CCAR RESPONSA COMMITTEE
5764.1
Collection of Debts to the Congregation
She’elah.
What are proper and/or acceptable methods for dealing with situations in which congregants and former congregants refuse to pay their debts to the congregation? We already have in place systems for reducing dues and fees, as well as for people making payments over time. We are interested in knowing what further steps we might take, including the sending of dunning notices from an outside service; the use of a collection agency, including credit reporting; and the filing of a lawsuit. (Rabbi Marc J. Belgrad, Buffalo Grove, IL)
Teshuvah.
“The very fact that the question is asked reveals a feeling that it is wrong to bring Jewish religious disputes to the secular courts.” Thus begins a responsum issued by the CCAR Responsa Committee in 1961, dealing with the question of whether a congregation may use legal processes to collect delinquent building pledges.[1] The teshuvah rules that the resort to such processes “is contrary to both the letter and the spirit of Jewish legal tradition” and bases its conclusion primarily upon three points:
1. a building pledge is best understood as a document of gift (shtar matanah), “which cannot legally (in the eyes of Jewish law) be dealt with by the non-Jewish courts”;
2. a long tradition in Jewish law denounces resort to Gentile courts;
3. to bring intra-communal disputes of this nature to the secular courts is a chilul hashem, an action that “profanes God’s holy name.”
This Committee, however, disagrees substantially with the reasoning upon which our predecessors based their decision. Specifically, we take issue with each of the three major points of their 1961 ruling. Although we are most reluctant to see synagogues resort to lawsuits and other legal action in order to collect obligations owed to them, and although we believe that such steps may well be destructive to the ethos of the synagogue and the purposes for which it exists, these measures should be available to congregations as a last resort, when all others have failed.
1. Collection of Debts in Non-Jewish Courts. The 1961 responsum cites a single source (Shulchan Arukh Choshen Mishpat 68:1) to support its contention that the halakhah forbids the resort to Gentile courts in order to enforce “Jewish Documents of Gift.” Yet a careful reading of that text shows that, in fact, it speaks to the opposite situation: the validity of a Gentile Document of Gift in a Jewish court.[2] The Shulchan Arukh adopts the ruling of Maimonides,[3] who declares that a document of gift processed by a Gentile court is invalid under Jewish law and is therefore not enforced by the judges of a Jewish court (beit din).[4] This rule does not address the question before us, and it therefore does not prohibit a synagogue or other Jewish institution from asking a secular court to enforce a monetary pledge that, as the 1961 responsum notes, is considered valid and enforceable under Jewish law.[5]
2. The Prohibition Against Resort to Gentile Courts. The halakhah, to be sure, does record a general prohibition upon Jewish litigants from bringing actions in Gentile courts,[6] and the 1961 responsum cites this “long tradition in Jewish law” as a major justification for its decision. We, however, find the reliance upon this prohibition to be puzzling, for several reasons. First, the earlier responsum acknowledges that this requirement is waived in the event that one of the litigants refuses to appear before or accept the judgment of the Jewish tribunal. If the other litigant finds that he cannot recover his property through the processes of Jewish law, which is certainly the case in the question before us, he may seek redress in the Gentile courts.[7] In other words, while the halakhah demands allegiance to the Jewish legal system, its overriding concern is justice: Jewish individuals and institutions must be able to protect their legal rights, and they are therefore permitted to bring suit before whichever court is empowered to grant that protection. The 1961 responsum, by contrast, suggests that we are somehow less than entitled to this legal redress. Second, as historians and halakhists have written, Jewish courts have lost their juridical autonomy and powers of enforcement during the modern period, and it has therefore become customary for Jews to take their monetary disputes to the civil courts.[8] The 1961 responsum, ironically, would deny to Reform synagogues a legal tool that other Jews, including those in the Orthodox community, accept as normal procedure.[9] Finally, the traditional prohibition simply does not speak to our present-day political situation. We Jews who are full citizens of our nation, who participate in the making and the administration of its law, and who expect and demand equal protection under that law simply do not regard its court system as foreign and alien to us. These are not “Gentile” courts, but our courts, belonging to “us” just as surely as to “them.” To suggest that Jews should not avail themselves of our nation’s courts on the grounds that they are “secular” or “Gentile” tribunals is to imply that our legal position in this society is not that of equal citizenship. We ought to avoid any such implication.[10]
