains the funds and has not transferred them to the agent, he can argue that he is relying upon the Poskim who contend that the agent is only entitled to the market rate commission. Even if the seller does not advance the argument in beit din, the beit din can advance this argument for him. The latter position is corroborated based upon the following Halakha: If the Buyer advances to the agent a portion of the compensation, and after completing his services, refuses to pay the balance because he argues that the balance exceeds the market rate, he is exempt from remitting the balance.",
+ "Based upon the foregoing, the panel adopted the position that as long as there was a ma’aseh kinyan, the Seller would be duty-bound to pay a commission that exceeded the market rate. Similarly, in our scenario, should the Buyer have promised to pay a commission above the market rate by executing a kinyan, the Nitva would be obligated to remit the funds.",
+ "Finally, even if it there was a kinyan, nevertheless when you are still engaged in the matter (i.e., asukim be’oto inyan), one has a right to rescind the offer even though a handshake was executed. At the time of the real estate closing (i.e., asukim be’oto inyan), the Nitva and his attorney said no such monies would be forthcoming, and therefore the commitment dissolved.",
+ "In light of the cumulative evidence that there is a dispute between the parties whether in fact Nitva shook the Tove’a’s hands acknowledging his obligation to remit the commission, the majority of the panel concluded that in cases where the fact(s) are in doubt, we invoke peshara (compromise) and obligate Nitva to pay one-third of the commission for services provided by the Tove’a.",
+ "2. Da’at Me’ut (The Minority Opinion)",
+ "Kinyan situmta refers to a kinyan that is effective to undertake a commitment (i.e., hit’hayivut) or transfer of items (i.e., hakna’ah) based upon minhag ha-soharim. Paris in the twelfth century, thirteenth-century Provence, fifteenth-century Algeria, sixteenth-century Spain, and twentieth-century Galicia, as well as other places, a handshake was a method of kinyan, to undertake an obligation. Echoing Shulhan Arukh and Rema’s rulings, R. Yisrael Grossman of the twentieth century opines,",
+ "If the sale is finalized via commercial practice such as … via situmta or by a handshake accompanied by saying “mazal u-brakha” … the parties are obligated to compensate the broker in accordance with the local practice.",
+ "However, today the finalization of an agreement regarding a real estate commission is performed through executing a real estate commission agreement rather than a handshake.",
+ "Moreover, even if some people finalize a commission agreement via a tekia’at kaf (handshake), such a kinyan will only be effective if the majority of the residents of the New York community practice this form of kinyan. And today, most residents do not handshake to finalize a real estate commission arrangement.",
+ "Consequently, the fact that there exists a doubt regarding the motivation and circumstances leading up to the handshake is irrelevant. Even assuming that the handshake was executed in order to undertake a commitment to pay a commission, given that it is no longer a legally recognized vehicle to finalize agreements, it cannot be viewed as a kinyan situmta.",
+ "Though, to the best of my knowledge, there is no explicit discussion regarding the propriety of a broker receiving two commissions, one from the Seller and one from the Buyer, nevertheless an inference can be drawn from a dispute amongst Rishonim (early authorities) that deals with two principals who appoint a shaliach (an agent) to purchase an asset. The dispute emerges from the discussion in Bava Metzia regarding two principals who placed their money in a common purse, but the shaliach acquires the property for only one of the principals. In that case, Rava rules that though the shaliach, in actuality, was working for only one of the principals, nonetheless the property is acquired by both principals. According to R. Meir Abulafia (Rama), Rava’s decision applies even if the shaliach explicitly states prior to becoming involved in the transaction that his intent is to buy for one of the principals. In contrast, Rid contends that Rava’s ruling extends only to a principal who fails to reveal his intent. However, if he explicitly states prior to the execution of the transaction that his intent is to purchase the asset for one principal only, then the asset is only acquired for that that principal. The common denominator of Rava’s position is that both principals knew that each of them appointed the identical shaliach, and there is a dispute regarding whether the property has been acquired by either both principals or only one of them. However, in a scenario in which one principal (the Seller) is unaware of the existence of a second principal, such agency would be invalid. Therefore, in our scenario, where the agent, the Tove’a, did not disclose to the Seller that there is a second principal, there would be no grounds for receiving a second commission from the Buyer, the Nitva.",
+ "The outstanding matter to address is the legal and halakhic consequences of the written agreement signed between Tove’a and Nitva. Legally, a real estate broker has a fiduciary relationship to his client and therefore has the duty not to act for a party whose interests are adverse to those of the principal, unless full disclosure has been communicated to the Seller. Accordingly, the broker cannot serve as an agent for both the Seller and the Buyer. In particular, in our case, the existence of an exclusive brokerage agreement with the Seller is inherently at odds with any dual brokerage arrangement. There are conflicts inherent in a dual agency. The dual agent owes both the Seller and prospective buyer the same degree of care and duty as he would if he represented each alone. In many real estate dealings this is impossible due to the contrasting motivations of the Seller and Buyer, and the broker’s duty of disclosure. Unlike a dual brokerage arrangement in which the parties agree to a lower standard of fiduciary ties and the broker may be acting in the Buyer’s interests to the detriment of the Seller’s interests, an exclusive brokerage arrangement propels the broker to consider only the Seller’s interests and receives the broker’s undivided loyalty. Adopting this perspective, a broker who has signed off on an exclusive brokerage agreement who decides to receive a second commission from the Buyer is in actuality accepting what amounts to a bribe. The submission of such payments subverts the brokering process and undermines the Seller’s interests. If a broker accepts two commissions, the Seller can claim that had the broker disclosed the second commission, he would have offered him a lower rate. Since the double commission was undisclosed, the Seller is unaware of the option that he could have requested a lower commission from the broker. Finally, legally, the written agreement signed between the broker and Nitva is an illegal contract and therefore unenforceable in a civil court.",
+ "Turning to Halakha, the threshold question is whether any issur (prohibition) was violated by signing off on a second commission arrangement. As we know, according to Halakha, “dina de-malkhuta dina” (the law of the kingdom is the law). According to most decisors, any matters relating to karka (real property), such as taxation, eminent domain, etc., require an observant Jew’s compliance. Failure to abide by the law in such instances may entail a violation of a Torah prohibition. Real estate law, including guidelines for brokerage arrangements, ought to be subsumed under this category of karka, and therefore would require compliance. Alternatively, pursuant to Rema, accepted by the majority of Poskim, civil law governs all matters that are “le-takanat bnei ha-medina” (for the benefit of the citizenry), understood by Rema as referring to any issues relating to social interaction. As we mentioned, the implementation of a dual brokerage fee without written disclosure means that the Seller has unknowingly given up his right to the agent’s undivided loyalty. As such, his illegal conduct impacts upon social interaction, in addition to falling under the rubric of geneivat da’at (verbal deception).",
+ "Though Shakh vigorously disagrees with Rema and contends that if a particular secular law contradicts Halakha, dina de-malkhuta dina does not apply, nevertheless, one can infer from hilkhot shelihut involving two principals that the payment of two commissions to a broker is not countenanced by Halakha. In Bava Metzia, Rava addresses the case of principals who place their money in a common purse, but the shaliach acquired property for only one of the principals. Rava concludes that though the shaliach is working for one of the principals, nevertheless the property is acquired by both principals. According to Rama, the psak of Rava applies even if the shaliach explicitly states prior to becoming involved in the commercial mandate that he intends to acquire the property for only one of the principals. In contrast, Rid argues that Rava’s ruling applies to a principal who doesn’t disclose his intent. However, if he explicitly states before the execution of the transaction that he intends to purchase the asset for one principal, then the asset is only acquired for that principal.",
+ "Based upon this dispute, in accordance with Rama, payment of two commissions without disclosure to the Seller would be permissible. Rama contends that if the shaliach explicitly states that his intent is to acquire in the name of one principal, the asset is acquired by both. Similarly, in our case, when the broker, as shaliach, is working for the Seller and Buyer, he can exhibit a sense of loyalty to both principals and therefore can receive a commission from both. On the other hand, in accordance with Rid, if the shaliach explicitly states that he is working for one principal only, the asset is acquired by this principal. Consequently, in our scenario, Rid would concur that there are no grounds for a double commission. If, in Rava’s case, intent to work for one principal casts into doubt his loyalty toward the other principal, if the broker fails to disclose the double commission arrangement to the Seller, we would reach a similar conclusion. Various Poskim including Tur and Rema follow the Rid’s opinion. Since according to Tur and Rema there is a basis for outlawing the two-commission arrangement, Shakh would concur that one must comply with the secular legislation.",
+ "Secondly, the notion that a broker can receive a commission from both the Seller and the Buyer is also contradicted by another sugya (Talmudic discussion), which argues that one person cannot represent two individuals. This is the sugya dealing with the dividing up of a father’s assets amongst orphans. Halakha states that one is required to appoint two apotroposim (guardians) to deal with this transaction. As such, each apotropus would be able to advance the zekhut (right) of each orphan. Here again, the notion that one person can represent two individuals who may have contradictory interests is rejected by Halakha. Analogously, a broker cannot receive a dual commission from the Buyer as well as a Seller without full disclosure to the Seller, lest the Seller’s interests be subverted. As such, even Shakh would agree that compliance with secular law is required.",
+ "Alternatively, we may invoke dina de-malkhuta dina, relying upon Hatam Sofer’s teaching:",
+ "If the matter had been submitted to us, we would have legislated it!",
