Monthly Archives for May 2010

CLE Announcement: “Dispute Resolutions done the Kosher Way: A Comparison between Jewish Halacha and US Civil Law”

The Bais HaVaad, Hudson Valley Bank & CUNY Law School have joined to coordinate a fantastic CLE Seminar on June 10th in NY.

“Dispute Resolutions done the Kosher Way: A Comparison between Jewish Halacha and US Civil Law”

Speakers: Rabbi Dovid Grossman, & Rabbi A. Marburger, Bais Havaad Organization

Hon. Judge David Schmidt,

Topics Include:
Jewish Law: A way of life, not a way to settle a dispute
Civil Laws that are based on the Judeo ethic and moral obligations
Legal Diagnostics
The Authority of Bais Din to Judge
Initial Interplay between Civil Court and Bais Din
Conflicts between Halacha and Civil Law
Theories of governmental authority
Judicial Laws and Legislative Laws

8:00 a.m. – 8:30 a.m. Networking Breakfast / Registration
8:30 a.m. – 10:30 a.m. Seminar, Q & A

LOCATION:
1 Grand Central Place
60 East 42nd Street (formerly the Lincoln Building) New York, NY 10016
Ground Floor Conference Center

Please note CLE Seminars are for practicing attorneys only!

Registration is required as seating is limited- No Walk-ins. First 75 RSVPS

Obligations of a guarantor in halacha

Rabbi Max Sutton, Rosh Bet Din Aram Soba in Jerusalem, published an article in the May 2010 issue of Community on the halachot of loan guarantors and sureties.  Rabbi Sutton writes:

There are two basic types of guarantee arrangements. The first is known as an ordinary guarantor (arev). An ordinary guarantor is a third party that agrees to be responsible for a debt only if the principal debtor defaults. Hence, the creditor is required to attempt to collect from the debtor, and only after he fails to pay is the guarantor held responsible. The second type of a guarantee relationship is known as a surety-ship (arev kablan). This arrangement enables the creditor to demand payment from either the debtor or the surety, whichever he chooses. The creditor need not exhaust any legal remedies against the principal debtor before holding the surety responsible for payment. Even if the debtor can make payment, the creditor has the right to collect from a surety the moment the debt is due. Once the debt is paid by either a guarantor or a surety, they may then pursue all legal remedies to collect from the debtor the money they laid out to the creditor on his behalf.

The article presents three cases which illustrate the following difficulties:

  1. Where the creditor made multiple loans, only some of which were guaranteed, how are partial payments by the debtor allocated between the loans?
  2. Where there are multiple guarantors for a single loan, how are partial payments by the debtor allocated between the remaining obligations of the guarantors?
  3. Are oral guarantees enforceable?

After discussing the issues, Rabbi Sutton concludes by summarizing the Bet Din’s ruling on each case.  The full article can be read here.

Agudath Israel opposes the proposed NYS organ donation bill

I mentioned in the previous post that religious organizations would be lobbying hard against the proposed New York State legislation that would presume that applicants for driver licenses consent to organ donation unless they affirmatively opt out of the program.

Apparently Agudath Israel has already circulated a memo to members of the New York State legislature. According to Agudah’s press release (here and here):

While Agudath Israel of America acknowledges the shortage of organs for transplant and the fact that Jewish religious authorities may permit organ donation in certain cases, it considers “highly presumptuous” – in fact, “simply false – the assumption “that the hundreds of thousands of Orthodox Jews across New York State would be in favor of allowing their organs to be harvested and transplanted,” in the words of a memorandum sent by Agudath Israel representatives to all the members of the New York State legislature.

Agudath Israel notes further that “similar presumptions about other ethnic and faith groups across the state would be equally false. The plain truth is that many people, for religious or other reasons, would not want their all of their organs automatically harvested. To presume consent where there is no consent is to make a mockery of these people’s rights.”

…

“Presumed consent,” says Agudath Israel associate general counsel Rabbi Mordechai Biser, “would effectively abandon the entire concept of personal autonomy—the principle underlying all statutory and common law regarding health care proxies, living wills, and the like.”

The principle, he continues, “that individuals have the right to direct what should happen to their own bodies after death would be replaced with the assumption that the state has the right to use a person’s body as it wishes unless the person actively protested such use during his or her lifetime.