3. Chilul Hashem. The Torah (Leviticus 22:32) forbids us to act in such a way as to profane the holy name of God. What sorts of acts are contemplated by this prohibition? Jewish thought over the centuries has offered several distinct answers to this question.[11] In one familiar usage, this prohibition means that a Jew should not act in such a way as to bring disrepute upon the name of God and upon the people of Israel in the eyes of the nations of the world.[12] Adopting this interpretation, the 1961 responsum suggests that synagogues not bring disputes before the civil courts, for to do so is to invite scandal and, therefore, chilul hashem. Once again, we would dissent from the reasoning in that responsum. Although we do not make light of its concern, we think that it reflects an earlier period in American Jewish life, when genteel antisemitism was rampant, and Jews, as a result, were excessively fearful of presenting a negative image to the general public. Today, thankfully, we are more confident of our position in society. American Jews today can stand up for their rights without fear that doing so will invite scandal. In the contemporary context, to argue for our rights before a court of law is not to court public humiliation or to “wash our dirty linen in public.” It is, rather, to demand the justice to which we are entitled according to the law of the land and according to the dictates of our Torah and tradition. We need not be dissuaded from seeking justice for ourselves on account of our fears as to what others might think of us.
There is, however, another interpretation of chilul hashem, one that makes a much more powerful demand upon us. In both Biblical[13] and Rabbinic teaching,[14] various types of behavior are said to profane the Divine name because they are sharply inconsistent with the moral standards expected of us as a people covenanted with God. These actions are not necessarily “sins”; they do not necessarily violate any explicit prohibitions of the Torah.[15] Nor are they to be avoided primarily because of the negative impression they might make upon Gentile observers. They are “wrong” purely and simply because of the impression they ought to make upon us, because those who strive to be holy should not behave in such a manner. Viewed in this light, our issue takes on a very different cast. The question the congregation should ask itself prior to taking legal action to collect on members’ obligations is not whether such action is permitted under Jewish law (for it manifestly is permitted) but rather whether it accords with our vision of what a synagogue ought to be and of its role in Jewish life.
This question admits of no easy answers. Like all other institutions, a synagogue budgets for its expenses on the basis of projected revenue. Like all other voluntary associations, the contemporary synagogue depends for its revenue upon the willingness of its members to meet their financial obligations. When a member who has the ability to pay a freely accepted obligation to the synagogue refuses to meet that pledge, it is neither “illegal” nor “immoral” for the congregation to take legal action against that individual’s breach of faith.[16] Yet the synagogue is not like all other institutions. It is first and foremost a community of Jews bound together by ties of faith, affection, and mutual concern. These values, which define the synagogue’s mission and form the basis of its spiritual strength and institutional prestige, stand fundamentally at odds with the strife and contention that characterize our overly litigious society. When a synagogue initiates legal action against one of its members, whatever its justification for that action, it embarks upon a course of conduct that is by its nature a bitter and divisive exercise, destructive of the core values that define the synagogue’s mission and purpose. It does something that the synagogue, as the institutional embodiment of our covenant with God, ideally should not do. And for that reason, it may constitute an example of chilul hashem.
Conclusion. Jewish tradition permits a synagogue to undertake legal action to collect debts owed to it by its members. We are not prohibited from seeking justice on these matters in the civil courts. Yet because we are lessened as a religious community when take such steps, we should engage in legal action only as the absolutely last resort, when all other available remedies have been tried and have failed.[17] The choice rests in the hands of the synagogue’s leaders; ultimately, it is for them to decide whether the financial benefit of enforcing a member’s obligations justifies the spiritual price the synagogue shall pay in collecting it.