+ "The backdrop for Hatam Sofer’s statement was the nineteenth-century Eastern European regulation that only licensed wine brokers may sell wine and liquor. Concerned with the monopolistic ramifications of this civil law and the attendant economic harm foisted upon non-licensed wine brokerages, members of the Jewish community approached Hatam Sofer to express his opinion regarding this regulation. In reply, Hatam Sofer argued that it is desirable to regulate economic competition, and that there is precedent in Jewish legal history for protecting the right of people to make a living, and therefore, the civil regulation makes sense. Hatam Sofer concludes that if the Jewish community had been empowered in his time to pass such legislation, they would have done it without hesitation. The notion that “if the matter had been submitted to us, we would have legislated it!” reverberates in the subsequent nineteenth- and twentieth-century rulings of Rabbis Yitzhak Schmelkes, Shlomo Z. Auerbach, Eliezer Waldenburg, Yitzhak Nissim, Yosef Elyashiv, and Shmuel Wosner who ruled in various contexts that dina de-malkhuta dina is applicable to such scenarios.",
+ "In the absence of an explicit halakhic prohibition outlawing dual agency without full disclosure to the Seller, and in light of a contrary understanding of Rava’s ruling, we nevertheless invoke Hatam Sofer’s approach that “had the matter been submitted to us, we would have legislated it!”",
+ "Common sense dictates that Halakha follow secular law by prohibiting the above type of dual agency in order to promote trust and confidence between the Seller and the broker.",
+ "Seemingly, this approach undermines Hazon Ish’s position that “everything is explicit in our Torah.” According to Hazon Ish, Halakha as a legal system has explicit rules that encompass the entire gamut of human relations. Hatam Sofer’s approach, which embraces secular law, seems to stand in bold contrast to Hazon Ish’s viewpoint. However, perhaps we need to translate the notion of an “explicit rule” loosely, as denoting any rule that can be inferred from Halakha. Therefore, though as we noted, there is no explicit discussion addressing the propriety of a dual agency and a two-commission arrangement, nevertheless, we may infer from the discussion of the aforementioned ruling of Rava and the teaching regarding the appointment of guardians for orphans, that Halakha would disapprove of such an arrangement.",
+ "In sum, the teachings relating to shelihut and apotropus implicitly reject the permissibility of an arrangement of dual brokerage commissions. Secondly, the execution of the agreement between Tove’a and Nitva is in contravention of dina de-malkhuta dina for one of the four forthcoming reasons: (1) Matters of brokerage are to be subsumed in the category of “karka”; (2) issues of brokerage are to be subsumed under the rubric of “le-takanat bnei ha-Medina”; (3) the secular legislation resonates in the teachings of Tur and Rema regarding agency and the discussion dealing with the appointment of guardians for orphans; and (4) secular law prohibiting dual commission fees is an example of equitable legislation and therefore should receive our halakhic stamp of approval.",
+ "In short, the agreement executed between the Seller and Buyer is an illegal and unenforceable contract under secular law. Halakhically, this agreement entails an issur, namely failing to comply with secular law, and at first glance, payment of such monies involves the violation of an issur. Hence, seemingly Tove’a is not entitled to these monies. And, in fact, there are some Poskim, notably Rabbis Y. Trani, Y. Rosannes, and K. Zuckerman who arrive at this conclusion.",
+ "However, most authorities rule otherwise. For example, the following agreements which involve the commission of a sin remain enforceable in a beit din: a loan transaction with a ribbit clause, an agreement to hire false witnesses, a matchmaker who introduced a kohen to a divorcee for the sake of marriage is entitled to a commission, an agreement to litigate a matter in civil court, and an agreement to engage in an illicit affair. In all these instances, though a sin was committed, nevertheless by dint of the fact that the individual obligated himself to pay for a certain service, he is duty-bound to compensate for the service rendered. As R. Y. Bassan teaches us,",
+ "If somebody says to his friend, please do this and this for me, and his friend did what is required, he is obligated to give him what he said he would give even though it involved a matter of sin …",
+ "Translating this rabbinic formulation into legalese, Professor Moshe Silberg, a renowned twentieth-century Israeli jurist observes,",
+ "We see clearly that Jewish law does not establish a causal connection between the commission of an offense and the voiding of a civil contract … The violation of the law or morality is one thing, and the legal validity of the contract is another – to the extent that the fulfilling of the contract itself does not activate the offense … Precisely because Jewish law does not distinguish between law and morality, and that practically every performance of an obligation is at the same time a fulfillment of a religio-moral commandment – as “the commandment” of repaying a debt of monetary obligation – the non-fulfillment of a contract entered into through a violation of law will only turn out to be an additional offense to supplement the original one committed by the transgressor.",
+ "In other words, though, for example, there is a prohibition against the taking of ribbit, of submitting false testimony, of a kohen marrying a divorcee, of litigating one’s case in civil court, and of engaging in an illicit affair, nevertheless, as long as the actual agreement between to the parties (involving these issurim) complies with the norms of the halakhic law of obligations, monies are to be remitted. The illegality arises from the act of issur itself (e.g., taking ribbit, submitting false testimony) and therefore does not impact the fact that an agreement was executed that entails payment of money for undertaking the act of issur. Seemingly, based upon the foregoing, the Nitva should pay the commission. Given that the element of illegality involved in a dual brokerage fee does not invalidate the agreement, Nitva ought to remit the monies owed to Tove’a.",
+ "Nevertheless, despite the foregoing, halakhic policy is to refuse to validate such a monetary payment, because such a stance would compromise the role of a beit din to be vigilant in afrushei me-issura (preventing improper conduct).",
+ "However, upon a closer reading of these rulings, we find that our scenario is readily distinguishable from the others. In the cases of an agreement to hire false witnesses, a matchmaker who introduced a kohen to a divorcee, an agreement to litigate a matter in civil court, and an agreement to engage in an illicit affair, although the agreement is prohibited, the payment is not tainted. The prohibition does not affect the monetary obligation. On the other hand, in our case, both the actual payment of the double commission and the execution of the agreement are halakhically (and legally) improper. And in such a situation, Halakha will not validate a tainted remittance of monies. For example, if there is legislation that the sale of a bottle of wine cannot exceed fifty dollars, and a Jew sold a bottle for fifty-five dollars, the seller must return five dollars to the buyer. In effect, this is similar to how Halakha deals with a loan transaction that has a provision for ribbit. Namely, the borrower can recover the principal, but the ribbit cannot be collected, and if he collected ribbit, he must return it to the lender.",
+ "Similarly, if a broker received a second commission from the Buyer, he is obligated to return the monies to the Buyer. And therefore, in our case, should we mandate that the Buyer remit a commission to the broker, it would be halakhically prohibited due to the fact that it is a violation of civil law.",
+ "Finally, there is a rule, either in accordance with the din, black-letter Halakha, or as a penalty, that a sinner cannot benefit from his wrongdoing. Therefore, since a double commission given to the broker is halakhically prohibited due to its non-disclosure to the Seller, which is a violation of civil law as well as minimally the interdict against geneviat da’at, Halakha does not permit him to benefit from his improper conduct.",
+ "Based upon the foregoing, the Nitva is not obligated to pay a commission to the Tove’a.",
+ "Final Thoughts",
+ "Finally, during the dayanim’s deliberations among themselves, the argument was raised that possibly if minhag ha-soharim demonstrated that real estate agents engaged in such a practice, we should direct the Nitva to remit the outstanding commission to the Tove’a. Upon review of teshuvot of Rishonim and Aharonim, one finds that the majority, and perhaps the overwhelming majority, of Poskim endorse the following approach of R. Moshe Feinstein:",
+ "It is clear … that in the situation of any law related to a local practice … there is no requirement that this decision be in pursuance with that of Torah scholars … Even if the custom was established by non-Jews who are the majority in that city, that custom is binding according to Torah law. It is assumed that when an agreement is executed, the inference is that the agreement conforms to local practice … and clearly, secular law is not inferior to custom …",
+ "This notion that minhag ha-soharim is reflective of civil law resonates with many Poskim. Adopting this approach leads one to the conclusion that Halakha recognizes a commercial practice that imbibes the norms of civil law.",
+ "In other words, there is an acknowledgement that there can be a minhag ha-soharim that emerges from the business community. The question is whether this practice will be halakhically legitimate even if it is in variance with the law. Addressing the minhag amongst providers of child care services that pay their employees certain social benefits which are below what civil law mandates, R. Ya’akov Eliezrov, a dayan on the Yerushalayim Regional Beit Din, rules that such payments are halakhically appropriate. On the other hand, this practice is labeled a “minhag garu’a” (a bad practice, due to the fact that it discriminates in comparison to the other provider networks) by R. Sherman, and he therefore rules that the providers have to pay the social benefits as prescribed by civil law. Consequently, should we accept the former position, then a commercial practice of dual agency with a commission paid by Seller and Buyer without disclosure to the Seller would be valid. In contrast, adopting the latter approach, such a practice would be invalid because it was a “bad custom,” since the Seller loses the undivided loyalty of the broker.",
+ "However, I will refrain from addressing my position regarding whether a minhag ha-soharim can be in variance with civil law, since there is a threshold question as to whether such a practice actually exists. To obtain the status of a minhag ha-soharim, the practice must be adopted by the majority of the real estate brokerages dealing in residential sales in a given locale, have occurred at least three times, and be widespread throughout the locale. Additionally, R. Yitzhak bar Sheshet and R. Yair Bachrach add, the commercial custom must transpire every day. In other words, whenever a real estate commission agreement is finalized, there is a provision that both the Seller and Buyer must remit commission fees to the broker.",
+ "Addressing whether there exists in New York City a commercial practice whereby a broker receives two commissions, various real estate agencies and one attorney submitted documentation to this panel in order to ascertain the prevalence of such a practice. The submissions indicate that “it may occasionally happen,” “it is quite rare for a broker to have a dual agency … and receive two commissions,” “it occurs sometimes when there are a few potential buyers who are jumping to purchase the home,” and “commissions can, and are occasionally paid both sides.” In light of the submitted professional opinions, it is clear that dual agency coupled with two commissions occurs infrequently and therefore cannot be labeled a minhag ha-soharim."
