Parties to a din torah frequently ask the Beth Din to award attorney’s fees. This post discusses the extent to which Jewish law requires litigants to bear the costs of their own litigation and under what circumstances the Beth Din is empowered to reallocate those costs and award attorney’s fees to the prevailing party.
In secular law, jurisdictions differ with respect to awarding attorney’s fees to the prevailing party. In the American system,
“parties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser. Under this ‘American Rule,’ we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority.”1
Outside of the U.S., however, the losing party is generally required to pay the prevailing party’s attorney’s fees.2
Jewish law generally requires the parties to bear the cost of their own litigation.3 But Jewish law also recognizes several exceptions where the beit din is empowered to award attorney’s fees and other litigation costs. The four main exceptions are: frivolous claims, suits improperly brought before a secular court, recalcitrant adversaries, and agreements that contain a prevailing party clause.
1. Frivolous Suits
The first exception is when a litigant brings a frivolous suit. Under Jewish law, a litigant can be held liable in tort for intentionally pursuing a meritless claim.4 This position is based on a ruling of Maharam of Ruttenberg, codified by Rama in Shulchan Arukh, which holds a litigant liable for inducing an adversary to incur gratuitous litigation expenses.5 In Maharam’s case, the plaintiff had induced his adversary to travel to a distant court by promising to meet him there to adjudicate their dispute, causing the adversary to incur substantial travel expenses. When the plaintiff failed to appear, Maharam held him liable for the adversary’s expenses. Yeshu’ot Yisrael notes that Maharam’s principle applies with the same force to a litigant who causes his adversary to incur litigation costs by advancing a false or frivolous claim.6
2. Suits Improperly Brought Before a Secular Court
The second exception pertains to suits improperly brought before a secular court.7 When a plaintiff brings a case to secular court contrary to halakhah, his action constitutes a prohibited form of extra-judicial self-help. Rama cites two opinions whether a plaintiff’s improper suit rises to the level of a tort such that the defendant could recover the expenses he incurred as a result of the improper litigation.8 The two opinions turn on whether an attempt to reclaim that which is rightfully yours (le-hotsi et shelo) without intent to harm (lo nitkaven le-hazik) can constitute a tort under the principles of mesirah (informing on a Jew to non-Jewish authorities).9 Shakh rules that it does, thereby allowing a defendant to recover his expenses from being improperly sued in secular court.10
Later poskim impose an important restriction on Shakh’s general rule. They maintain that a defendant who willfully participates in secular court adjudication is deemed to have waived his right to recover litigation expenses. The defendant’s willful participation in the proceedings estops him from asserting a later claim for recovery.11
3. Recalcitrant Adversaries
The third exception is the case of a recalcitrant adversary. Jewish law holds an adversary liable for stonewalling or resisting a claimant’s attempt to commence legitimate litigation.12 This means that the recalcitrant adversary is liable to compensate the claimant for any additional costs he incurred in initiating and compelling arbitration.13
Poskim debate what constitutes “legitimate litigation” for which a claimant can recover gratuitous expenses caused by a recalcitrant adversary. Sema holds that the claimant is entitled to recover such costs only if he ultimately prevails in litigation on the merits of his claims.14 Netivot Hamishpat, citing Tumim, disagrees and allows the claimant to recover so long as he believed in good faith in the merits of his claims (halakh be-temimut ve-hayah sover she-ha-din ‘imo), even if he ultimately lost in litigation.15 Arukh Hashulchan rules in accordance with Netivot Hamishpat and Tumim.16
4. Prevailing Party Clauses
The fourth exception pertains to a case where the parties entered into an agreement with a “prevailing party clause” that provides for the losing party to bear the costs of litigation between the parties, including attorney’s fees. Since Jewish law confers upon parties the power to construct agreements according to their own terms and conditions (kol tenai she-be-mammon kayam),17 such a clause would be enforceable under Jewish law.18 The same would generally be true of an arbitration agreement containing a prevailing party clause.19
In summary, although Jewish law generally requires parties to bear the cost of their own litigation, it recognizes several significant exceptions where the beit din can award attorney’s fees and other litigation costs. The main exceptions are frivolous suits, suits improperly brought before a secular court, recalcitrant adversaries, and disputes governed by a prevailing party clause.
The halakhic basis for recovery varies across the different exceptions. The basis for recovery in frivolous suits and suits improperly brought before a secular court is grounded in tort law. Poskim debate whether the basis for recovery in the case of the recalcitrant adversary is grounded in tort or a specific kenas (fine) instituted to deter litigants from stalling the litigation process.20 The final exception arises in contract, when the parties explicitly agree that the losing party will shoulder the full cost of the litigation for both parties.
As a matter of arbitration law, arbitration panels are empowered to award attorney’s fees and other litigation costs when the arbitration agreement provides for it. Section 28(a) of the Beth Din of America’s Rules and Procedures provides that “The Beth Din may also award attorney’s fees and expenses.” Consistent with Jewish law’s general presumption that each party will bear the cost of its own litigation, the Beth Din of America will generally not award attorney’s fees, unless the claim falls within one of the exceptions outlined above.
