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Outline Re: The Secular
Enforceability of
Bais Din Judgement

Professor Steven H. Resnicoff

Outline Re: The Secular Enforceability of Bais Din Judgements
Professor Steven H. Resnicoff1
(c) 2000 All rights reserved

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This is a slightly revised version of a handout distributed by Prof. Resnicoff at his presentation at Agudath Israel's Halacha Conference in Manhattan on April 25, 1999. Prof. Resnicoff, who teaches law at DePaul University College of Law in Chicago, is a musmach of Rav Moshe Feinstein, zt"zl, and a graduate of Princeton College, Yale Law School and the Lakewood Yeshiva.


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DISCLAIMER: This has been prepared, and is posted, on the understanding that Prof. Resnicoff is not rendering any legal or other professional service. Instead, this material is for educational purposes only. No one - whether attorney or layman - should rely on this information in dealing with a specific legal matter. Instead, attorneys should research original and fully current sources of authority and laymen should consult attorneys who are licensed in their specific jurisdictions.


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INTRODUCTION

  1. OBJECTIVE

    To have disputes among Jews decided by rabbinic courts and to be able, if necessary, to enforce such rabbinic judgments in secular court.

  2. SECULAR ARBITRATION LAW

      A. Common law arbitration

        1. Did common law arbitration survive the enactment of state arbitration statutes?

        1. This depends on the law in each state. Most states have said that common law arbitration did survive enactment of state arbitration statutes. See, e.g.:

          5A OH Jur.3d, Alternative Dispute Resolution 210;
          14 Summ PA Jur. 2d Insurance 20:8;
          House Grain Co. v. Obst, 659 S.W.2d 903 (Tex.App.-Corpus Christi 1983);

          Blitz v. Beth Isaac Adas Israel Congregation, 352 Md. 31, 720 A.2d 912 (1998) (discussing Maryland law).

        2. As to New York, see:

          Kozlowski v. Seville Syndicate, Inc., 54 Misc.2d 109, 314 N.Y.S.2d 439 (N.Y.Co. 1970)(indicating that common law arbitration survived enactment of state arbitration statute); Hellman v. Wolbrom , 31 A.D.2d 477 (1st Dept.), 298 N.Y.S.2d 540; 5 NY Jur. 2d, Arbitration and Award 247.

        3. As to New Jersey, see:

          Mills v. J. Daunoras Const., Inc. ,278 N.J.Super. 373, 651 A.2d 114 (A.D.1995)(common law arbitration persists); Heffner v. Jacobson , 100 N.J. 554 (1985). See Vincent P. Celli, "Matrimonial Arbitration:

          An Old Technique in a New Home," New Jersey Lawyer (Nov./Dec. 1993). Cf.See also Elmora Hebrew Center, Inc. v. Fishman , 239 N.J. Super. 229, 570 A.2d 1297 (1990) (stating that common law arbitration does not require compliance with all procedural details), aff'd 125 N.J. 404, 593 A.2d 725 (court approving the "analogy" to common law arbitration).

          But see Policeman's Benevolent Association, Local 292 v. Borough of North Haledon , 305 N.J.Super. 454, 703 A.2d 1(1997) (the majority opinion states that there is doubt as to the continued vitality of common law arbitration in New Jersey).

          2. Compare common law versus statutory arbitration as to:

            a. Specific enforcement of the right to arbitrate.

            Generally speaking, a common law agreement to arbitrate will not be specifically enforced, although a secular cause of action might lie for damages arising out of breach of the contract to arbitrate.
            See 5 NY Jur. 2d, Arbitration and Award 249.

            If parties submit to common law arbitration, either party may revoke the submission, even if the language of the submission explicitly states that the submission is not revocable.

            Possible Exception:
            Some authority states that a party cannot revoke a submission simply because it senses defeat in the arbitration.
            See 5 NY Jur. 2d, Arbitration and Award 248.

            1. Specific enforcement of an arbitration award
              Once an award is rendered, the award is specifically enforceable.
              See 5 NY Jur. 2d, Arbitration and Award 248.