+ ],
+ "g) Mekach Ta'ut, the Role of Gemirat Da'at in Undertaking Obligations in Transferring Property and Promise Keeping": [
+ "G. Mekach Ta’ut, the Role of Gemirat Da’at in Undertaking Obligations in Transferring Property and Promise Keeping",
+ "Jardin Estates vs. Venetian Lanes",
+ "On July 1, 2009, the above parties signed an arbitration agreement empowering this panel to resolve this matter according to applicable portions of Shulhan Arukh and Poskim. Both parties submitted to this beit din their differences and disputes in reference to various claims advanced by Jardin Estates vs. Venetian Lanes. Having given said matters due consideration and having heard all parties testify as to the facts of said disputes and differences; this panel does decide and agree as follows:",
+ "Facts",
+ "On September 29, 2008, Jardin Estates (hereafter: Tove’a), owned by Avraham and Sara Cohen, sold a bungalow colony located in Elizaville, New York to Venetian Lanes (hereafter: Nitva). At the time of the sale, a deed was issued to the Tove’a that granted them title to the bungalow colony. Subsequently, in exchange for the sale of the bungalow colony, a conveyance agreement assigning exclusive ownership, use, and occupancy of a bungalow unit known as “Avraham’s Tent,” was given to Mr. and Mrs. Avraham Cohen, who held the controlling interest for the Tove’a. The conveyance agreement reads as follows:",
+ "Agreement between Jardin Estates and Venetian Lanes, dated September 29, 2008.",
+ "Whereas, Venetian Lanes has this date purchased from Jardin Estates, the bungalow colony known as Jardin Estates located in Elizaville, New York, and",
+ "Whereas, as part of the consideration Avraham and Sara Cohen shall have the exclusive ownership and use of one of the bungalows located at Venetian Lanes",
+ "Now therefore in consideration of the mutual covenants hereinafter set forth the parties agree as follows:",
+ "1. Avraham and Sara Cohen, their heirs and assigns shall have the exclusive use, ownership and occupancy of the bungalow located in the main house in the front called “Avraham’s Tent”.",
+ "2. Venetian Estates shall have the right of first refusal in the event the Cohens, their heir(s) or assigns wish to sell their interest in the bungalow, said right of first refusal shall be exercised in within 30 days after written notice is given by the Cohens to Venetian Estates.",
+ "Said agreement was signed by Venetian Estates and Avraham and Sara Cohen. In reply to our questioning, Mr. Cohen confirmed that the conveyance agreement was executed after the closing. And in fact, the text of the agreement supports this admission. To date, Tove’a has been denied access to this bungalow unit.",
+ "Tove’a’s Claims",
+ "Nitva paid Tove’a $500,000 for the purchase of the bungalow colony. In addition, Nitva made an oral commitment to pay Tove’a an additional $100,000 as a finder’s fee for the Tove’a’s services in brokering deals with the co-shareholders of the bungalow to enable him to sell the colony to the Nitva. As of today, said monies were not paid to the Tove’a.",
+ "Additionally, Tove’a is claiming $40,000 for the loss of use of the bungalow unit for four years (2008 through 2011) and the recouping of lost rental revenue due to his inability to occupy the unit.",
+ "In reply to Nitva’s argument that he only became aware of the problems with the sewer and pool after the purchase, Tove’a contends that pursuant to the sales agreement there is a general disclaimer of liability for defects, and therefore Tove’a is not responsible to compensate for Nitva’s outlay of expenses relating to the plumbing and pool repair.",
+ "Nitva’s Claims",
+ "Nitva claims, with the corroboration of the President of Jardin Estates of 2007–2008, Tova Wahrman, that Nitva only became aware of the non-functioning sewer system and the pool after the September 29, 2008 purchase of the colony. Consequently, Nitva advances claims for $58,000 for pool repairs and $18,000 for sewerage repairs.",
+ "Though Nitva admits that an agreement was signed that transferred ownership of the bungalow unit to the Tove’a, nevertheless this agreement was halakhically invalid, and therefore Nitva retains ownership of the unit. Even if this beit din panel validates the transfer, Nitva claims that since the remainder of the bungalow colony is owned by Nitva, the Tove’a does not have a right of way to access his bungalow. Since an easement was not granted by the Nitva to the Tove’a, Tove’a cannot access his unit.",
+ "Discussion",
+ "Generally speaking, for an agreement between parties to be legally enforceable, one must determine whether the parties involved have resolved to finalize their arrangement. In Halakha, this is known as gemirat da’at. This condition must be obtained both in undertaking obligations, such as hiring an employee and agreeing to pay money for a service, and in transferring property such as a bungalow colony or a bungalow unit.",
+ "Our case addresses both types of gemirat da’at. Regarding transfer of property, we will first address the question: Given that the buyer became aware of the defective sewer system and pool after his purchase of the colony, did the buyer have gemirat da’at when he executed his purchase? Second, was the conveyance agreement a bona fide method to transfer the bungalow unit from the buyer to the seller? Finally, in terms of undertaking obligations, was the buyer’s promise to pay the seller additional monies above the selling price memorialized in the actual sales agreement halakhically enforceable?",
+ "1. The Sale of the Bungalow Colony: Recovery of Costs for Sewage Problems and Non-Functioning Swimming Pool",
+ "In our scenario, the buyer is entitled to purchase the bungalow colony relying upon the assumption that the seller’s representations are true. His gemirat da’at is obtained, in part, by receiving a bungalow colony free of defects. As Rashi aptly notes, a buyer can claim: “I did not intend to purchase an item with a defect.”",
+ "In fact, any misrepresentation by the buyer involves geneivat da’at (lit. “stealing of the mind”), which entails either a violation of deception or of theft. If it is determined that there is a discrepancy in the sale, under certain conditions the sale is void (mekach ta’ut).",
+ "Due to the fact that the bungalow swimming pool was inoperative and the plumbing system was non-functioning in some of the bungalow units, Nitva argues that he has a right to rescind the sale. Should the beit din deny him that right, he should be compensated by the Tove’a for repairing the sewage system and bungalow pool.",
+ "At first glance, seemingly this issue may be resolved by focusing on the rulings of Shulhan Arukh and Rema. Addressing the halakhot of sales, Shulhan Arukh states:",
+ "Reuven sold Shimon homes that he had in another city. Prior to the finalization of the sale, some gentiles entered the homes and vandalized them, caused smoke damage to the walls, and dismembered doors and windows. Shimon wants to rescind the sale and Reuven says that since the defect is of a temporary nature (it is repairable), he would deduct the amount of money to restore the houses to their original condition and the sale would be final. The Halakha is with Reuven.",
+ "Rema: For after all, Reuven sold a house and it may still properly be called a house. Similarly, any defect that is not structurally connected to the house (be-guf ha-bayit), such as an easement to access the property, or drainage pipes, which can be removed, the sale of the house is final. However, if there is a structural defect in the house, such as if the seller said that a wall was sound and it actually was crumbling, the seller is proscribed from reconstructing the wall, and anything of the like.",
+ "A reading of Shulhan Arukh’s ruling would lead one to the conclusion that if the defect cannot be repaired, then the seller has a right to rescind the sale. However, should the defect be repairable, regardless of the extent and cost of the repair, then the seller’s right is limited to receiving a deduction from the purchase price.",
+ "However, the consensus of authorities is that Shulhan Arukh’s decision is based upon a decision of Rosh, who conveys to us a different understanding of this ruling. According to Rosh, one must distinguish between whether after discovery of the defect it is still called a house or not. In our instance, ought one view an inoperative pool and non-functioning plumbing in some units as temporary defects which can be repaired, and therefore the buyer should merely receive a deduction from the purchase price, or should we say that Venetian Lanes is to be viewed as a piece of property with living units, and therefore the right of rescission of the sale exists? In explaining this position, one authority contends that the determining factor is the external appearance of the property. In other words, if it looks like a bungalow colony, it is a bungalow colony, even if it has a structural defect. Based upon this understanding of Shulhan Arukh, it would seem that Venetian Estates remains a bungalow colony, and these are temporary defects that can be remedied and paid for by the seller. However, the retention of the appearance of a bungalow is only one of the reasons to validate the sale. If it the colony would need a tremendous amount of repair, it would lose its identity as a bungalow, and therefore, there would be a right of rescission of the sale.",
+ "Rema, as we read above, disagrees and argues that if there is a structural defect, for example, if the wrong construction materials were used or if there is a tottering wall, the sale is invalid. In the words of Netivot ha-Mishpat, by replacing a tottering wall with a sound wall, does the house receive “panim hadashot” (lit. “a new face”)? Moreover, Netivot Ha-Mishpat contends that if the property cannot be used, it is equivalent to a defect in the “guf ha-bayit,” the physical integrity of the bungalow colony, and therefore rescission is permitted. On the other hand, if there are defects that are external to the property, such as bad drainage, the sale is valid and any repairs for these types of defect are to be paid by the seller. Consequently, according to Rema, the inability to use certain bungalow units due to plumbing problems and a non-operative pool is to be viewed as a defect relating to the guf ha-bayit, and therefore the sale is invalid.",
