Monthly Archives for March 2010

Healthcare reform and Pirkei Avot

According to an article in yesterday’s New York Times, votes scheduled in Congress this coming week will decide the fate of health care legislation, and with it, perhaps, the fate of the November 2010 congressional elections and the remainder of Barack Obama’s presidency.

At such a critical moment in his presidency, it makes perfect sense for President Obama to turn to the wisdom of the Torah. From the transcript of President Obama’s speech on health insurance reform at Arcadia University on March 8, 2010:

Now, since we took this issue on a year ago, there have been plenty of folks in Washington who’ve said that the politics is just too hard. They’ve warned us we may not win. They’ve argued now is not the time for reform. It’s going to hurt your poll numbers. How is it going to affect Democrats in November? Don’t do it now.

My question to them is: When is the right time? (Applause.) If not now, when? If not us, who?

The President or one of his speechwriters must have been reading Pirkei Avot (Ethics of our Fathers):

?הוא היה אומר: אם אין אני לי, מי לי; וכשאני לעצמי, מה אני; ואם לא עכשיו, אימתי


He (Hillel) used to say: If I am not for myself, who is for me? And when I am for myself, what am I? And if not now, when? (Avot, 1:14)



In using Hillel’s words as a rhetorical flourish, the President might do well to continue reading to the next Mishnah:

שמאי אומר…אמור מעט ועשה הרבה

One’s rhetoric should never exceed his accomplishments, (Avot, 1:15),

which may turn out to be the phrase that ultimately defines Obama’s presidency. As an article in the New York Times Magazine, also published yesterday, said:

By the end of his first year, Obama expected to have revamped the nation’s health care system, restructured its energy industry to curb climate change, reined in Wall Street with a new regulatory structure, closed the prison at Guantánamo Bay, signed an arms-control treaty with Russia, begun rapprochement with Iran and jump-started the Middle East peace process. Instead, the president’s approval ratings have fallen by more than 20 percentage points, unemployment remains higher than even the worst initial White House forecasts and much of the president’s agenda is stalled. Most significant, the fate of Obama’s signature health care initiative is uncertain.

Moving towards a system for Hebrew-English transliteration

A very academic title, but I assure you this post is not.

As I read over today’s post on the teshuvah of Rav Ovadiah Yosef, I realized that I have no system for transliterating Hebrew to English. You can go back and pick out all the inconsistencies, but here’s one example to get you started.

It seemed to me that Hebrew words ending with a ‘ה’ should end with an ‘h’, as in teshuvah (תשובה) and Ovadiah (עובדיה) in the previous paragraph. I also figured I don’t need to spell Rav Moshe Isserles’ acronym “Rema” instead of the more natural sounding “Rama” (רמ”א) to distinguish him from Rav Meir Halevi (רמ”ה) (as suggested by Wikipedia), since the latter, ending with a ‘ה’, would be spelled “Ramah” with an “h”.

Sounds good, but then I noticed that I alternated between “yerusha” and “yerushah” (it’s ירושה), and then I corrected myself to write Rashba (רשב”א) instead of Rashbah. In the preceding paragraph, I spelled the Rama’s first name, משה, as Moshe, although I suppose it should be spelled Mosheh. The biggest blooper was “dina demalchutah dina” (דינא דמלכותא דינא). As a Talmudic/Aramaic phrase, all three words end identically with an ‘א’, and yet I managed spell one word with an ‘h’ and two without.

In short, I have no system.

Opinion of Rav Ovadiah Yosef on yerushah and intestacy

Rav Ovadiah Yosef, in his collection of responsa, Yehaveh Daat, volume 4, responsum 65, addresses the following question: May a family member who is not a yoresh (halachic heir), but is legally entitled to a share of a decedent’s estate, claim a portion of the estate in civil court under the doctrine of dina demalchutah dina?

Before turning to his analysis, it should be noted that the teshuvah (responsum) involves the distribution of the estate of a decedent who died without a will. It does not address whether a will would be recognized by halacha or whether any halachic workaround, such as reliance on what the Rama refers to as “shtar chatzi zachar,” is appropriate.

I. Scope of Dina Demalchutah Dina

Source

The source for the doctrine of dina demalchutah dina (literally, “the law of the kingdom is the law”) is a Gemara (Gittin 10b) which discusses the validity of contracts executed in non-Jewish courts. The Gemara states that a contract that merely records the terms of an independent transaction is valid and is admissible as evidence in halacha. However, there is a disagreement as to the validity of a contract that effectuates a transaction. One opinion states that the Torah incorporates the law of the jurisdiction under the doctrine of dina demalchutah dina. A second opinion disagrees and holds that contracts executed in a non-halachic manner are not valid according to halachah.

Opinion of the Rambam

The majority of Rishonim, including Rif and Rambam, quote the latter opinion as halacha. They don’t entirely reject dina demalchutah dina, but limit its application to laws that directly benefit the government, such as taxes and customs, and not to the laws of private transactions or disputes. Shulchan Aruch codifies the halacha according to these opinions (Choshen Mishpat 68:1).

Opinion of the Ramban

Other Rishonim, including Ramban, Rashba and Rosh, disagree. They hold that civil laws enacted for good of the general population are recognized by halacha in private transactions. Rama (Ch.M. 68:1) cites this opinion as halacha.