          B. Statutory Arbitration

          1. Federal statutes
            E.g., the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq.

            "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. 2.

            See Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995).
            * The FAA is coextensive with the Congressional power to regulate commerce and, where it applies, it preempts any contrary state statute. Thus, in Dobson the FAA preempted an Alabama statute that would have otherwise invalidated a predispute arbitration clause.

            * The FAA was intended "to overturn the traditional common-law hostility to arbitration clauses." Vimar Seguros Y Reaseguros, S.A. v. M/v Sky Reefer, 132 L.Ed.2d 462 (1995).

            See also Doctor's Associates, Inc. v. Casarotto, 134 L.Ed.2d 902 (1996) (FAA preempts Montana law).

          2. State statutes
            1. There may both be general statutes regarding arbitration as well as specific statutes that might mandate or promote arbitration of certain types of disputes.

            2. 34 states and the District of Columbia have enacted some version of the Uniform Arbitration Act, found at 7 U.L.A.. Nevertheless, neither New York nor New Jersey are among those 34 states.

            3. New York's basic arbitration statutes appear at CPLR 7501 et seq.

            4. New Jersey's basic arbitration statutes appear at NJS 2A:24-1 et seq.

  3. WHAT TO LOOK OUT FOR

    1. Drafting the arbitration agreement
      1. Have a written arbitration agreement.
        1. A written arbitration agreement is necessary for secular arbitration statutes to permit specific enforcement of the right to arbitration and enforcement of any arbitration award.
          See, e.g., Izsak v. Izsak, 10/21/96 N.Y.L.J. 31 (col. 4).


        2. It is possible that a person who refuses to execute an arbitration agreement that would be enforceable in secular court "might be considered as if he will not follow the decision of the Jewish court." See Michael Broyde, The Pursuit of Justice and Jewish Law, at p. 45-46, n. 19. If so, a rabbinic court might permit such a person's adversary to proceed to secular court. Id. (referring to the writings of Rav Yosef Eliyahu Henkin).

      2. Attorneys may want to have the written arbitration agreement part of the original commercial contract for various reasons, such as:
        1. To ensure the ability to specifically compel arbitration pursuant to an applicable arbitration statute;
        2. To ensure agreement as to arbitration by a particular rabbinic court.

      3. Irrespective of when the arbitration agreement is executed, attorneys may want to draft the agreement to further their respective clients' interests, for instance, by structuring the order in which issues are to be resolved, by providing (to the extent permitted by secular law) for the confidentiality of information provided or statements made during the arbitration.

      4. Rabbinical courts should have competent legal counsel draft their arbitration agreements and review any agreements proffered by attorneys for the parties.

      5. The arbitration agreement should describe the dispute to be arbitrated. The law is that the arbitrators may not exceed their powers.

        Although some authorities indicate that arguably vague descriptions are not always fatal,

        see, e.g., Meisels v. Uhr, 79 N.Y.2d 526, 583 N.Y.S.2d 951 (1992)(applying NY law); Sound Around, Inc. v. CE Electronic Sales Corp., 1998 WL 199871, not reported in F.Supp. (applying FAA); Kingsbridge Center of Israel, 98 A.D.2d 664, 459 N.Y.S.2d 732 (1st Dept. 1983). See also Mendelsohn v. A & D Catering Corporation, 100 A.D.2d 209, 473 N.Y.S.2d 481 (2d Dept. 1984),

        imprecise or inadequate language has caused serious problems in a number of cases.
        See, e.g., Mikel v. Scharf, 105 Misc.2d 548, 432 N.Y.S.2d 602 (Kings Co. 1980); Heifetz v. Tugendracjh, 542 F.Supp. 1207 (E.D.N.Y. 1982) (applying New York law).

      6. The arbitration agreement must clearly indicate the parties to the agreement. Thus, it must be clear whether an individual is signing an arbitration agreement in his own personal capacity and/or on behalf of an entity, such as a partnership or a corporation. The rabbinical court should consult a competent legal authority to ensure that it has any and all necessary legal documentation to prove that an individual who purports to sign the arbitration agreement on behalf of an entity has the necessary legal authority to bind the entity.