+ "In short, according to Shulhan Arukh, the sale would be valid, but Rema would disagree. Without addressing the issue of whether this panel should follow Shulhan Arukh’s position or Rema’s view, endorsed by Netivot ha-Mishpat and others, our foregoing presentation assumes that there was an obligation upon the seller to disclose the defects, and that the buyer was exempt from initiating on his own an inspection prior to his purchase. Based upon these premises, we investigated what type of defect will invalidate a sale and we demonstrated that this is a subject of another controversy between Shulhan Arukh and Rema.",
+ "But in fact, as we will presently show, there was never any obligation upon the seller to disclose these particular problems, and there was a duty upon the buyer to check the colony. To put it differently, this is a case of “caveat emptor” – “let the buyer beware”. Given the particular circumstances of our case, as will be demonstrated, the onus of all inquiries and inspection regarding the property rests squarely upon the shoulders of the buyer, namely the Nitva!",
+ "The question is whether the buyer had gemirat da’at to purchase the bungalow colony with the attendant defects. In a situation in which the buyer could have inspected the property, either by himself or via the services of a third party, and he refrained from such inspection, it is a debate whether he can subsequently rescind the sale if defects emerge. Given the debate, one cannot extract money from the seller. This assumes that the buyer had already purchased the property. However, if the buyer became aware of the defects prior to transferring the money to the seller, he can rescind the sale. In our scenario, the buyer became aware of the defects after the sale and paying the purchase money.",
+ "However, on the basis of the clause in the sales agreement that specifically states that the colony was being sold “as is,” Tove’a argues that Nitva has no right to advance claims for his construction and repair costs. In reply to Tove’a’s contention, most Poskim argue that such a clause cannot serve as grounds for rescinding a sale (i.e., mekach ta’ut). In order to be shielded from pleas of mekach ta’ut, it is the seller’s duty to specify the actual mumim (defects) in the property. A general disclaimer of liability for defects will not be binding upon the buyer.",
+ "Moreover, minhag ha-soharim, commercial practice, dictates that there are certain assets for which a buyer customarily does perform an inspection. Therefore, if the minhag is not to inspect a prospective buy, then if defects are found after the sale, the seller is liable. For example, in certain times and places, the prevailing minhag was not to inspect courtyards and homes, and therefore Radvaz of sixteenth-century Egypt and Maharsham of twentieth-century Poland ruled that if subsequent to the purchase defects were discovered, the right of rescission is available. However, today where the minhag is to inspect real estate prior to an anticipated purchase, including the plumbing and pool of a bungalow colony, if the buyer fails to perform his due diligence, the right of rescission does not exist.",
+ "Such a conclusion is equally forthcoming regarding the seller’s duty of disclosure. Not only is the seller prohibited from deceiving or misleading the buyer, but if the seller is aware of any defect, he is obligated to disclose it to the buyer prior to the sale. Generally speaking, there is a duty upon the seller to disclose any defects to the prospective buyer. However, in the absence of the seller’s disclosure of plumbing and pool problems, if the buyer has the opportunity to perform an inspection, or if he refrains from asking whether there are problems, should a sale take place and he subsequently becomes aware of defects, the right of rescission does not exist.",
+ "Furthermore, even if prevailing practice does not indicate that prospective buyers inspect real estate prior to a sale, as we mentioned, if a buyer who can easily inspect the asset fails to implement such an inspection, there is a controversy whether the buyer has a right to rescind the sale. In this case, the buyer could have easily inspected whether the plumbing and pools were functional. And in cases of safek (doubt) one cannot mandate the seller to return the money.",
+ "Finally, even if the buyer was unaware of the problems prior to the purchase and even if minhag ha-makom, local practice, did not indicate that inspection is in place, if the buyer utilizes the property after he is aware of the problems, he loses his right to rescind the sale. Moreover, though there is an opinion that if he used the property knowing that there were problems prior to payment, he could still rescind the sale, most Poskim disagree. Once payment was made, the buyer’s decision to refrain from inspection is construed as mehila (i.e., a waiver). And in our situation, the buyer made the seller aware of these problems and requested remuneration for the repairs after the property was used and bought.",
+ "In sum, given that Nitva had adequate opportunity to inspect the pool and other plumbing matters during the month of September, and since there is an established practice to check these matters prior to purchase, and given that there was no duty upon the seller to disclose these defects, there existed gemirat da’at of the buyer upon executing his purchase. In effect, the buyer purchased the bungalow colony with its attendant non-functioning pool and plumbing knowing that he would be paying for these repairs. Consequently, there are no grounds for the Nitva to advance a claim for recovery of the costs of these repairs. Therefore, Nitva’s claim for construction costs and repairs are hereby denied. If the buyer could not advance a claim of mekach ta’ut years ago, there are no grounds now for asking remuneration for repairs.",
+ "2. The Conveyance Agreement – A Bona Fide Halakhic Transfer of Ownership, a Lease, or Haspa be-Alma?",
+ "Optimally, for an agreement to convey property or lease it to another individual, one must utilize language of hit’hayivut, hak’naah, or sekhirut (an obligation to transference/lease) such as “I obligate myself now to assign exclusive use, ownership, and occupancy of the bungalow.” Generally, an agreement is to be interpreted according to lashon bnei adam (common usage), and common usage of the word “shall” does not denote an obligation. Consequently, at first glance, one may conclude that the terminology “… the parties agree as follows: Avraham Cohen … shall have the exclusive use …” is a kinyan eitan (i.e., undertaking a future event). Though Tur, Beit Yosef, and Rema cite both views regarding whether kinyan eitan is an effective mode to transfer assets, numerous Aharonim reject its effectiveness as a kinyan. There must be language of hit’hayivut accompanied by a kinyan.",
+ "Nevertheless, in drafting contracts, should the minhag ha-soharim employ the word “shall” as denoting an obligation, then Halakha would accept the minhag ha-soharim and conclude that this agreement utilized proper language of hit’hayivut. However, it is unclear whether employing the word “shall” in drafting contracts necessarily is to be interpreted as an obligation. Even if one would argue that “shall” denotes an obligation, in this agreement it clearly is to be understood as future-oriented. Upon a closer reading of the agreement, the word that attempts to create the obligation is “agrees” rather than “shall.” In other words, the agreement is to be understood as saying that the “… the parties agree Avraham Cohen … shall have the exclusive use …” As such, the agreement is stating that in the future, Nitva agrees that Tove’a will receive exclusive use, ownership, and occupancy of the bungalow. Such a provision of the agreement is a “kinyan devarim.” Employment of the word “agrees” is future-oriented; it does not denote obligation.",
+ "However one cannot simply focus on the terminology “Mr. and Mrs. Avraham Cohen … shall have the exclusive use …” One must address the entire conveyance agreement. Among the provisions, it states the following:",
+ "Whereas, Venetian Lanes has this date purchased from Jardin Estates, the bungalow colony known as Jardin Estates located in Elizaville, New York, and",
+ "Whereas, as part of the consideration Avraham and Sara Cohen shall have the exclusive ownership and use of one of the bungalows located at Venetian Lanes",
+ "Now therefore in consideration of the mutual covenants hereinafter set forth the parties agree as follows:",
+ "1. Avraham and Sara Cohen, their heirs and assigns shall have the exclusive use, ownership and occupancy of the bungalow located in the main house in the front called “Avraham’s Tent.”",
+ "The essence of Nitva’s argument is that the legitimacy of the property transfer is based upon “be-hahi hana’ah gamar u-mesha’bed nafshei.” In other words, because of the benefit of being able to buy the bungalow colony, transfer of ownership of one of the units takes effect.",
+ "However, invoking “be-hahi hana’ah gamar u-mesha’bed nafshei” is only effective if stipulated at the time of the actual sale of the bungalow colony. In other words, the Nitva would have had to stipulate at the time of the actual sale of the colony that in consideration of purchasing the colony, Nitva is assigning ownership of one unit to the Tove’a. Such a stipulation was absent from the sales agreement. In our case, the conveyance agreement was executed after the sale, and consequently, “be-hahi hana’ah gamar u-mesha’bed nafshei” is inapplicable.",
+ "What actually transpired here? Conventionally under NY law, parties execute a conveyance agreement wherein in consideration for ten dollars and covenants and promises, a deed will convey the property. To put it differently, to transfer property or a lease requires gemirat da’at that is expressed in utilizing a language of hit’hayivut accompanied by a kinyan. Here, the parties chose to execute an agreement that, “in their eyes,” they were gomeir da’atam (firmly resolved) without employing a language of hit’hayivut and without the issuance of a deed required by law or any kinyan recognized by Halakha.",
+ "In the absence of language of hit’hayivut, one requires the performance of an act of kinyan. In our case, such an action never transpired. The question is, in the absence of a kinyan, can one argue that such an agreement is binding? According to many Poskim, where there is clear evidence of gemirat da’at, the kinyan is obtained by the gemirat da’at, and therefore, such an arrangement is valid. However, this position, albeit Talmudically grounded, is based on a shitat yahid (a minority view) that people can stipulate contrary to what is written in the Torah (“matneh al ma sha-katuv ba-torah”) and decide on their own how to transfer property, as Tove’a and Nitva did when executing this conveyance agreement. Consequently, it is unsurprising to find that Poskim will either explicitly state that this view is contrary to the weight of Halakha, or will only rely on this view as a “senif ” which will support other halakhic reasoning to advance a particular psak. Most Poskim disagree and minimally will validate an agreement devoid of language of hit’hayivut such as “the parties agree,” only if there was a kinyan. In the words of Meiri,",
