Secular Law Enforcement of the Heter 'Iska
Kenneth H. Ryesky, Esq.

In American secular law, the normative method for resolving disputes is for disputing parties to take the matter to the secular court system, which will apply the law of the jurisdiction to impose a settlement. The parties can choose to circumvent the normative method by specifying that the dispute will be resolved by the application of alternate law and/or resolution by alternate tribunal. Parties to a contractual agreement can and often do specify that the laws of a particular state shall govern the contract. ¹⁵ New York and other states will readily apply the law of a sister state when such is prescribed as the governing law by the parties. ¹⁶ Where the law of a foreign nation is specified as applicable, however, the courts in New York and other states are not necessarily so quick to apply such law, and impose certain burdens upon the party seeking to have the foreign law applied.¹⁷ Parties claiming applicability of a foreign nation's law must often specifically request the court ta do so, ¹⁸ and must sufficiently set forth the substance of the foreign law they seek to have the courts apply.¹⁹

When parties to a cantract specify halacha as the law governing the contract, the secular courts do not necessarily apply the halacha in the same sense as they would the laws of a typical foreign jurisdiction.²⁰ The courts will, however,apply secular law to enforce a contract that comports with the secular law, notwithstanding that the contract might coincidently be in a halachic format, such as a ketubah. ²¹

Parties to civil disputes can circumvent the normative court system and its associated formalities, procedures, rules of evidence, time delay and paper work (and, of course, the inherent monetary expense). The American secular law provides for various alternate dispute-resolution methods, most notably, arbitration. Even within the normative secular court system the parties often agree to dispense with many of the courtroom formalities by having their case decided by a court arbitrator.

American law does not weigh lightly the court system access rights accorded the citizenry, rights necessarily waived in the arbitration process. Therefore, the American secular courts will only enforce most arbitrations when the disputing parties expressly agree to resolve their differences through arbitration.²⁴

As the secular court systems become increasingly plagued by work overloads and scarce resources,²⁵ one can expect arbitration to be increasingly favored by the courts and disputant parties as a means of resalving differences.²⁶

Because halacha looks with very strong disfavor upon Jews' bringing their disputes with one another before non-Jewish or secular courts (arcaot), ²⁷ Jewish communities, wherever domiciled, have traditionally estabiished rabbinical courts, known as Batei Din, to resolve differences between members of the community.²⁸ The institution of the Beth Din has been characterized in one New York court decision as follows: "[The Beth Din] method of arbitration has the imprimatur of our own judicial system, as a useful means of relieving the burdens of the inundated courts dealing with civil matters."²⁹

The secular courts thus view the Din Torah process of the Beth Din as a type of arbitration, and are strongly disposed to enforcing the decisions regarding commercial matters rendered thereby. ³⁰ Indeed, arbitration is given great preference in halacha over any formal court system as a means of resolving disputes among individuals. ³¹ As with any other type of arbitration, however, a Beth Din decision will be vacated by the secular courts if the threshold secular law requirement of a written arbitration or submission agreement is not demonstrated. ³² Similarly, a Psak Beth Din (ruling) will also be vacated upon the showing of such substantial injustices as arbitrator partiality for or against a party to the dispute,.³³ decisions beyond the scope of the arbitration, ³⁴ refusal to allow a party to present valid witnesses or evidence, ³⁵ failure to set forth a definite and final record of the award, or failure to include interested and necessary parties in the arbitration proceeding. Notwithstanding such exceptional events, the secular courts will usually uphold an arbitration decision, including one handed down by a Beth Din.