        For miscellaneous cases concerning issues about the capacity in which someone signed an arbitration agreement, see Mikel v. Scharf, 105 Misc.2d 548, 432 N.Y.S.2d 602 (Kings. Co. 1980); Glauber v. Coren, 204 A.D. 2d 389, 614 N.Y.S.2d 602 (2nd Dept. 1994); Sound Around, Inc. v. CE Electronic Sales Corp., 1998 WL 199871 (E.D.N.Y.); Waldman v. Bausk, N.Y.L.J. 2/7/94 (p. 34, col. 2).

        All necessary parties must be part of the arbitration if they are to be bound by it. See, e.g., Levovitz v. Yeshiva Beth Henoch, Inc., 120 A.D.2d 289, 508 N.Y.S.2d 196 (2d Dept. 1986).

      7. Because courts may vacate an arbitration award if the arbitrators demonstrated a "manifest disregard of the law," the arbitration agreement should specify that the arbitrators are to decide according to Jewish law or compromise (or, possibly, whatever the arbitrators believe to be fair under the circumstances).

        Cf. Mastrobuono v. Sshearson Lehman Hutton, Inc., 131 L.Ed.2d 76 (1995) (parties may specify, by contract, rules by which they will arbitrate).

        In the absence of such specification, it is unclear to what extent secular law requires arbitrators to consider the substantive provisions of the secular law in fashioning their award. To some extent, this aspect of secular law may vary from jurisdiction to jurisdiction. See, e.g., Murray S. Levin, "The Role of Substantive Law in Business Arbitration and the Importance of Volition," 35 American Business Law Journal 105 (Fall 1997); John F. X. Peloso and Stuart M. Sarnoff, "Whether Arbitrators Have a Duty to Apply the Law," 4/18/96 N.Y.L.J. 3, (col. 1).

      8. Because any ultimate arbitration award must be "final" if it is to be enforced, the arbitration agreement should clearly state that the parties waive any and all rights to appeal the arbitration to any other court, including any other rabbinic court.

        For a very questionable decision finding a rabbinic award unenforceable because it might be appealed to another rabbinic court, see a Florida case, Ainsworth v. Schoen, 606 So.2d 1275 (Ct.App. 3 Dist.1992). The result in this case could pose serious problems in light of the possibility of an appeal to a "higher" bais din. See The Jewish Press, February 11, 1994, page 3, in which a "public notice" announces what seems to be an "appellate decision" by Rabbis Chaim Pinchus Scheinberg, Tuvia Goldstein and Reuven Feinstein.

        See also E-3, below.

      9. If any specific waivable procedures are to be employed, the arbitration agreement should contain a clear and express waiver.

        For a discussion of proper procedures and of whether noncompliance can be waived:

        See Fein v. Fein, 160 Misc. 2d 760, 610 N.Y.S.2d 1002) (1994); Kozlowski v. Seville Syndicate, Inc., 54 Misc.2d 109, 314 N.Y.S.2d 439 (N.Y.Co. 1970)(indicating that common law arbitration survived enactment of state arbitration statute); Hellman v. Wolbrom, 31 A.D.2d 477 (1st Dept.), 298 N.Y.S.2d 540.

        In a recent case, the court emphasized that a waiver must be in writing. See Matter of Stein, 9/23/99 N.Y.L.J. 30, (col. 2).

      10. Certain procedural rules cannot be waived. For example, under New York's arbitration statute, a party must be entitled to be represented by an attorney, who must be able to introduce evidence and cross-examine witnesses.

        C.P.L.R 7506(d) states:
        "Representation by attorney. A party has the right to be represented by an attorney and may claim such right at any time as to any part of the arbitration or hearings which have not taken place. This right may not be waived. If a party is represented by an attorney, papers to be served on the party shall be served upon his attorney."

        C.P.L.R. 7506(f) states:
        "Except as provided in subdivision (d), a requirement of this section may be waived by written consent of the parties and it is waived if the parties continue with the arbitration without objection."