+ "Where do hedyotot [laymen] have permission to nullify the Halakha of kinyanim!",
+ "Remarking on the view that accepts such agreements without a kinyan, R. Yehoshua Ehrenburg exclaims, “These words are astonishing!”",
+ "And in the words of R. Zalman Nehemiah Goldberg,",
+ "We have not found that a seller and buyer can create a kinyan that is not grounded in din torah!",
+ "Moreover, even Beit Yosef and Rema, who allow parties to execute an agreement without the prescribed kinyan, stipulate that only a recognized kinyan may be utilized. For example, both Beit Yosef and Rema will permit metaltelin (chattel) to be transferred with kinyan kesef though min ha-din, metaltelin cannot be transferred with kesef. In other words, minimally parties must implement a recognized kinyan even if it is not the one prescribed for the particular object. And other Poskim, among them Derisha and Shakh, take issue with this position and argue that a transfer of ownership requires the prescribed kinyan. The consensus is that a recognized kinyan must be utilized.",
+ "Thirdly, should a gentile accept Halakha and purchase with a bona fide kinyan from a Jew, such an agreement would be valid. Again, it is valid agreement because a ma’aseh kinyan was employed.",
+ "Moreover, let’s assume that our Hakhamim nullified the recognized ma’aseh kinyan. Can parties then stipulate between themselves that the halakhically recognized kinyanim are to be effective? The reply is that such private stipulation will be invalid.",
+ "Furthermore, in contradistinction to a private agreement, a kinyan is not required in order to impart validity to a public agreement. Therefore, if a communal institution, such as a municipal body, a yeshiva, or a synagogue, makes a promise, the body is duty-bound to comply with it. However, one of the exceptions to this rule is when dealing with the sale of land. For a land sale to be effective, the communal institution must execute a kinyan. Certainly in our case, dealing with the affairs of private individuals, a ma’aseh kinyan must accompany the land transfer!",
+ "Finally, the Tove’a assumes that parties can create their own kinyan situmta, a mode of undertaking an obligation that is rooted in their own gemirat da’at, but most Poskim argue otherwise. For many Poskim, kinyan situmta is based on either minhag, “kinyan halifin,” or grounded in “kinyan meshikha/hazaka.” To put it differently, there is a requirement of an “objective act” that creates the gemirut da’at of the parties.",
+ "For the conveyance agreement to be viewed as a kinyan situmta, it must be reflective of minhag ha-soharim, and such a minhag must be based upon the requirements of what secular law mandates for property transfer. There are numerous Aharonim who mandate that an agreement comply with minhag ha-soharim. Should a deed be required by secular law, gemirat da’at will only be obtained by filing a deed. Secular law requires the issuance of a deed as a prerequisite for property transfer, and that is not provided for in this conveyance agreement. Absent the parties’ agreement to execute a transfer without title registration, Hazon Ish and R. Shlomo Z. Auerbach recognize a property transfer utilizing a halakhically recognized kinyan unaccompanied by a deed, but subsequently, there must be title registration in order to comply with secular law. Even those nineteenth-century Poskim and contemporary authorities who recognize a transfer of ownership without a deed, require that a bona fide ma’aseh kinyan with language of hit’hayivut be utilized. In other words, the parties may execute a kinyan prior to title registration and it will be valid. The common denominator is that there must be a ma’aseh kinyan that is known by the business community.",
+ "In other words, Poskim have recognized a kinyan situmta based upon minhag ha-soharim such as placing a seal on an item, a handshake, a coin transfer, etc., or based upon secular law. However, a kinyan situmta based upon the subjective kavana (intent) of the parties, as we find in our case, was recognized by only a few Poskim. As such, the weight of halakhic opinion is to reject this conveyance agreement as a bona fide kinyan situmta.",
+ "Given that Poskim recognize our modern-day contract as a kinyan situmta, the question is whether the conveyance agreement generates a lease and/or use in the bungalow unit. Pursuant to NY law, ownership remains in the possession of the Nitva. However, in consideration of the purchase of the bungalow colony, Nitva agreed to convey a property interest akin to a valid negative easement to the Tove’a, which means that the owner granted the Tove’a use of this parcel of land in the colony. Unlike a license, which is revocable, this easement is not revocable. As such, by dint of an easement, Tove’a has been granted exclusive use of the unit. Alternatively, we view this conveyance agreement as granting the Tove’a a perpetual lease of rent-free space.",
+ "Given that NY law will validate this conveyance agreement, Halakha will recognize this agreement conveying use and occupancy of this unit as a kinyan situmta.",
+ "In sum, the foregoing shows that the requirement of employing certain language and mandating a kinyan, must “objectively” demonstrate gemirat da’at. Though most Poskim will invalidate kinyan situmta grounded in the subjective intentions of the parties, nevertheless, given that secular law recognizes this agreement, Halakha also validates it.",
+ "3. The Conveyance of the Ownership of the Bungalow Unit: Is it a Tenai of the Sale of the Colony?",
+ "The question is whether there is a basis for concluding that the Tove’a actually owns the unit. R. Dovid Babad, a famed nineteenth-century Posek of Galicia, communicates to us a mesorah (tradition) that he received:",
+ "I heard from ha-Gaon R. Barish Rapaport … that he had a mesorah from his Rav, ha-Gaon Noda be-She’arim, Av Beit Din of Lublin, that upon receiving a question to address, he would first weigh in his mind the truthfulness of the matter according to what human reason dictates and if in his estimation human reason the matter is true, then he would delve into Halakha to arrive at a decision.",
+ "Even if Halakha and secular law invalidate this conveyance agreement in terms of transferring ownership from the Nitva to the Tove’a, reason dictates that there was an agreement of property transfer consummated verbally between the parties. In fact, we have a signed agreement that memorializes this arrangement. So the question before this panel is whether this arrangement was finalized verbally prior to the sale of the colony, and there actually was a tenai to consummate the sale, or was it only initially discussed and finalized after the closing? Obviously, both possibilities exist and the question is: How do we determine when the verbal agreement actually transpired? Addressing our dilemma, R. Yosef ibn Lev addresses a kashrut question posed to him. A halef (knife) for shehita (slaughtering) must be free of nicks. Consequently, prior to shehita, the shohet (ritual slaughterer) must have his halef inspected by a rabbi. In this case, the rabbi ruled that the knife was pasul (invalid) and therefore could not be used for shehita. However, another individual, unaware of the rabbi’s ruling, showed the halef to another rabbi who declared it kosher, and the knife was used to slaughter meat. After the animal was slaughtered, the knife was examined for a third time, and again it was ruled to be pasul for shehita.",
+ "The question is: What is the status of meat slaughtered with a halef that was pasul, but prior to the slaughtering, was found to be kosher? At first glance, we should conclude that the meat is kosher because we may assume that the knife had been repaired prior to the shehita. Moreover, if a halef is known to be kosher and subsequently is discovered to be nicked, any meat that was slaughtered with the halef is kosher because we may assume that the nick occurred after the meat was slaughtered. Such reasoning would lead one to conclude that the meat is kosher. However, in this case, this reasoning would have to be predicated upon the following facts: The halef was repaired between the first and second inspection, but was subsequently nicked before the third inspection. In light of the low degree of probability that the events occurred in that fashion, R. Yosef Ibn Lev refrained from declaring the meat kosher.",
+ "The implications of his position are that if there is a high degree of probability that a certain chain of events transpired, then a dayan can invoke umdana de-mukhah (sound inference/common sense) and conclude that the events in actuality happened. To apply this ruling to our case, it is highly unlikely that the parties initially discussed an arrangement of transferring the unit after the closing and then prepared and executed the conveyance document. The more likely sequence of events is that this matter was discussed and finalized verbally prior to the closing. In other words, in consummating a real estate deal (or for that matter, any commercial transaction) concerned parties stipulate any and all of their conditions to the sale prior to the sale. There is an umdana de-mukhah that our parties, as experienced and astute businessmen, conducted themselves according to minhag ha-soharim. Based upon the cumulative evidence submitted to this panel, no facts exist to rebut this presumption. It is evident that the sale of the colony was contingent (i.e., a tenai) upon receiving ownership of the bungalow unit. And relying upon an umdana de-mukhah, one can be “motzi mamon” (extract money) from a Nitva, based upon a signed shtar borerut (arbitration agreement).",
+ "Lest one challenge this conclusion due to the fact that NY law requires title transfer and issuance of a deed. In the absence of a deed, we are dealing with an illegal contract. And, in fact, according to NY law, a party to an illegal contract cannot request a civil court to help him carry out his illegal act.",
