Must a guilty defendant pay for court expenses and litigation fees according to Halacha?[1]

Fees involved in the initial Din Torah:[2] The losing party of a Din Torah is not required to reimburse the winning side for expenses involved. This applies even if he forced the winning party to come to court in a different city, [and there were traveling expenses involved]. If, however, the losing party refused to come to any Beis Din and the winning party had to pay expenses to enforce the losing party to appear, then the losing party is responsible to pay for all the expenses, [beginning from the time that he refused arbitration[3]].

Fees involved in enforcing the court order: If a defendant who was found to be monetarily liable by a Beis Din refuses to pay the plaintiff the money he is owed, then the plaintiff may receive permission from the Beis Din to take him to the civil courts in order to enforce the judgment. All expenses of the plaintiff involved in forcing the defendant to pay is added to the debt of the defendant, and he is obligated to reimburse the plaintiff.[4] This includes court fees, lawyer fees, writ of execution expenses [in Israel known as Hotzah Lepoal].[5] [It, however, does not include travel expenses to collect the money, or bank wiring expenses, and the like.[6]] However, some Poskim[7] rule that if one took the defendant to secular court, the defendant is not obligated to pay for any court fees or lawyer fees of the plaintiff, even though the plaintiff was forced to go to secular court due to the defendant’s refusal to pay.[8] Practically, the main opinion follows the first approach to hold the defendant monetarily liable for all expenses endured in enforcing to him to pay the arbitrated sum to the plaintiff.[9] If, however, the defendant was taken to secular court prior to the plaintiff having received permission from Beis Din, then the defendant cannot be held liable for expenses.[10] [This applies even in a case that the plaintiff did not need permission to go to the secular courts.[11]]

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[1] Michaber ibid; Poskim ibid

[2] Michaber 14:5; Tur 14; Tosafus Sanhedrin 31b; Rosh Sanhedrin 3:40; Mordechai based on Gemara

[3] Rama ibid; Maharik 11; Nemukei Yosef ; Maryu; Teshuvas Harosh 108

[4] Opinion in Rama ibid; Teshuvas Harosh 73:2 and Bava Kama 10:6;  [however see Hagahos Imrei Baruch 14]; Implication of Stam opinion in Michaber ibid; Aruch Hashulchan 14:12 “If the plaintiff has a verdict from the Beis Din and the defendant refuses to comply, then if the plaintiff received permission to go to the secular courts, he may charge the defendant for all the expenses involved in doing so.”

The reason: This is either due to a fine of the Sgaes, or due to Din Grami.

[5] See Michaber ibid fees of “Judges and Toanim”

[6] Shach 14:10; Rashal in Yam Shel Shlomo Bava Kama 10:14; However, see Rosh Kesubos 9:27; Michaber 106:1; See Igros Moshe C.M. 2:26 Anaf 2 regarding if a stipulation for this can be made in the Shtar Borerus

[7] Yeish Mi Sheomer in Michaber ibid; Rivash 475; Teshuvas Rashba 940; Vishev Hakohen 99, brought in Hagahos Imrei Baruch 14 and Pischeiy Teshuvah 14:14 that in truth if the Beis Din does not give permission then this applies even according to Rosh ibid and if it does give permission then it applies even accoridng to the Rashba, and hence there is no dispute. So also writes Maharshdam C.M. 35

[8] The reason: As the defendant’s refusal is a mere Grama/cause of damages, and we do not obligate one to pay for Grama damages. [Rivash ibid]

[9] Rama ibid “So appears to me to be the main opinion”; Beis Yosef 14 “The Rosh’s opinion appears correct”; Rameh Mepuno 89; Shach 14:13; Rashal in Yam Shel Shlomo Bava Kama 10:14; Vishev Hakohen ibid that there is no dispute if received permission from Beis Din; Maznaim Lamishpat C.M. 14:5 that the defendant cannot say Kim Li like the Rashba as its against the ruling of the Rama, as well as that some Poskim learn even the Rashba agrees if permission was given by the Beis Din; Maharshdam C.M. 35; Aruch Hashulchan 14:12

[10] Rama ibid; Vishev Hakohen 99, brought in Pischeiy Teshuvah 14:14

[11] Gloss of Rebbe Akiva Eiger, brought in Pischeiy Teshuvah 14:13

[12] Yeshuos Yisrael 14:5; Rav Zalman Nechemia Goldberg; See Rama 14:5 that if the defendant said that he would come to court and then did not show up that he must pay for expenses