        See also Mikel v. Scharf, 85 A.D.2d 604 (Kings Co. 1980), 444 N.Y.S.2d 690; Nastasi v. Artenberg, 130 A.D.2d 409, 515 N.Y.S.2d 52 (2d Dep't 1987).

        This does not mean that a party must have an attorney. It only means that a party must be allowed to have one whenever it requests one. Any purported waiver of the right is ineffective.

        One New York court has held that a party cannot waive the disclosure of possible financial bias on behalf of a rabbinic arbitrator.
        See Fein v. Fein, 160 Misc. 2d 760, 610 N.Y.S.2d 1002)(1994): There is no question that some procedural variations may be waived and that some may not [citation omitted] . . . [T]he need to guarantee impartiality of the arbitrator increases in direct proportion to the degree to which the tribunal departs from procedural requirements common to statutory arbitration."

        Similarly, the arbitration procedure may not be "fundamentally unfair." Id.

        Sometimes a party's continued participation in a proceeding may constitute a waiver of objection to jurisdiction, but this may depend on whether or not the arbitration is governed by the Federal Arbitration Act. See, e.g., Matter of Lubin & Schlesinger, Inc. and Scheinberg, 168 Misc.2d 291, 641 N.Y.S.2d 5009 (N.Y. Co. 1996)(although participation may constitute a waiver of objection to jurisdiction under New York's arbitration law, it is not a waiver under the Federal Arbitration Act).

    2. Executing the arbitration agreement
      Before the arbitration agreement is signed, there must be full disclosure of any possible financial biases.

      See Fein v. Fein, 160 Misc. 2d 760, 610 N.Y.S.2d 1002) (1994) (even assuming that an arbitrator attempted to disclose a possible financial bias and a party expressly waived such disclosure, waiver of the disclosure was ineffective in the context of a rabbinic arbitration; consequently, the arbitration award would not be confirmed).

    3. Preserving the right to arbitrate
      After execution of an arbitration agreement, the parties must be careful not to waive their right to arbitrate.

      See, e.g., Doctor's Associates, Inc. v. Distajo, 103 F.3rd 126 (2d Cir. 1997) (parties may waive a right to arbitrate by engaging in "protracted litigation" to the prejudice of the other party or by undue delay in asserting the right to arbitration); Fried Trading Company v. Austern, 1989 WL 13132 (N.D.Ill.); JWC Co. v. Jarnow Corp., 2/9/95 N.Y.L.J. 29, (col. 5)(Sup. Ct., Justice Milano) (defendant waived contractual right to arbitrate when it ignored three letters of hazmanah from the designated rabbinical court).

      An example of a case in which no waiver was found is Congregation Darech Amuno v. Blasof, 226 A.D.2d 236, 640 N.Y.S.2d 564 (1st Dep't 1996).

    4. Conducting the arbitration proceeding
      1. The burden of proving that an arbitration proceeding was irregular is typically borne by the party asserting the error. See, e.g., Kovacs v. Kovacs, 98 Md.App.289, 303-304, 633 A.2d 425 (1993), cert. denied, 1994 (citing cases from various jurisdictions).

      2. Even if a proceeding does not fully comport with an applicable statute, courts in some jurisdictions may enforce an arbitration award so long as all of the parties voluntarily and knowingly agreed to the procedures. See, e.g., Kovacs v. Kovacs, 98 Md.App.289, 303-306, 633 A.2d 425 (1993), cert. denied (agreement to a procedure as provided for by the "Shulchan Oruch (Code of Jewish Law) as interpreted by the Bais Din" constituted a waiver of the requirements of the Maryland arbitration statute). Nevertheless, "if arbitration proceedings do not conform to notions of basic fairness or due process, the court would be justified in refusing to confirm an award." Id., at 304-305.

      3. It is perhaps especially important that the arbitrators not conduct their own investigation (such as by inspecting relevant places, objects or evidence or questioning fact witnesses, expert witnesses or parties) unless all of the parties are present. Not only could such conduct raise halachic problems,* they could prevent any arbitration award from being secularly enforced. Of course the secular problems would be minimized (but still perhaps not eliminated) if, in the arbitration agreement, the parties clearly waive their respective. As to any particular procedure, the advice of competent counsel must be sought.