+ "Moreover, to conclude that the Tove’a now owns the property without a title is seemingly a violation of Halakha. As we know, the consensus is that with regard to matters of karka’ot (land), there is an imperative to follow the laws enacted by the civil authority (“dina de-malkhuta dina”). Consequently, transferring ownership without a deed entails non-compliance with the dictates of the government, and therefore, such conduct is halakhically proscribed.",
+ "However, in bold contrast to NY law, Halakha views an illegal contract very differently. Professor Moshe Silberg, a renowned twentieth-century Israeli jurist observes,",
+ "We see clearly that Jewish law does not establish a causal connection between the commission of an offense and the voiding of a civil contract … The violation of the law or morality is one thing, and the legal validity of the contract is another – to the extent that the fulfilling of the contract itself does not activate the offense … Precisely because Jewish law does not distinguish between law and morality, and that practically every performance of an obligation is at the same time a fulfillment of a religio-moral commandment – as “the commandment” of repaying a debt of monetary obligation – the non-fulfillment of a contract entered into through a violation of law will only turn out to be an additional offense to supplement the original one committed by the transgressor.",
+ "To put it differently, the agreement is illegal only if the essential terms of the agreement are illegal. In other words, one must distinguish between the conduct that is prohibited and the actual agreement. For example, if a husband tells his wife, “I will give you your get (Jewish divorce) on the condition that you consume non-kosher meat,” and she eats it, she is divorced. Or if party agrees to hire witnesses who are deceitful, the agreement is valid. Though the actual testimony is prohibited, nevertheless the agreement to hire such witnesses does not entail an issur, and one is obligated to comply with his duty to abide by the agreement and must remit the monies for the hiring. Similarly, if an individual executes an agreement with a prostitute to engage in an illicit affair, though the affair is prohibited, nevertheless, one must fulfill one’s commitment and therefore comply with the agreement and remit money for her services.",
+ "In our situation, one must differentiate between the parties’ decision to transfer ownership without the issuance of a deed, which involves a halakhic violation of failing to comply with the dictates of civil law, and the undertaking of the actual agreement between the parties. In other words, though the parties are engaging in an issur, i.e., non-compliance with the law of the state of NY, nevertheless, Nitva has an obligation to fulfill the terms of the conveyance agreement, including but not limited to the transfer of ownership.",
+ "In short, the bungalow unit belongs to the Nitva with the Nitva having granted an irrevocable right to the Tove’a to occupy and use the unit. Therefore there are grounds for his claim for recouping lost rental revenue due to being unable to occupy the unit for a period of years.",
+ "4. A Promise: Is it a Halakhically Enforceable Obligation?",
+ "At some juncture in time prior to the execution of the sale of the colony, the parties agreed to the amount of the purchase, which would be paid at the closing, and Nitva orally promised to pay an additional $100,000 in cash for the purchase of Jardin Estates. Is such a promise a halakhically enforceable obligation?",
+ "According to the din, there are two components required in the undertaking of an obligation: effectuating a kinyan (i.e., symbolic act of acquisition) and gemirat da’at (i.e., a concrete articulation of the parties’ firm resolve to undertake the obligation). The act of promising reflects the absence of gemirat da’at, either because a promise entails executing an obligation in the future (e.g., a promise to sell goods) or a promise is in respect to transferring title of something that is not yet in existence (i.e., davar she-lo ba la-olam), such as an item that has not been produced or is not in his possession (i.e., eino bi-reshuto), and therefore such promises are unenforceable in a beit din. Nitva’s promise is an example of a davar she-lo ba la-olam because it entails the commitment to remit a sum of money in the future, i.e., upon the consummation of the purchase of a bungalow colony",
+ "The consequence of reneging upon a promise is stated in Shulhan Arukh and Rema in the following fashion:",
+ "When one conducts and concludes commercial transactions using words only (the negotiation and agreement not being completed by a formal act of acquisition), that person should stand by his word, even though none of the purchase price has been taken, nor a buyer’s mark made on the goods … Whoever withdraws from this type of transaction, whether buyer or seller, is deemed a faithless person.",
+ "Rema: A person should stand by his word even though no act of acquisition has been performed, and only mere words have passed between the parties …",
+ "Where no payment has been made, and the seller articulates an oral commitment to sell realty or personalty to a prospective buyer and the deal is finalized, should either party then renege on the agreement of sale, he is stigmatized as a mehusar amana (lit. “lacking faith”). Given that no act of acquisition (i.e., kinyan) has been executed between the parties, technically either party may withdraw from consummating the sale. The noncompliance with the promise is unenforceable. Enforceability depends upon the execution of a kinyan.",
+ "According to the Halakha of obligations, i.e., hit’hayivut, the promisor (in this case the Nitva) must obligate himself rather than promise to pay “X” number of dollars. For example, the use of language such as “I obligate myself to pay Abraham Doe such and such,” “I undertake to pay … ,” “I am obligated to pay … ,” or “I admit that I am obligated to Tove’a such and such” are all leshonot (language) of obligation. The common denominator of these different terms of accepting a commitment is that with this language, one transforms himself into a debtor now. Consequently, min ha-din – in accordance with Halakha – a promise to remit only entails a future action and therefore has no legal validity. In fact, in response to actual instances of individuals making promises in commercial matters, Poskim have ruled that these promises are beyond the pale of enforceability by a beit din.",
+ "Nonetheless, despite the absence of the mention of the aforementioned monies in the closing statement, there is an umdana de-mukhah, i.e., it is objectively evident, that he did not waive his right to these monies. For example, Reuven sells real estate to Shimon and during the negotiations Reuven informs Shimon that he is selling the land because he is moving to Eretz Yisrael. Should Reuven cancel his move, the sale is null and void. Despite the fact that there was no tenai kaful, a double condition, it is objectively evident that the sale was contingent upon Reuven’s move.",
+ "In fact, one could advance the argument that even if the Tove’a had not conditioned the sale upon receipt of the monies, the condition would be valid. As Rosh states, “if the situation is such that his intentions are clear, even if he does not indicate the sale is under these conditions, the conditions are binding.” And this conclusion would be applicable even if the condition were not reiterated at the time of the closing.",
+ "Lest one challenge this conclusion and argue that the tenai is only binding provided that it is reiterated at the time of the closing, based upon the facts it is clear that without receiving such monies, the Tove’a would have not sold the colony to Nitva. Consequently, given that there exists an umdana de-mukhah (sound inference) that can serve as grounds for rescission of the transaction (mekach ta’ut), there is no evidence that mehila (waiver) transpired prior to the closing.",
+ "If a person makes an oral commitment regarding a condition of the sale and fails to have this condition incorporated in the sales agreement, there is a controversy about whether this is an indication that he has waived this condition. Nevertheless, everyone would agree in our situation, where the sale was consummated without a written sales agreement, the condition remains. As such, even though the formal purchase price was $500,000, the earlier promise to pay an additional $100,000 was never waived.",
+ "In sum, in construing the promise as a tenai, Nitva is obligated to pay $100,000 to the Tove’a.",
+ "Decision",
+ "1",
+ "A. Avraham’s Tent is owned by Venetian Lanes",
+ "B. The Tove’a has exclusive occupancy and use of Avraham’s Tent in the form of a negative easement and is granted an easement, a right of way to access Avraham’s Tent. Nitva shall hereby immediately publicly record the two easements.",
+ "2. Nitva is obligated to pay $100,000 to the Tove’a.",
+ "3. All other applications and claims are hereby denied.",
+ "4. The obligations set forth herein shall be enforceable in any court of competent jurisdiction.",
+ "5. Any provision of this decision may be modified with the consent of both parties.",
+ "There is a da’at me’ut (a minority opinion) that disagreed with portions of the above decision.",
+ "Final Thoughts",
+ "Access to the Bungalow Unit",
+ "Does the fact that the contract fails to grant the Tove’a a right of way to his bungalow preclude him from accessing his bungalow? Does a person who has occupancy and use of a house fly in the air in order to access his home? Shulhan Arukh states,",
+ "If someone sells a pit or a cistern, the buyer does not have to acquire a right of way to the pit or cistern. The buyer may enter the seller’s house to go the cistern and draw water.",
+ "Similarly, in our situation, upon receiving occupancy and use of the bungalow unit, the Tove’a does not have to formally acquire a right of way from the Nitva. Rather, Tove’a can access his home via the road of the bungalow colony that belongs to the Nitva.",
+ "Should the Nitva refuse to grant the Tove’a a right of way, R. Greineman argues,",
+ "When the seller refuses to sell him the access road, seemingly the buyer can nullify the sale … What is the value of a pit and cistern which have no access to them?",
+ "If the buyer cannot make use of his purchase there was no purpose to his acquisition of the property. Without citing Netivot ha-Mishpat, R. Greineman ascribes to the approach that non-use of the property purchased is equivalent to a defect in the “guf ha-bayit,” and therefore rescission is permitted. Similarly, in our scenario, the right to occupy/use the property implicitly assumes that the Tove’a has access to the road(s) leading to the bungalow unit."
