Rabbi Michoel Zylberman
Statute of Limitations
Every now and then a party brings a claim to beit din for an outstanding payment (e.g., an unpaid loan, outstanding wages, payment for services rendered) past the expiration of a statute of limitations set by civil law.
At first glance, halakhah does not recognize statutes of limitations for financial claims. If a party owes money, the passage of time does not absolve his payment obligation. Shulchan Arukh (Choshen Mishpat 98:1) rules that a lender may collect a debt reflected in a properly executed loan document even if many years have passed since the loan’s origination. The passage of time does not indicate an implicit forgiveness of the debt.[1]
There are cases, however, where halakhah becomes skeptical of old, lapsed claims. Rosh (Responsa 68:20) addresses a case of a loan document which the creditor sought to enforce thirty years after its date of execution and whose attempted collection involved several irregularities. While not dismissing the admissibility of the loan document out of hand, Rosh writes that a dayan should not adjudicate such a case if he suspects deceit, din merumeh. Rosh notes that his personal practice regarding old, dated loan documents was to independently investigate their legitimacy. If even circumstantial evidence indicated that the claim was deceitful, he would provide the alleged debtor with a letter directing Jewish courts not to adjudicate any claim based on the dated loan document, effectively dismissing the claim.[2]
Netivot Hamishpat (Chiddushim 61:18, cited in Pitchei Teshuvah 61:5) cites a custom to deny collection of any debt arising from an “old document” (shetar yashan), which he defines as three years for an interest-free loan and six years for an interest-bearing investment loan (i.e. for which a heter iska was issued). However, the scope of this custom and whether it ever achieved widespread acceptance is not clear.[3] Rabbi Yitzchak Meir Blasberg (Kovetz Ve-Asita Ha-Yashar Ve–Ha-Tov, vol. 18 p. 165 et seq.) notes that Netivot Hamishpat himself (Bi’urim 61:11) limits this custom to cases where the collection is against the estate or heirs of a deceased debtor. R. Ratzon Arusi, chief rabbi of Kiryat Ono and a member of the Mo’etzet Ha-Rabanut Ha-Rashit (Shaarei Zedek, vol. 2 p. 114 et seq., and Techumin, vol. 21 p. 422 et seq.), demonstrates that this practice was limited to certain locations and times, and the overwhelming practice of most communities was to allow collection of loans reflected in old documents.
Even if halakhah does not internally provide for statutes of limitations, it may recognize statutes of limitations legislated by secular law either through dina de-malkhuta dina (the law of the land) or through minhag ha-sochrim (commercial practice).
Whether dina de-malkhuta dina would allow a beit din to automatically dismiss a claim solely on the basis of an expired statute of limitations may depend on the scope of dina de-malkhuta dina’s application. Shakh (Choshen Mishpat 73:36) restricts dina de-malkhuta dina to legislation that does not contradict halakhah. Rema (Choshen Mishpat 369:11) rules that dina de-malkhuta dina is operative for all civil legislation meant for the betterment of society (tikkun ha-medinah). It is arguable that a civil law statute of limitations clashes with the halakhic rule allowing a creditor to collect on a note “even after many years” (Choshen Mishpat 98:1).[4] At the same time, we may suggest based on Rosh’s position regarding “old documents” and the practice cited by Netivot Hamishpat that a civil law statute of limitations is not “contrary” to Jewish law given halakhah’s internal skepticism of such documents. Some poskim have also questioned whether statutes of limitations provide a sufficient public or governmental benefit (tikkun ha-medinah) to qualify for dina de-malkhuta dina.[5]
Minhag ha-sochrim generally enjoys a wider scope of application than dina de-malkhuta dina.[6] Thus, even if statutes of limitations would not be recognized as valid through dina de-malkhuta dina, they may be recognized via minhag.[7] Pitchei Choshen (Halva’ah Chapter 2 note 72) cites Ben Ish Chai as holding that halakhah does validate statutes of limitations through minhag ha-sochrim. According to one interpretation of minhag ha-sochrim, the mechanism for incorporating a commercial practice into Jewish law is through the parties’ implicit consent to be bound by it. In other words, parties that enter into a contractual agreement implicitly waive their right to advance claims past the statute of limitations, as if it were a self-imposed condition of their deal.[8] Some authorities, however, such as Mishpetei Uziel (4:28), are skeptical of the blanket application of minhag to statutes of limitation. He argues that while under certain circumstances halakhah may defer to secular law statutes of limitations on the basis of minhag, it would be inappropriate to do so when the debt is unambiguous and where there is no credible indication that it was forgiven.
