ARR 58-61

CCAR RESPONSA

American Reform Responsa

17. Collecting Synagogue Pledges Through Civil Courts

(Vol. LXII, 1961, pp. 127-129)QUESTION: One of our congregations has used legal processes in collecting delinquent building pledges. Summonses have been issued to defaulting members, placing liens upon their property. Are there any precedents for this action?ANSWER: The very fact that the question is asked reveals a feeling that it is wrong to bring Jewish religious disputes to the secular courts. Of course, it does happen in modern times that such matters have occasionally been brought to the courts in the United States, as, for example, disputes in Orthodox synagogues on the question of mixed seating, or questions of disinterment from Orthodox cemeteries. Nevertheless, whenever such lawsuits do come up, there is a general feeling in the Jewish community that the disputes should never have been brought to the courts–that to have done so was a Chilul Hashem. This strong feeling against such actions is the product of a long tradition in Jewish law. The Talmud (B. Gittin 88b) denounced the resort to Gentile courts. The Takanot of the various medieval Jewish communities forbade Jews to resort to Gentile courts. This tradition is recorded in vigorous language in the Shulchan Aruch, Choshen Mishpat 26.1: “Whoever brings his case before the Gentile courts is a wicked man, whose action amounts to blasphemy and violence against the Law of Moses, our teacher.” Of course, that does not mean that Jews in the past never had recourse to the civil courts. There were circumstances when there was no other way to obtain their rights. If, for example, a debtor was influential and stubborn and refused to be sued in the Jewish courts, he could be sued in the civil courts, usually with the creditor getting express permission from the Jewish authorities (Choshen Mishpat 26.2,4, Isserles). This procedure, as a last resort, is valid because Gentile courts may (according to Jewish law) deal with matters of business debts. This limited validity is acknowledged by Jewish law because the “Children of Noah” are understood to have been commanded to maintain courts dealing with civil law, Dinei Mamonot (cf. B. Gittin 9a-b). If the building pledges discussed in our question are to be considered merely as notes of debt, then, if there is no other way to collect them, it would be permissible to bring them to the civil courts for collection. But surely they are not precisely of the same nature as a business debt. They are rather what the law calls a Shetar Matana, a Document of Gift (Choshen Mishpat 68.1). Jewish Documents of Gift cannot legally (in the eyes of Jewish law) be dealt with by the non-Jewish courts (Choshen Mishpat 68.1). In Jewish law itself, such pledges, certificates of gift, are valid, legal documents. If, for example, Jewish law still had the executive authority which it possessed in past centuries, these pledges could be collected by force. The building pledges are equivalent to charity gifts in general, and are deemed collectible even if the maker of the pledge changes his mind. The law is that the members of the Jewish community may compel each other to give charity–“kofin” (Yoreh De-a 256.5). To give Tsedaka is considered an inescapable religious obligation, Chova, which even the poor must fulfill (Yoreh De-a 248.1). In fact, a promise made to give Tsedaka has the sacred status of a religious vow, Neder (Yoreh De-a 257.3), and, therefore, must be fulfilled without delay. This serious concern with the legal validity of Jewish charity pledges is exclusively a matter of Jewish law. Non-Jewish law can have no relevance to it, unless we say that the pledges are also to be considered analogous to the taxes and imposts which the medieval community imposed upon its members. These, too, were collectible by compulsion. In fact, with regard to taxes and imposts, there are indications that occasionally, in some localities, the power of the civil government was called in to enforce payment. This resort to the secular arm seems to have been confined to Italy. Joseph Colon (Italy, 15th century) says (Responsa, #17) that he sees nothing wrong in asking aid from the government in collecting the taxes imposed by the Jewish community upon its members. In fact, he adds, this has been the custom of many (Italian) communities. Yet, after all, these taxes were to be paid over to the government, and the Jewish community would be endangered if they were not forthcoming. It was understandable, then, that the Italian communities might, in desperation, call for secular aid in collecting them. But even in the case of taxes, there seems to be no evidence that the resort to government help was made by Jewish communities in other countries. Certainly this practice is not recorded in the general codes. The taxes and imposts were by their nature secular and civil. But a gift to the community for the building of a synagogue was a religious gift which was to remain within the Jewish community. Gentile authorities could not and would not be used to enforce an intra-community religious duty. There is only one exception to this, namely, the situation mentioned in the Mishna (Gittin 9.8) in the case of a man ordered by the Jewish court to give his wife a divorce. If he refused to do so, Gentiles may be asked to compel him to obey the mandate of the Jewish court. But even in that case the divorce is not a fully valid divorce (cf. Tur and Perisha, ad loc.). Within the Jewish community and in Jewish law, a pledge to the building of the synagogue is valid and enforceable. The same phrase used in the case of charity gifts is used for synagogue building gifts, namely: “The members of the community may compel each other,” “Kofin zeh et zeh” (Orach Chayim 150.1). To enforce payment, the older communities used the power of excommunication (Cherem). When the Russian government forbade the Jewish communities to employ the Cherem, the phrase “to compel” used in the Shulchan Aruch seemed to reveal a violation of government decree. Therefore, in the Shulchan Aruch printed in Wilna, at the word “compel” there is an asterisk pointing to a footnote which reads: “By means of the government.” This, of course, did not mean that the Jewish communities ever called on the Russian government to enforce this religious obligation. The footnote either was added by the censor, or else was added to disarm the censor and to say that the community would not use the forbidden instrument of Cherem. It is clear, then, that except for the time when Italian communities called for government aid in collecting taxes, the Jewish communities did not call upon secular courts to help them collect charitable or religious pledges. Jewish law considered that secular law could not validly deal with charitable pledges, and in general, the resort to Gentile courts was held to be a sin. Therefore, the action of the congregation referred to is contrary to both the letter and the spirit of Jewish legal tradition.Solomon B. Freehof

If needed, please consult Abbreviations used in CCAR Responsa.