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Litigation In Secular Courts
Rabbi Simcha Krauss

As we indicated earlier, the blanket isur of going to Arkhaoth leaves many difficulties in practical terms. The halacha is not blind to these impediments and has made provisions for them. When the defendant is a person who does not respond to, and cannot be forced to come to the Beth Din, then the plaintiff may take the defendant to Arkhaoth.23 The source of this is the Gemara In Bava Kama 92b which states:

"If you call your friend and he does not answer, you throw the wall on him."

Rosh quotes Rav Paltoi Gaon:

"From here (we derive) ... Reuven has a complaint against Shimon and he (Shimon) refuses to come to court, then he is allowed to take him to the courts of the gentiles In order to take what belongs to him."24

This permission to go to Arkhaoth where the defendant does not heed the call to go to a Din Torah needs some clarification.

First there is simply the practical matter. At what point in time may the plaintiff turn to Arkhaoth for alleviation of his claim? Is there a blanket "heter" (permit) to turn to Arkhaoth after the defendant refuses to comply with the Beth Din, as implied in the psak of Rav Paltoi Gaon, or are there certain steps and conditions which the plaintiff must follow?

Second is the conceptual problem as raised by the Kli Chemdah.26 The halacha of is a 25a. Hence going to Arkhoath is a . While one must not spend one's money In order to perform a mitzvat asei, one still is enjoined from transgressing a even at the cost of forfeiting one's possessions. Why then, asks the Kli Chemdah, is it permitted to go to Arkhaoth simply to prevent financial loss? [Hebrew in original omitted.]

Let us begin with the first issue. Ramban was asked whether one may take to Arkhaoth a "borrower", a "strongman" who did not respond to the summons of the Beth Din. The questioner apparently quoted the Geonim who permitted going to Arkhaoth In this instance. Says Ramban: [Hebrew in original omitted.]

According to Ramban, there is first the judgement of Beth Din. After Beth Din decides the case according to Jewish law, the Arkhaoth are used to implement the decision of the Beth Din. Only when these steps are of no avail may one take the next step and go to Arkhaoth because, as Ramban says, one may use either Jews or non-Jews to save and protect one's property.27

Rambam does not go so far. Rambam requires only that before going to Arkhaoth one should get the permission of Beth Din.28 Shulchan Aruch too follows the same position. Either way, however, the institution of Beth Din is not rejected. Beth Din does play a role in the litigation, albeit not an active role.

As to the question of Kli Chemdah mentioned above, perhaps the answer may be simple. As Rashi, quoted in the beginning of this article, states, the prohibition of going to Arkhaoth is rooted in giving worth and value to the institution of Arkhaoth. Indeed when one chooses Arkhaoth over Beth Din, one shows disregard for the institution of Beth Din. The free, unembarrassed, unapologetic, uncompelled choice of Arkhaoth gives them the necessary and requisite "esteem" that is truly forbidden. But having first gone to Beth Din, having first attempted a Din Torah and then, because the defendant does not want to adhere to Dinei Torah, going to Arkhaoth, does not, show any regard for the institution of Arkhaoth. It does not grant them, nor show them any esteem on our part. One does not esteem the Arkhaoth when they are second choice.

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