For a comprehensive discussion of attorney’s fees in Jewish law, see Rabbi Shlomo Weissmann, “Recovering the Costs of Litigation in Beit Din” Journal of the Beth Din of America 1 (2012), 66-75.
- Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001).
- See W. Kent Davis, “The International View of Attorney Fees in Civil Suits: Why is the United States the ‘Odd Man Out’ in How it Pays its Lawyers,” Arizona Journal of International and Comparative Law 16 (1999), 361.
- Tosafot Sanhedrin 31b s.v. ve-yotsi; Rosh Sanhedrin 3:40; Mordekhai Sanhedrin 707; Beit Yosef Choshen Mishpat 14:5; Shulchan Arukh Choshen Mishpat 14:5.
- Yeshu’ot Yisrael Ein Mishpat 14:4; Piskei Din Rabaniyim 6, pp. 81-84; Piskei Din Rabaniyim 3, pp. 18-39.
- Shulchan Arukh Choshen Mishpat 14:5. Mordekhai Sanhedrin no. 707.
- Yeshu’ot Yisrael Ein Mishpat 14:4. “u-vadai chayav ha-malveh le-hachzir lo ha-hotsa’ot she-harei al yedei kefiyah shelo hutsrakh le-hotsi hotsa’ot ve-harei ibed ma’otav shel ze al yedei geramato… kevan she-al pi diburo hotsi zeh mammono.” Poskim discuss whether this principle is limited to a plaintiff who brings a frivolous action or whether it extends to a defendant who advances frivolous defenses that stall the litigation and drives up litigation costs. For this discussion, see Piskei Din Rabaniyim 6, at 83, Piskei Din Rabaniyim 3, at 18, and Rabbi Shlomo Weissmann, “Recovering the Costs of Litigation in Beit Din” Journal of the Beth Din of America 1 (2012), pg. 70.
- Jewish law generally prohibits litigation in secular court, see Shulchan Arukh Choshen Mishpat 26. See also Rabbi Yaakov Feit, “The Prohibition Against Going to Secular Courts” Journal of the Beth Din of America 1(2012).
- Shulchan Arukh Choshen Mishpat 388:5.
- The plaintiff’s action falls under mesirah because he did not cause the harm directly through his own person (adam ha-mazik) but rather through his use of the non-Jewish court system. Poskim distinguish between two different components of mesirah. The first is that informing constitutes a justiciable tort such that the plaintiff can recover any monetary losses he suffers at the hand of the moser. Second, mesirah usually triggers principles of self-defense on the assumption that the non-Jewish authorities could theoretically impose a violent, life-threatening punishment for even a minor offense. Even if the latter component does not apply in a society with a just rule of law, the former component (recovery in tort) remains in full force. See Pitchei Choshen Nezikin chapter 4 note 1.
- Shakh Choshen Mishpat 388:26.
- Shut Minchat Shai II, no. 60; Shut Teshurat Shai, Mahadura Tinyana, no. 164.
- Shulchan Arukh Choshen Mishpat 14:5.
- Shakh Choshen Mishpat 14:10, citing Yam Shel Shlomo, emphasizes that the claimant can recover only those expenses caused by the adversary’s recalcitrance—not the full cost of the litigation.
- Sema Choshen Mishpat 14:28.
- Netivot Hamishpat Bi’urim 14:4.
- Arukh Hashulchan 14:10. Rishonim debate whether a claimant who permissibly brings an adversary to secular court (e.g., if he does so with the permission of beit din) can recover expenses incurred at the adversary’s recalcitrance. Shulchan Arukh Choshen Mishpat 14:5 cites the Rashba (shu”t no. 940) as holding that such expenses are unrecoverable, while Rama disagrees and holds that they are. See Shulchan Arukh Choshen Mishpat 14:5. Gra (Bi’ur Ha-Gra, Choshen Mishpat 14:30) explains that the two opinions stem from differing conceptions of dina degarmi.
- Talmud Bavli Bava Metsi’a 94a, Shulchan Arukh Choshen Mishpat 291:17 and 305:4.
- Sema Choshen Mishpat 61:12, Minchat Yitschak 5:118.
- Rav Moshe Feinstein, Iggerot Moshe Choshen Mishpat 2:26, discusses whether a prevailing party clause in an arbitration agreement could be invalidated under the rules of asmakhta. (Askmakhta is the Jewish law principle that an agreement can be invalidated if one party lacks the requisite gemirat da’at (intent) to decisively execute the transfer.) Rav Moshe acknowledges that any asmakhta vulnerability can be overcome by performing a valid kinyan on the prevailing party clause or by adding kinyan odita language to the agreement stating that the agreement was entered into before a beit din chashuv (on Asmakhta, see Pitchei Choshen Kinyanim chapter 21). Chatam Sofer (Shu”t Choshen Mishpat no. 66, cited in Pitchei Teshuvah Choshen Mishpat 201:2) maintains that any commercially recognized form of kinyan, such as a legally binding contract, automatically neutralizes any concern of asmakhta. According to the Chatam Sofer’s principle, a legally enforceable arbitration agreement containing a prevailing party clause would be halakhically binding.
- See Iggerot Moshe Choshen Mishpat 2:26.