+ ],
+ "h) A Wayward Torah Heir": [
+ "H. A Wayward Torah Heir",
+ "Facts",
+ "A father authorized his attorney to prepare a last will and testament in accordance with NJ estate law. Among the terms of the testamentary disposition was a provision that his son (hereafter: Tove’a) and his daughter (hereafter: Nitva’at) would share equally in their father’s estate.",
+ "Upon the father’s demise, Tove’a filed an action in civil court alleging that though the will stated that the Nitva’at was the executor of the estate, nevertheless, subsequently, their father changed his mind and wanted the Tove’a to be the executor. In accordance with the terms of the civil will, the executor was to receive remuneration for his services. Based upon the submission of cumulative evidence, the court determined that the Tove’a was the executor of the estate and in fact was to receive compensation for his past services. Subsequently, Tove’a summoned the Nitva’at to appear in beit din for the purpose of challenging the halakhic validity of the civil will.",
+ "Tove’a’s Claims",
+ "Given that according to Torah law, when the heirs are a son and a daughter, the entire estate of their father is to be transferred to the Torah heir, namely the son, the Tove’a is entitled to the entire inheritance.",
+ "Nitva’at’s Reply",
+ "In reply to Tove’a’s claim, Nitva’at claims that there are various halakhic justifications for affirming a civil will. Moreover, the beit din should disinherit the Tove’a due to his decision to proceed to court to resolve the matter of the executor of the estate and then to proceed to beit din to deal with the halakhic propriety of the civil will. Apparently, concerning the issue of the executor, Tove’a believed that a civil judgment would be handed down in his favor. After receiving a civil ruling in his favor, and knowing that contesting a civil will in court would fail, Tove’a promptly proceeded to beit din to challenge the halakhic propriety of the civil will. Such forum shopping, argues Nitva’at, ought to be discredited by the beit din. Finally, Nitva’at advanced the claim to recoup her expenses incurred by having to appear in civil court at the Tove’a’s request.",
+ "Discussion",
+ "Without addressing the halakhic merits of affirming a civil testamentary disposition and assuming that Tove’a is entitled to the entire estate as the Torah heir, we will demonstrate that he should receive only the share of the inheritance that has been earmarked for him in the testamentary disposition.",
+ "1. Litigation in Secular Court",
+ "The Tove’a’s initial decision to address this matter in a secular court is a violation of Halakha. The Torah states “ve-eleh ha-mishpatim asher tasim lifneihem,” from which the Talmud expounds “lifneihem – ve-lo lifnei akum.” As such, the Talmud understands that there is an issur against adjudicating one’s claims in a non-Jewish court. According to the Midrash Tanhuma, subsequently codified in Mishneh Torah and Shulhan Arukh, one who litigates his dispute in a civil jurisdiction “has cursed and raised a hand against the Torah of Moses.” As R. Dovid ben Zimra notes, appearance before a civil tribunal demonstrates that the Tove’a believes that the halakhic system is false and contributes to the removal of the Shekhinah (Divine presence) from the Jewish community. According to many Poskim, this is an issur de’oraita, a biblical prohibition.",
+ "Even if a decision would not be handed down by the secular tribunal, the issur of litigating in a civil court has been committed. As Shulhan Arukh states, “It is forbidden to adjudicate” – the mere appearance in a civil court activates the issur. Even if an individual plans to resolve the matter in beit din and simply wants to place pressure upon the defendant by commencing an action in court, such behavior violates the prohibition. Similarly, attempting to forge a compromise does not allow a plaintiff to commence a claim in civil court. Consequently, Tove’a’s commencement of a claim in civil court entails a transgression of “lifneihem – ve-lo lifnei akum.”",
+ "2. “A Sinner Should Not Benefit”",
+ "Addressing the civil court’s ruling that Tove’a is the executor of the estate, Tove’a’s conduct is at variance with the rule that a sinner ought not to benefit from the fruits of his improper behavior. In the words of the Talmud, “a sinner should not profit” from his sin. For example, though a sale of property on Shabbat will be final and deemed valid, nevertheless, if the purchaser accrued a profit from the sale, then he should donate his profits to the poor rather than benefit from his sin of negotiating a sale on Shabbat. Or, generally speaking, if I appoint a shaliach (agent) to perform an act, I am obligated to pay compensation for the shaliach’s efforts. Based upon what we have explained, the same is true for a shaliach who performs an act that is in contravention of Halakha on my behalf. However, in light of the principle that a sinner cannot profit from his sin, should the shaliach advance a claim for recovery of his fee for services rendered, beit din will penalize him and deny him any monetary relief. Addressing the halakhic rule that the profits earned by a professional dice player do not have to be returned, should he regularly engage in such conduct, Radvaz concludes that he should be penalized and the profits should be returned to the losers. Such conclusions were endorsed by others.",
+ "In fact, the rule that “he should not profit from his sinning” has been applied in yerusha matters. For example, dealing with a Torah heir who is a mumar (apostate), as well as a yoresh (heir) who murders his father in order to receive his inheritance, Rambam rules that he may be disinherited. Obviously, the act of homicide does not impact upon his status as a yoresh. However, to allow a yoresh to receive his yerusha after murdering his father is a vivid illustration of a sinner benefiting from “the fruits of his sin,” and as we know Halakha disapproves of a sinner profiting from his sin.",
+ "Whether this rule of “he should not profit from his sinning” operates min ha-din, in accordance with black-letter Halakha, or as a penal measure for one who is exploiting the halakhic process – akin to the principle “since he acted improperly, therefore, we will act improperly towards him” – is a subject of debate.",
+ "In our scenario, given that Tove’a engaged in improper behavior by proceeding to civil court, he should not potentially profit from his sin by receiving remuneration for past services as mandated by the civil court.",
+ "3. The Rule “Since He Acted Improperly, We Act Improperly Towards Him”",
+ "Regarding Tove’a’s decision to initially proceed to civil court in order to resolve the dispute and then to appear in beit din to adjudicate another matter, Tove’a’s conduct is reminiscent of the various teshuvot of Rosh dealing with fraudulent conveyances, i.e., the debtor attempts to prevent the creditor from collecting his debt by assigning his assets to a third party. In one of them, Reuven was obligated to Shimon on an oral loan, so he gave all his property to Levi in order to defeat Shimon’s claim. In reply, Rosh concludes that the transfer to Levi was a sham and we must invalidate this legal transaction. The fact that he transfered all of his assets to a third party clearly indicates that his intent was to defraud Reuven of the money entitled to him. Can one imagine, Rosh exclaims, that a person who is bereft of his assets would need to beg from door to door in order to receive his daily subsistence? Obviously, the transaction was a sham in order to evade his duty to repay the loan. As Rosh himself states, if one swears that he will sell his assets in order to avoid repaying his debt, it is akin to “swearing to nullify a mitzva.”",
+ "As Rosh notes,",
+ "Whenever anyone sought to scheme against his fellow, the Sages of the Talmud stood against him to frustrate his plan. And we shall draw inferences and reach conclusions by analogy from one case to another, for the Sages of the Talmud were unable to specify everything that would happen in the future.",
+ "Consequently, on the basis of a hekesh (reasoning by analogy) from the facts and the ruling of Rosh (and others), as well as the various passages in the Talmud that state “since he acted improperly, therefore, we will act improperly with him,” we conclude that in our situation Tove’a acted improperly by commencing an action in civil court. A Torah-observant Jew must bring all claims to a beit din rather than bifurcate one’s claims between beit din and civil court so as to exploit each institution for the sake of generating the optimum in financial profits. Such forum shopping is halakhically unconscionable.",
+ "In short, invoking both rules “since he acted improperly, therefore, we will act improperly with him” and “he should not profit from his sinning” leads this panel to the conclusion that the Tove’a’s behavior ought to impact upon the amount he should receive from his father’s estate.",
+ "In fact, we have a case of yerusha (inheritance) dating back to Mishnaic times in which Torah heirs were deprived of their rightful share due to acting improperly. Tove’a’s pattern of behavior is remindful of the Mishnah that recounts the story of Bnei Rokhel. The Mishnah states:",
+ "If someone distributes his property verbally, R. Eliezer states: whether he is healthy or critically ill, the properties which can be subject to a lien are acquired through money … Those which cannot become subject to a lien are acquired by meshikha [“pulling” – a form of acquisition]. They said to him: It occurred with the mother of the sons of Rokhel that she was ill and she said, “Give my veil to my daughter; it is worth twelve maneh,” and she died, and they upheld her words. He said to them: As to the sons of Rokhel, their mother should bury them.",
+ "In the Mishnah, a dispute is recorded between the Hakhamim (Scholars) and R. Eliezer whether the gift of a dying man (matnat shekhiv mera) can be effected solely by word of mouth, or whether one requires the execution of a kinyan. Challenging R. Eliezer’s position, Hakhamim invoke the story of the mother of Bnei Rokhel (the name of the mother) who while dying, gifted verbally an asset to her daughter. Obviously, a verbal instruction is sufficient! In response to the challenge, R. Eliezer informs us that the Bnei Rokhel were sinners, and therefore the Scholars penalized the sons and validated the gift even though no kinyan was performed. In other words, in the absence of the execution of a kinyan, the sons should have inherited the asset, but since the sons were sinners who planted kilayim, a forbidden mixture of seeds, the Scholars penalized them by disinheriting them due to their improper behavior.",
