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

The secular governments construct and maintain many public works for the general welfare, ranging from bridges and highways to court systems. Just as Jewish individuals can derive benefit from bridges and other public works of the secular governments, ⁶⁵ so too should the Jewish community as a whole make fair use of the secular justice systems in order to maintain and enforce Jewish laws and principles.

We have seen that any dispute involving a HeEer 'Iska arrangement will very likely be resolved contrary to halacha if the matter is decided by the secular courts, regardless of how well the arrangement initially conformed to halachic requirements. The secular American courts simply can not be relied upon to render decisions that comport with halacha. On the other hand, the secular courts are quite disposed towards enforcing Din Torah decisions of a Beth Din, provided that such decisions are rendered pursuant to the secular law requirements of any other arbitration proceeding.

In America, a Heter 'Iska arrangement that does not provide for resolution of disputes by a Beth Din is of questionable value because of the risk that it may be enforced by the secular courts in a manner at odds with halacha. On the other hand, a Heter 'Iska arrangement that explicitly provides for resolution of disputes by a Beth Din in a manner consistent with proper arbitration procedures has an excellent chance of being enforced by the secular courts in the sense that the courts will effectively uphold the Beth Din decision.

A Heter 'Iska arrangement should therefore entail a written Shtar 'Iska document,⁶⁶ which should be signed by the parties.⁶⁷ The document should explicitly provide that disputes or disagreements between the parties that conrern the transaction be submitted to a Beth Din for resolution according to halachic principles, and that the parties agree to be bound by the decisions of the Beth Din. One lesson from the Berger case ⁶⁸ is that the American secular courts do not exegetically interpret written contracts in the manner total is inherent to the elucidation cf Torah from written Torah texts.⁶⁹ The provisions for resolution by the Beth Din should therefore be plain and explicit, and not arcanely hidden in the use of a phrase such as "laws of guarantee."

For their part, the Batei Din should (and usually do) ensure that all of their proceedings are conducted in a manner that would not give the secular courts cause to vacate or modify their judgments. This includes having impartial arbitrators who allow all parties to participate in the proceedings, and whose decisions do not stray from the subject matter of the disputes at issue. The proceedings and decisions of such Batei Din can and should fulfill the requisites of a secular arbitration without compromising halacha.

Heter 'Iska arrangements and other business dealings can be structured so that any ruling of a Beth Din that might affect such transaction would be enforced by the secular courts in a manner consistent with halacha. The secular court systems are not themselves driven by a halacha imperative, but, as described above, will enforce decisions of a Beth Din if the parties to the agreement properly agree to having the Beth Din as their arbitrator. The parties to such arrangements, knowing that a secular court would uphold the Beth Din, would have little incentive to resort to the secular court system in derogation of thc Beth Din, and would likely abide by the rulings of the Beth Din. The potential halachic problems inherent in representation by Jewish lawyers of Jewish litigants in secular courts⁷⁰ would also be lessened. Thus, one who is party to such transactions ultimately fosters peace between man and his fellow, an "investment" that pays "interest" in this world, yet leaves the "principal" intact in the world to come.⁷¹