        * Possible halachic problems include violation of the rule that that forbids a litigant from having discussions with a judge outside of the presence of the other litigant(s).

    5. Issuing the arbitration award
      1. There are formalities that must be satisfied.

      2. Once the award is issued, any effort to "modify" the award is very likely to be ineffective under secular law. Consequently, the bais din should have a competent attorney review the wording of the award BEFORE it is issued.

        See, e.g., Chaco Energy Company v. Thercol Energy Co., 97 N.M. 127, 637 P.2d 558 (1981).

      3. The arbitration award must be "final." See also #A-8, above. The rabbinic court should have a legal authority review it.

        1. It must leave the parties clear as to the resolution of their disputes.

          See Kozlowski v. Seville Syndicate, Inc., 64 Misc.2d 109, 314 N.Y.S.2d 439 (NY Co. 1970) (an award regarding the respective rights of the 3 shareholders of a close corporation was not final because it failed to clarify whether it deprived one of those shareholders of his office or status as a member of the board of directors).

        2. Some cases, however, indicate that an award may contain a provision whereby the rabbinic court retains jurisdiction as to future problems that may arise in connection with implementation of the award.

          See, e.g., Meisels v. Uhr, 79 N.Y.2d 526, 583 N.Y.S.2d 951 (1992); Weisshaus v. Ganli, 7/10/92 N.Y.L.J. 28 (col. 5).

        3. At least one federal court in New York has indicated that there may be secular enforcement of a rabbinic court award of temporary equitable relief.

          See Rakower v. Aker, 1998 WL 432092 (E.D.N.Y. 1998), not reported in F.Supp. This court cited similar rulings by courts in the 6th, 7th and 9th federal circuits.

        4. An award that definitely resolves a separate and independent claim may also be secularly confirmed even if the award does not resolve all of the claims that were submitted to arbitration.

          See Rakower v. Aker, 1998 WL 432092 (E.D.N.Y. 1998), not reported in F.Supp. (citing cases).

    6. Confirming the arbitration award

      1. The award may not be "irrational."

        See, e.g., Mikel v. Scharf, 105 Misc.2d 548, 432 N.Y.S.2d 602 (Kings. Co. 1980); Ostreicher v. Ostreicher, 217 A.D.2d 629 (2d Dist. 1995), 629 N.Y.S.2d 470.

      2. The prevailing party must move to confirm the award within the proper statutorily prescribed time period.

        As to various "timing" problems, see, e.g.
        Katz v. Kar, 192 A.D.2d 695, 597 N.Y.S.2d 135 (2d Dept. 1993)(cause of action could not be maintained when there was a prior arbitration award on the same claim; the failure to confirm the arbitration award within the proper time period was fatal to the plaintiff's claim);

        Sassower v. Greenspan, Kanarek, Jaffe & Funk, 121 A.D.2d 549, 504 N.Y.S.2d 31 (2d Dept. 1986)(failure to comply with statutory method of delivery of award did not toll the one-year statute of limitation under CPLR 7510 in light of the fact that the award was actually delivered);.

        Kilstein v. Agudath Council of Greater New York, Inc., 133 A.D.2d 809, 520 N.Y.S.2d 189 (2d Dept. 1987)(respondent was estopped from denying that its improperly motivated motions for reargument before the rabbinic court tolled the one-year statute of limitations);

        Estate of Haskel Werczberger, 6/26/97, N.Y.L.J. 31, (col. 3).

Miscellaneous issues:

1. Secular courts may not enforce arbitration agreements or arbitration awards as to certain types of matters. Consider the various positions taken by courts as to the following topics:

  1. As to the disputes regarding a will:

    See, e.g. In re Will of Jacobovitz, 58 Misc.2d 330, 295 N.Y.S.2d 527 (Nassau Co. (1968) (wills cannot be arbitrated).