+ "In accordance with the din, the strict Halakha, the wicked sons should have retained their inheritance. Firstly, as the Mishnah instructs us, the ensuing punishment of violating the halakhot of kilayim entails a confiscation of the field itself. Moreover, Shmuel’s instructions, which state “keep away from inheritance transfers from a bad to a good son, much more so when they are from a son to daughter,” ought to propel this panel to the conclusion that the sons of Rokhel should have retained their yerusha as memorialized in their father’s will. Nonetheless, the Mishnah teaches us that we are empowered to disinherit Torah heirs due to their engagement in a sin that our authorities want others to refrain from emulating (as we will explain below).",
+ "If our Hakhamim in the Mishnah or Talmud penalized a person who transgressed the issur of kilayim, a man who forced a woman to consent to kiddushin (halakhic betrothal), or who snatched a girl for the sake of marriage, a fortiori, in our situation in which the Tove’a transgressed an issur of litigating in secular court, he ought to be penalized! Lest one challenge that Mishnah’s position ought to be limited to an individual who engages in the transgression of the issur of kilayim, Pnei Mavin argues that the rabbinic penal powers extend to any issurim transgressed. In fact, as we pointed out, Talmud itself invokes this penal authority regarding the transgression of other prohibitions. Such empowerment was not limited to the period of the Tannaim (scholars of the Mishnah), but was also implemented by the Amoraim (sages of the Talmud), Rishonim (medieval authorities), and Aharonim (later authorities).",
+ "In fact, interestingly enough, though unaware of a beit din’s penal capacity and relying upon Turkish law, R. Yehoshua Ehrenburg of twentieth-century Eretz Yisrael concludes that Halakha should follow secular law and should disinherit a Torah heir who is a murderer. Given that there is an oft-cited NY case, Riggs v. Palmer, in which an heir was deprived of her inheritance due to killing her father, contrary to Ohr Sameach’s view, R. Ehrenburg would argue that NY law ought to be applicable in our case. In effect, dina de-malkhuta dina is to be determinative in a case of a yoresh who acted improperly! To state it differently, had our case involved Nitva’s infraction of civil law, a beit din would have been empowered to disinherit him.",
+ "In fact, this conclusion is reminiscent, as tenuous as the connection may seem, of Hatam Sofer’s reply to the governmental legislation enacted that regulated the sale of wine and liquor in nineteenth-century Hungary. As R. Moshe Sofer notes,",
+ "The legislation that was enacted … is not contrary to the din of the Torah, rather in accordance to the Torah. And if we had the opportunity to legislate we would have legislated in this fashion.",
+ "The beit din’s authority is not limited to a case of a mumar or a murderer. Exercise of such authority was invoked in various instances in disinheriting a Torah heir.",
+ "Possibly, R. Feinstein’s psak is applicable to our case. R. Feinstein argues if a son believes in Hashem, is meticulous regarding his observance of mitzvot between man and Hashem, and educates his children in Torah and mitzvot, he will receive his Torah portion. However, in a situation in which the Torah heir engages in aveirot between Hashem and man, R. Feinstein rules that he may be deprived of his portion. Given that litigating in civil court is an example of an issur between man and God and according to some Poskim, entails an issur de’oraita, therefore R. Feinstein would conclude that he may be deprived of a portion of his yerusha.",
+ "As such, this beit din should use its authority and penalize Tove’a for litigating in secular court, and his share of the yerusha should therefore be diminished.",
+ "We are ruling that the Tove’a receive only a partial share in his father’s estate. Admittedly, upon death, Halakha rather than compliance with a contractual obligation informs us that estate assets belong to the Torah heir. As the Talmud states, one’s inheritance comes from Hashem. Yet, as pointed out, Halakha empowers a beit din to penalize a Torah heir for acting improperly, i.e., for engaging in issur. However, one might contend that beit din is perverting justice, as Rambam rules,",
+ "The dayan is warned to refrain from perverting the Halakha regarding one of the litigants if he knew he was wicked and sinful, Hashem has warned us to refrain from punishing him by denying him his [monetary] entitlement.",
+ "Perversion of justice is not limited to rendering a decision that favors one party, but equally extends to a Posek or a dayan who misrepresents the grounds for his ruling. Engaging in such behavior compromises the arbiter’s integrity and may entail the transgression of bal tosif, adding to the Torah and/or lying. For example, a rabbi cannot claim that the commission of a particular action is a biblical violation when in actuality it is only a rabbinic infraction. Or one cannot prohibit a particular activity in order to promote peace when Halakha doesn’t recognize this rationale for proscribing this behavior.",
+ "Invoking Pnei Mavin’s words, R. Hezekiah Medini’s teachings regarding the responsibility of a dayan are instructive:",
+ "A dayan should not penalize by perverting justice due to the fact that he is a wicked individual and transgressor. Even if he is wicked and a transgressor, one must judge a truthful din … And even though a beit din is authorized to mete out punishment in variance with the din [hora’at sha’ah] … it is because we want the sinner to repent … or for people to know and fear and not continue to sin … and all this applies when we do it as punishment and revenge. What is wrong is perverting justice if he does not know and he thinks Halakha obligates such action …",
+ "In other words, as elucidated by R. Eliav Shochetman, the prohibition of perversion of justice applies only when the beit din’s judgment that is in variance with the din will be perceived by the public as reflecting the din. However, if upon deliberation a beit din arrives at the decision to penalize someone, then the beit din must clearly explain the grounds for its psak din. In its decision, the beit din must state that, in accordance to the din, he may have been entitled to receive his portion as a Torah heir, however, due to his religious impropriety in engaging in forum shopping, Tove’a will be penalized by diminishing his yerusha. It is within the province of beit din to employ its penal authority in order that others do not emulate his improper behavior, in this case, forum shopping. Such an approach has been invoked in a case by R. Avraham Sherman, a Yerushalmi dayan.",
+ "Hence, given the halakhic precedent for invoking a beit din’s penal authority, we argue that such punitive measures be enforced in our scenario of a Tove’a who initially attempted to find relief by engaging in forum shopping for the purpose of depriving his sister of portions of an estate gifted by their father. As such, though the Tove’a, as a Torah heir, may have been entitled to the entire yerusha, due to his forum shopping, the Tove’a should receive only half of his yerusha.",
+ "4. Recovery of Court and Legal Fees",
+ "Finally, in reply to Nitva’at’s claim to recover court and legal costs incurred in secular court, generally speaking, Tove’a is obligated to reimburse the Nitva’at for such costs. And, if for example, the parties agreed to revisit the matter of resolving who is the estate’s executor prior to his appearance in beit din, Tove’a would have been obligated to pay for Nitva’at’s court and legal fees which were incurred in civil court.",
+ "Nonetheless, despite Tove’a’s right to revisit the case, said conclusion is predicated upon the fact that the Nitva’at attempted to summon the Tove’a to a beit din to determine the issue of the estate’s executor and the Tove’a refused to appear. The filing of a hazamana, summons to appear in beit din, never happened. In the absence of initiating a suit in beit din, the Nitva’at acquiescene to appear in civil court prempts the possibility of revisiting the claim in beit din.",
+ "However, if the Nitva’at failed to summon him to beit din, such inaction is construed as a waiver for recovery of court and litigation fees. Hence, in our case, the Nitva’at failed to summon the Tove’a to a beit din, and therefore, the claim for recovery of said fees is without foundation.",
+ "Decision",
+ "1. Tove’a shall receive half of the estate distribution as memorialized in the civil will.",
+ "2. The Nitva’at’s claims for recovery of court and legal fees are hereby denied."
+ ]
+ }
+ }
+ },
+ "versions": [
+ [
+ "Rabbinic Authority: The Vision and the Reality, Urim Publications. Jerusalem, 2013",
+ "https://www.nli.org.il/he/books/NNL_ALEPH997009861531405171/NLI"
+ ]
+ ],
+ "heTitle": "סמכות רבנית כרך ב",
+ "categories": [
+ "Halakhah",
+ "Modern",
+ "Rabbinic Authority Series"
+ ],
+ "schema": {
+ "heTitle": "סמכות רבנית כרך ב",
+ "enTitle": "Rabbinic Authority II",
+ "key": "Rabbinic Authority II",
+ "nodes": [
+ {
+ "heTitle": "פתח דבר",
+ "enTitle": "Preface"
+ },
+ {
+ "heTitle": "חלק א",
+ "enTitle": "Part I; Rabbinic Authority; The Vision",
+ "nodes": [
+ {
+ "heTitle": "פרק א",
+ "enTitle": "Chapter 1; The Multifaceted Halakhic Identity of a Jewish Investment Broker"
+ },
+ {
+ "heTitle": "פרק ב",
+ "enTitle": "Chapter 2; The Propriety of a Civil Will"
+ },
+ {
+ "heTitle": "פרק ג",
+ "enTitle": "Chapter 3; Harnessing the Authority of Beit Din to Deal with Cases of Domestic Violence and Child Abuse"
+ },
+ {
+ "heTitle": "פרק ד",
+ "enTitle": "Chapter 4; An Employer's Vicarious Liability for an Employee's Sexual Misconduct"
+ },
+ {
+ "heTitle": "פרק ה",
+ "enTitle": "Chapter 5; The Status and Role of a To'ein Rabbani in the Beit Din Process"
+ }
+ ]
+ },
+ {
+ "heTitle": "חלק ב",
+ "enTitle": "Part II; Rabbinic Authority; The Reality",
+ "nodes": [
+ {
+ "heTitle": "פרק ו",
+ "enTitle": "Chapter 6; Decisions in Even haEzer",
+ "nodes": [
+ {
+ "heTitle": "א",
+ "enTitle": "a) Spousal Rape, the Grounds for Divorcing an Adulterer, Retrieving Electronically Stored Information Incident to Divorce, and Nezikin Claims"
+ },
+ {
+ "heTitle": "ב",
+ "enTitle": "b) \"A Dead Marriage\" and its Halakhic Aftermath"
+ }
+ ]
+ },
+ {
+ "heTitle": "פרק ז",
+ "enTitle": "Chapter 7; Decisions in Hoshen Mishpat",
+ "nodes": [
+ {
+ "heTitle": "א",
+ "enTitle": "a) The Scope of an Investment Broker's Responsibility"
+ },
+ {
+ "heTitle": "ב",
+ "enTitle": "b) Piercing the Corporate Veil"
+ },
+ {
+ "heTitle": "ג",
+ "enTitle": "c) Non Compete Agreements"
+ },
+ {
+ "heTitle": "ד",
+ "enTitle": "d) Promises! Promises! The Validity of a Real Estate Binder Agreement"
+ },
+ {
+ "heTitle": "ה",
+ "enTitle": "e) Real Estate Brokerage Agreement"
+ },
+ {
+ "heTitle": "ו",
+ "enTitle": "f) Dual Real Estate Commission, Illegal Contracts, and Civil Law"
+ },
+ {
+ "heTitle": "ז",
+ "enTitle": "g) Mekach Ta'ut, the Role of Gemirat Da'at in Undertaking Obligations in Transferring Property and Promise Keeping"
+ },
+ {
+ "heTitle": "ח",
+ "enTitle": "h) A Wayward Torah Heir"
+ }
+ ]
+ }
+ ]
+ }
+ ]
+ }
+}
\ No newline at end of file