“To put it simply: A person’s body should not belong to the state to use as it sees fit simply because he neglected to insist otherwise when alive.”

The Agudath Israel memorandum urges the legislature to “search for other ways of increasing organ donation without trampling on the personal autonomy and religious liberties of countless New Yorkers.”

Proposed legislation in New York to presume consent to organ donation

Currently in New York a person can affirmatively choose to be an organ donor. This is typically done when applying for a New York State driver license or by checking and signing the box on the reverse side of a driver license.

New York State assemblyman Richard Brodsky has introduced legislation that would reverse the enrollment process. Under the proposed legislation (A09865), an applicant for a driver license is automatically enrolled as an organ donor unless he or she opts out of the program. Furthermore, if an applicant has not opted out of the organ donation program, his or her family members or health care proxy cannot override the presumed consent without showing that the “consent” was later revoked.

The sponsor’s memo states:

According to the New York State Organ Donor Network, New York State currently has the lowest donor Designation Rate (DDR) in the United States. In total, only 11% of eligible donors are currently enrolled in The New York State Organ and Tissue Registry.

This number starkly contrasts to the national average of 43%. In some states, such as Utah and Iowa, the DDR ranges between 65-70%. This bill will create a new model for organ and tissue donation that is aimed at significantly increasing that percentage while taking into consideration all of the individual rights of persons to decline enrollment into the program.

The bill does not change Public Health Law 4301(5)(c) which states that an organ donee may not accept the gift if the donee has reason to believe that an anatomical gift is contrary to the decedent’s religious or moral beliefs. But this is small comfort to those with moral or religious objections to organ donation. By not opting out, the decedent is presumed to have consented, and “reason to believe” that the gift is contrary to the decedent’s religious or moral beliefs seems to be a pretty slippery concept.

The proposed bill also does not change the manner in which an anatomical gift can be revoked. So if, for example, one did not opt out of organ donation on the driver license application form, the presumed consent can be revoked by a “signed card or document found on his person or in his effects.” A revocation can be added to a health care proxy, but not everyone signs a health care proxy, even though they should.

The New York Times Room for Debate blog had several comments for and against the legislation. Elaine Berg, president and chief executive officer of the New York Organ Donor Network, was in favor of the bill (no surprise given her job description), yet wrote:

Importantly though, in order to be considered, it is imperative that any system of presumed consent have robust safeguards to protect individual rights. There must be guarantees that every citizen is well-informed regarding their right to opt out, and the procedure to do so would have to be simple, accessible and barrier-free.

Multilingual education in communities lacking access to computers or English media would have to take place. There would need to be multiple types of outlets for opting out, including at social service agencies, schools, D.M.V.’s, places of worship and online. We would have to pay special attention to communities who may have broad concerns about donation.

Religious organizations will no doubt strenuously lobby against the bill.

Arkaos: Litigation in non-Jewish courts

In an earlier post I discussed a teshuvah of Rav Ovadiah Yosef as to whether a non-yoresh (e.g., a daughter if the decedent leaves a son and a daughter) may claim a portion of an estate in court under local law. After summarizing Rav Ovadiah Yosef’s ruling that dina demalchuta dina does not apply, I wrote the following:

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.

One reader objected that although I provided a citation to the Rambam, I did not quote him in context. So here it is in full, with my approximate translation, and a few comments:

כל הדן בדייני עכו”ם ובערכאות שלהן אע”פ שהיו דיניהם כדיני ישראל הרי זה רשע וכאילו חרף וגדף והרים יד בתורת משה רבינו שנאמר ואלה המשפטים אשר תשים לפניהם לפניהם ולא לפני עכו”ם לפניהם ולא לפני הדיוטות. היתה יד העכו”ם תקיפה ובעל דינו אלם ואינו יכול להוציא ממנו בדייני ישראל יתבענו לדייני ישראל תחלה. אם לא רצה לבא נוטל רשות מבית דין ומציל בדיני עכו”ם מיד בעל דינו

One who litigates before non-Jewish judges or in their courts, even if their laws correspond to Jewish law, is an evil person, and it is as though he blasphemed God and raised his hand (in arrogance) against the Torah; for it says, “And these are the laws that you should place before them” — before them (i.e., the elders of Israel), not before non-Jews; before them, not before judges who are not ordained.