  2. As to child custody and support:
    In New York, it seems that secular courts will not simply enforce child custody or child support arbitration awards, because the courts must ensure that the decisions are in the best interest of the child. See, e.g., Glauber v. Glauber, 600 N.Y.S.2d 740 (2d Dep't 1993) (child custody not arbitrable). See also Matter of Stein, 9/23/99 N.Y. L.J. 30, ( col. 2); Rakoszynski v. Rakoszynski, 11/6/97 N.Y.L.J. 25, (col.5) (child support arbitration award cannot be confirmed when the record is devo id of any information as to what factors were considered by the arbitrators); Stanley G. v. Eileen G., 10/13/94 N.Y.L.J. 22, (col. 6)(rabbinic arbitration panel could not restrict party's future right to apply to secular court for modification of child support); Lemmer v. Lemmer, 9/28/90 N.Y.L.J. 23, (col. 2)(child custody is subject to arbitration but any arbitration award is reviewable by state courts in their role as parens patriae). The rule may be different in other jurisdictions. See, e.g., Dick v. Dick, 210 Mich.App. 576, 587-588, 534 N.W.2d 185 (1995) (child custody and child support are ubject to binding arbitration).

  3. As to prenuptial agreements to arbitrate family dissolution issues in bais din: There is considerable disagreement among courts in various jurisdictions as to whether these prenuptial agreements are specifically enforceable. The New York Court of Appeals, in Avitzur v. Avitzur, 58 N.Y.2d 108, cert. denied, 464 U.S. 817 (1983), enforced such an agreement by a vote of 4 to 3. By contrast, a more recent New Jersey decision expressed agreement with the 3 dissenters in Avitzur. See, e.g., Aflalo v. Aflalo, 295 N.J.Super. 527 (1996).

    For reasons why such agreements, if properly drafted, should be specifically enforced, see, e.g., J. David Bleich, Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement, 16 U.Conn.L.Rev. 201 (1984).

NOTE, however, even if secular law will not enforce a particular rabbinic arbitration agreement or rabbinic arbitration award, this does NOT mean that Jewish law permits the parties to resort directly to secular court. A competent Jewish law authority should be consulted in every instance.

2. The true publication of the fact that a siruv was issued may not give rise to a claim for defamation.

See Neiman Ginsburg & Mairanz v. Goldburg, 179 Misc.2d 125, 684 N.Y.S.2d 405, 1998 N.Y.Slip Op. 98692 (N.Y. Co. 1998). See also Berman v. Shatness Laboratory, 43 A.2d 736, 365 N.Y.S.2d 703 92d Dept. 1973) (although this may have been decided on other grounds).

3. The "threat" of a siruv is not "duress" that invalidates an arbitration agreement.

See Mikel v. Scharf, 105 Misc.2d 548, 432 N.Y.S.2d 602 (Kings Co. 1980);
Greenberg v. Greenberg, 238 A.D. 420, 656 N.Y.S.2d 369 (2d Dept. 1997).

4. Civil courts may not enjoin excommunication.

See Grunwald v. Bornfreund, 696 F.Supp. 838 (E.D.N.Y. 1988)

5. Various additional cases in which rabbinic arbitration decisions have been upheld include:

Friedman v. Penzer, 8/26/96 N.Y.L.J. 31, (col.1);

Holler v. Goldberg, 9/19/94 N.Y.L.J. 27, (col. 1);

Wiesshaus v. Gangl, 7/10/92 N.Y.L.J. 28, (col. 5);

Congregation Darech Amuno v. Blasof, 226 A.D.2d 236, 640 N.Y.S.2d 564 (1st Dep't 1996) (temporary relief granted pending arbitration before rabbinical court);

Millinery Center Synagogue v. Wahrman, 9/19/94 N.Y.L.J. 25, (col. 5).

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Notes

1) Prof. Resnicoff thanks attorneys Ronald Coleman (Pitney, Hardin et al., Morristowm, N.J.), Ira Kasdan ("Of Counsel" to Galland, Kharasch et al., D.C.), Kenneth H. Ryesky (East Northport, NY) and Prof. Michael Broyde (Emory University) for generously sharing information and insights.

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