Even if we were to concede that a beit din should generally not dismiss a Jewish law claim because of a civil law statute or commercial practice, a number of contemporary authorities argue that a claim which arises not internally from Jewish law but externally from a civil law statute or from a commercial practice should be subject to statutes of limitations, since the same principles that validate the claim in the first place also invalidate it via a statute of limitations. For example, if an employee were to be entitled to some form of severance not based on halakhah per se but based on a local civil law, and the relevant civil law also recognizes a time-limit on asserting such claims, a beit din should deny the claim on the basis of the statute of limitations.[9]
The Beth Din of America will generally entertain sending out a hazmanah for a claim for which the statute of limitations has expired, but only if the claim has a firm halakhic basis, independent of the jurisdiction’s civil law. Whether the claimant will prevail on such a claim will depend on the case-specific determination of the dayanim.
NOTES
[1] See Shulchan Arukh Even Ha-Ezer 101 regarding a twenty-five year statute of limitations on a widow collecting a ketubah obligation when the actual document was lost, and the contrast to collection of a dowry or a divorcee collecting a ketubah payment for which there is no statute of limitations.
[2] Rosh’s responsum is codified in Shulchan Arukh Choshen Mishpat 98:2, 61:9, and 15:3. See also Shevut Yaakov 3:182. Similarly, see Chatam Sofer (Choshen Mishpat 78) who writes regarding claims made by a former civil servant against a community for unreimbursed expenses that if there was no claim advanced contemporaneously with his work and no written documentation, such claims should not be entertained by a beit din. Chatam Sofer observes that giving credence to such claims would create an untenable situation in which business may be hampered by the fear of having to respond to subsequent frivolous claims.
[3] See Chazon Ish (Choshen Mishpat 24 s.v. be-divrei). Be-Mareh Ha-Bazak, vol. 7 no. 111, cites a directive from beit din records of Kehilat Lita (Lithuania) dating to 1628 that if someone presents a loan document dated more than three years from the date of collection, the beit din has the authority to impose a shevu’a (oath) on the lender to affirm that he had not yet received payment.
[4] There may be greater reason to be skeptical of applying dina de-malkhuta dina to statutes of limitations than to bankruptcy protection. In discussing whether a beit din should send out a hazmanah against a party who has filed for bankruptcy protection (see Iggerot Moshe Choshen Mishpat 2:62), R. Yona Reiss (Kanfei Yona 5:3) notes the position of Rabbenu Yaakov Yisroel quoted in Beit Yosef (Choshen Mishpat 369) that anything that the government is makpid about is subsumed under dina de-malkhuta dina (see also Aliyot De-Rabbenu Yona Bava Batra 55a s.v. ve-arisa). This would be relevant to bankruptcy protection, where the courts would not countenance a beit din attempting to assert jurisdiction in the aftermath of a bankruptcy discharge. However, the courts would not care if parties signed an arbitration agreement that could result in an award for a claim past a statute of limitations.
[5] See R. Ratzon Arusi and Be-Mareh Ha-Bazak cited above.
[6] See Rabbi Itamar Rosensweig, “Minhag Ha-Sochrim: Jewish Law’s Incorporation of Mercantile Customs and Marketplace Norms”, Journal of the Beth Din of America 3, pp. 36-37.
[7] See Yerushalmi cited in Rosh Bava Metzia 7:1.
[8] R. Avraham Sheinfeld (Chok Le-Yisroel Nezikin p. 342 ft. 18) notes that this explanation covers contracts but would not extend to tort liability. For a different explanation of the mechanism and conceptual basis for recognizing commercial custom and how that bears on its application to torts, see Rabbi Rosensweig, “Minhag Ha-Sochrim”, pp. 67.
[9] R. Mendel Shafran, Kovetz Hayashar Ve-Ha-Tov 1, p. 34 et. seq., R. Shlomo Ben Yaakov, Shaarei Zedek 1 p. 149 et seq., R. Arusi cited above. R. Arusi finds this argument compelling but is not prepared to endorse it unequivocally. Be-Mareh Ha-Bazak cited above quotes R. Zalman Nechemia Goldberg as disagreeing with this approach.