When under non-Jewish rule, if one’s adversary is powerful and will not cooperate with a ruling of a Bet Din, he must first attempt to sue his adversary in Bet Din. If his adversary refuses to appear in Bet Din, he may obtain the Bet Din’s permission and sue in non-Jewish court.

The Rambam’s source is Gittin 88b, which derives the prohibition from the pasuk quoted by the Rambam, “ואלה המשפטים אשר תשים לפניהם” — “and these are the laws you should place before them.” Interestingly, however, the Gemara does not compare litigation in non-Jewish courts to blasphemy and high-handedness, and the commentators on the Rambam do not point to the Rambam’s source for such strong condemnation.

The language the Rambam uses appears to be derived from the following pesukim, said with regard to idolatry:

וְהַנֶּפֶשׁ אֲשֶׁר תַּעֲשֶׂה בְּיָד רָמָה מִן הָאֶזְרָח וּמִן הַגֵּר אֶת ה הוּא מְגַדֵּף וְנִכְרְתָה הַנֶּפֶשׁ הַהִוא מִקֶּרֶב עַמָּהּ
כִּי דְבַר ה’ בָּזָה וְאֶת מִצְוָתוֹ הֵפַר הִכָּרֵת תִּכָּרֵת הַנֶּפֶשׁ הַהִוא עֲוֹנָה בָהּ

A person who shall act high-handedly, whether native or convert, he blasphemes God; that person shall be cut off from among his people, for he scorned the word of God and broke His commandments; that soul shall surely be cut off, its sin is within it. (Bemidbar 15:30-31)

The similarity between our subject and intentional idolatry is apparent in the reason provided for the punishment — “for he scorned the word of God.” Clearly, the Rambam does not mean that litigating in a non-Jewish court is a transgression as serious as idolatry — it is not explicitly prohibited by the Torah and it does not carry the same punishment as idolatry. Nevertheless, by resolving a monetary dispute outside of the system of the Torah one turns his back on the Torah’s system of justice.

Another point worth mentioning along these lines: Rashi in Mishpatim cites a Midrash which states that we learn from the proximity of the laws of the altar to monetary laws that during the time of the Temple, the Sanhedrin were to be situated near the altar. Keli Yakar in Mishpatim discusses at great length the conceptual relationship between the altar and justice. Such connections also seem to indicate that a litigant’s abandonment of the Sanhedrin by resorting to non-Jewish courts is on some level also an abandonment of the altar, reinforcing the Rambam’s comparison of litigation in non-Jewish courts to idolatry and blasphemy.

The Rambam writes that one may only bring suit in non-Jewish courts if his adversary refuses to appear in bet din, and after obtaining bet din’s permission. There may be other exceptions that should be discussed if and when they arise, such as bringing suit to recover against a defendant who is insured — the insurance policy would be unavailable in bet din, and any chillul Hashem may be mitigated by the understood objective of the lawsuit.

So why is it that there are so many reported cases involving Orthodox Jewish litigants fighting their battles in state and federal courts? We posted on HAFTR’s appeal of a Bet Din award to a teacher. Right or wrong (and the Appellate Division said HAFTR was wrong), HAFTR had, so far as I can tell, no business seeking to have a bet din award vacated in state court.

I have no idea how the Satmar factions justify their drawn-out legal battles in state court. As I noted in a comment to Avrohom’s post on a recent decision in the Satmar litigation, something is seriously wrong when the chillul Hashem rises to the level that a state court judge feels compelled to write:

This is an enormously difficult case, involving as it does a bitter battle between two factions whose differences are extremely hard for outsiders to understand. It has produced, as Justice Barasch tells us in an epilogue to his opinion, attempts by people claiming allegiance to one faction or the other “to discredit, intimidate and improperly influence” the Supreme Court, with the result “that there are judges who would prefer to decline any assignment involving members of this group of litigants” (5 Misc 3d 1023[A], 2004 NY Slip Op 51515[U], *13, *14). I join Justice Barasch—as, I am sure, do all my colleagues—in saying that this behavior is intolerable, and in expressing the hope that the proper authorities will deal with it.

Just the other day, Judge Demarest of the Brooklyn Supreme Court issued an opinion of great interest that we’ll hopefully get to soon.