II. Halacha

Rav Ovadiah Yosef, applying strict adherence to the opinion of Shulchan Aruch, writes that the accepted halacha (at least for Sepharadim) is that dina demalchutah dina only applies to tax and other fiscal laws, but not to laws regulating transactions or disputes between private parties. Therefore, halacha does not recognize the legal inheritance rights of a legal heir who is not a yoresh.

Rav Ovadiah Yosef continues – even according to the opinions cited by the Rama, that civil laws are generally recognized by halacha, the doctrine of dina demalchutah dina does not apply to the laws of inheritance. Civil laws are recognized by halacha only if the Torah is neutral on the subject of the law. Dina demalchutah dina does not apply if the local law contradicts halacha. As the Rama writes, “otherwise all of the laws of Israel will be nullified.”

The Bet Yosef quotes a teshuvah of the Rashba in this regard. The Rashba was asked to rule on a dispute over the estate of a deceased woman. The woman’s surviving husband claimed that pursuant to halacha he inherited the assets she had brought into the marriage. The woman’s father claimed that under local law those assets were to be returned to him, and that local law should apply under the doctrine of dina demalchutah dina.

The Rashba wrote that uprooting the laws of yerusha by relying on dina demalchutah dina effectively uproots all of the laws of the Torah. If dina demalchutah had priority over the laws of the Torah, he said, then we would have no need for the Mishnah and Talmud; we would simply teach and apply the law of the land in every situation.

III. Litigation in non-Jewish courts

The remainder of the teshuvah addresses the serious prohibition of litigating disputes in non-Jewish courts (See Rambam, Yad Hachazakah, Sanhedrin 26:7). Rav Ovadiah Yosef writes that this applies even if the results under halacha and civil law are the same, and even if the decedent instructed his children to resolve the estate under a civil court’s jurisdiction. In a lengthy footnote, he writes that it is also prohibited to appear before a Jewish judge who will apply secular law – in fact, in such cases the disregard for the Torah is even more pronounced.

IV. Conclusion

Rav Ovadiah Yosef concludes that it is forbidden for the non-yorshim to appear in secular court to claim a portion of the estate. If the yorshim wish to share the estate with the non-yorshim, they should execute halachic transfers under the supervision of a bet din.

Heter Iska arbitration rights forfeited by defendant’s participation in litigation

The Appellate Division, Second Department affirmed a decision of the lower court that denied defendant Eli Weinstein’s motion to compel arbitration. The parties had signed a Heter Iska that contained an arbitration clause. (Although not mentioned in the decision, presumably it required the parties to go to Bais Din).

1 1/2 years after the litigation started, Weinstein, the defendant in the case, moved to compel arbitration based on the Heter Iska. He claimed that “he had not retained a copy of the Iska Contract and had ‘completely forgotten that it contained an arbitration provision.’”

The court held that a “defendant in an action who has the right to arbitrate a claim may forfeit or waive that right by acts inconsistent with the intention to arbitrate,” and found that “under these circumstances, Weinstein’s conduct evinced an intent over an extended period of time to litigate, rather than to arbitrate… Accordingly, the Supreme Court properly denied Weinstein’s motion to compel arbitration and stay the actions.”

The decision can be found here.

Neither court indicated that there was anything wrong with the Heter Iska or the arbitration clause. Rather, the decision was based on Weinstein’s failure to timely assert his right to arbitrate by first litigating for 1 1/2 years.

The decision also does not indicate how Weinstein “refreshed his recollection” of the arbitration clause since he claimed he did not keep a copy of the Heter Iska. A copy may have been produced by his adversaries in the course of discovery. If that was the case, and if Weinstein moved to compel arbitration as soon as he was reminded of the clause, than the court’s decision may be incorrect. As noted in the decision, the reason that a party may be found to have waived the right to arbitrate is to prevent a defendant from using the courtroom “as a convenient vestibule to the arbitration hall so as to allow a party to create his own unique structure combining litigation and arbitration.” If that was clearly not Weinstein’s intent, then maybe he didn’t waive or forfeit his right to arbitrate at all.

Brooklyn Judge Decides Couple Should Share Mitzvah

Judge Matthew D’Emic in Kings County Supreme Court (Brooklyn) decided in E.S. v S.S., 2010 NY Slip Op 50299(U) that a divorcing Orthodox Jewish couple should donate some of their marital property to charity and share equally in the Mitzvah. The judge wrote as follows:

C. EQUITABLE DISTRIBUTION

The parties have little. Nevertheless, whatever they have must be distributed. Therefore, any jewelry is awarded to the party in possession. The 2000 Buick Century is directed to be sold and the proceeds, if any, equally divided. If the car cannot be sold in its present condition it is to be donated to charity and the mitzvah equally divided.

Editorial on the Jonathan Pollard case

The 5 Towns Jewish Times published an editorial by Rabbi Yair Hoffman, Re-examining the Pollard Issue, which argues against treating Jonathan Pollard as a hero. Pollard is currently serving a life sentence for espionage and although eligible to apply for parole since the early 1990′s has apparently not done so.

Hoffman’s article can be read here.