NOTES
1. American Reform Responsa (ARR), no. 17; CCAR Yearbook 72 (1961), 127-129; http://ccarnet.org/responsa/arr-58-61/.
2. This issue begins with the Mishnah’s declaration that “all documents processed by Gentile courts, even though their signatories are Gentiles, are valid, with the exception of documents of divorce and manumission” (M. Gitin 1:5). The Talmud (BT Gitin 10b) objects that this rule cannot apply to a document of gift (shtar matanah). Unlike a document of sale (shtar mekhirah), which serves merely as evidentiary evidence that a sale has taken place (and was effected through some other instrument, such as money, physical possession, etc.), a document of gift is itself the instrument through which the transaction was effected. How then can a Jewish court accept and enforce such a document if it was processed in a Gentile court? Two possibilities are suggested. The Amora Shmuel says: “the law of the state is valid law” (dina demalkhuta dina): that is, our courts do accept such documents as valid. The anonymous voice (stam) of the Talmud, however, prefers to emend the text of the Mishnah’s rule: “all documents…are valid, with the exception of documents like those of divorce, etc.” In other words, if a document processed by a Gentile court is in itself the instrument through which a legal transaction is effected (as is the case with divorce, which is effected by the document [get] itself), a Jewish court will not accept that document as valid and will not enforce it; see Rashi, ad loc., s.v. tanei chutz.
3. Yad, Malveh Veloveh, 27:1, based upon the Talmudic discussion cited in the preceding note.
4. See Magid Mishneh to Yad, ad loc.: like Rashi (see note 2), Rambam holds that unlike a deed of sale, which serves a purely evidentiary function, a deed of gift is itself the instrument of transaction and is therefore invalid under Jewish law. The Sefer Me’irat Einayim, Choshen Mishpat 68, no. 3, gives a similar explanation to the identical ruling in the Shulchan Arukh.
5. A pledge to tzedakah is considered a vow (neder; Shulchan Arukh Yoreh De`ah 257:3). See also Yoreh De`ah 248:1: the obligation to give tzedakah is enforceable by the court.
6. BT Gitin 88b, a saying of Rabbi Tarfon, based upon a midrash on Exodus 21:1: “These are the laws you shall place before them”–that is, and not before Gentile courts. The prohibition, as enunciated by Maimonides (Yad, Sanhedrin 26:7) and the Shulchan Arukh (Choshen Mishpat 26:1), declares: “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.”
7. This rule is found in the Maimonides and Shulchan Arukh passages cited in the preceding note. The commentaries to those passages (and see also Beit Yosef to Tur, Choshen Mishpat 26) tend to identify BT Bava Kama 92b as the Talmudic source of this rule. Originally, the halakhah specified that a Jew might have recourse to a Gentile court only upon receiving prior permission from the Jewish court. Recently, however, this situation has changed; see the responsum by Kluger in the following note.
8. Among the historians, see especially Menachem Elon, Jewish Law: History, Sources, and Principles (Philadelphia: Jewish Publication Society of America, 1994), 1575-1584. Elon posits that the loss of Jewish juridical autonomy accounts for the lack of significant development in Jewish monetary law (diney mamonot) over the past several centuries. Among the halakhists, see R. Solomon B. Freehof, Reform Responsa (Cincinnati: Hebrew Union College Press, 1960), 7-8: Jewish civil law is now neglected by almost all Jews. “People who surely consider themselves Orthodox have simply ceased to resort to rabbinical courts in business matters” (p. 8). Ironically, Rabbi Freehof is the principal author of the 1961 CCAR responsum that urges a Reform synagogue to observe the prohibition against resorting to non-Jewish courts. The clearest Orthodox halakhic statement concerning this is perhaps the ruling by R. Shelomo Kluger (19th-century Galicia), Resp. Ha’elef Lekha Shelomo, Choshen Mishpat, no. 3. R. Kluger notes that it has become the “widespread custom” (minhag pashut) for Jews to resort to non-Jewish courts even without the prior permission of a beit din, “especially because under the law of the land (dina demalkhuta), Jewish courts are unable to enforce their decisions.”
9. The most interesting example is the prenuptial agreement signed by some Orthodox couples, under which the groom undertakes, in the event of civil divorce, to provide maintenance of his wife at the level set according to Jewish law. This agreement serves as an inducement to the husband to issue a Jewish document of divorce (get piturin) to his wife,who would otherwise be forbidden to remarry under Orthodox auspices, since it is only upon religious divorce that he would be free of the obligation of maintenance. Significantly, this agreement is drawn up as a contract enforceable in a civil court. In other words, at the outset of marriage the couple enter into an agreement that explicitly contemplates the resort to a non-Jewish court, if necessary, in order to secure justice for the wife. See Elyakim Ellinson, “Seruv latet get,” Sinai 69 (Sivan-Tamuz, 5731/1971), 135-168; J. David Bleich, “Modern-Day Agunot: A Proposed Remedy,” Jewish Law Annual 4 (1981), 167-187; J. David Bleich, Contemporary Halakhic Problems, vol. 1 (New York: Ktav/Yeshiva, 1977), 154-159; and Reuven P. Bulka, The RCA Lifecycle Madrikh (New York: Rabbinical Council of America, 1995), 69-75. A similar procedure is utilized by some liberal Jewish communities in Europe.
10. We do not mean to disparage the possibility that Jews in our society might choose to order their affairs through the processes of Jewish law. Some Jews do submit their disputes to a beit din, a rabbinical court that operates according to halakhah, and they agree in advance to accept the decision of that court as binding. There are good reasons, in fact, to recommend such a course, not the least of which is our desire that the long and honored tradition of Jewish civil law be developed and brought up to date through its application to contemporary issues in the areas of torts, obligations, property and the like. All we are saying here is that we Jews who reside in democratic societies should not regard the civil courts of our country as “Gentile” courts that do not belong to us.
11. One of these, not directly relevant to our she’elah, is provided by Maimonides, Yad, Yesodey Hatorah 5:10: any Jew who violates any mitzvah out of his own free choice simply in order to demonstrate his rejection of its authority (lehakhis) is guilty of chilul hashem.
12. See Encyclopedia Talmudit 15:351-356. Among the many examples of this line of interpretation, see the commentaries of Nachmanides to Numbers 14:13 and of Abraham ibn Ezra (both the “long” and the “short” versions) to Exodus 32:12. In these cases, Moses dissuades God from destroying Israel with the argument that such an action would be destructive to God’s reputation in the eyes of the nations. See also Rabban Gamliel’s takanah forbidding Jews from making use of the stolen property of Gentiles on the grounds of chilul hashem; Y. Bava Kama 4:3, 4b.
13. See Amos 2:7, concerning the maltreatment of the poor as well as sexual immorality, and Jeremiah 34:16, concerning the people’s failure to honor the obligation (called a covenant) to set free their indentured servants.
14. See BT Yoma 86a, where the sage Rav declares that he would commit chilul hashem were he to fail to pay his debts to shopkeepers in a timely fashion. See also Rashi to Numbers 25:14. The classic statement of this approach to chilul hashem is Yad, Yesodey Hatorah 5:11.
15. See Yad, Yesodey Hatorah 5:11: when a person known for his righteous behavior commits an act that causes the community to doubt his righteousness, even though that act is not a “sin” per se, he has profaned God’s holy name.
16. Consider, for example, what would happen were the synagogue to fail to pay its own financial obligations. It is most unlikely that the synagogue’s vendors would refrain from taking legal action to collect on those obligations merely because the synagogue is a religious institution.
17. A number of these remedies exist. The congregation can alert all other synagogues in the community that this member has broken faith, so that he or she should not be invited to join any institution within the Jewish community until all past obligations are paid. Similarly, we can tell our members that acceptance of their children to religious school, admission to High Holiday services, and the scheduling of certain life-cycle events are contingent upon payment of financial obligations or the making of acceptable arrangements to do so. Obviously, these steps do not guarantee that financial obligations will be met; still, they are less difficult, divisive, and contentious than the initiation of legal action to collect debts.