Tzav Menia and Tzav Ikkul: Preventive injunctions and restraining orders in Halacha

Question:

I co-owned a shop in New York with my former business partner. After our relationship soured, he started withdrawing money from our joint account without my approval and even threatened to sell off inventory behind my back. I was terrified he’d drain our assets before we could resolve anything legally, so I filed for a temporary injunction to block him from accessing the account or touching the merchandise until the Beis Din could hear our case. Thankfully, the judge granted it, recognizing the financial damage that could’ve occurred if we didn’t freeze things immediately. Was I in my right to do so Halachcially without first going to a Beis Din?

Answer:

In the event that the other party may not listen to the Beis Din, or there is no time to wait, then it is permissible to go to a secular court so that they issue a temporary injunction and halt proceedings until the matter is clarified in a Beis Din, or until the Beis Din approves handling the case in civil court. However, if both parties would be willing to wait and go to a Beis Din and apply to its injunction, then one should not open proceedings in civil court, unless the matter cannot be delayed at all.

Explanation:

A preventive injunction is intended to ensure that no actions or changes are carried out in an area over which there is a dispute. A preventive injunction is considered a temporary remedy until the final resolution of the dispute in the contested area. Issuing such an injunction is permitted on condition that it is emphasized in court that the matter will be adjudicated in a religious court according to Torah law. The reason that this is permitted and is not prohibited under the prohibition of going to secular courts is because it is a mere temporary solution to prevent monetary loss and is not a final adjudication of the matter. It’s similar to a paramedic applying first aid to an injury until the individual can be brought to the hospital and see a doctor. Now, while ideally it would be proper for the individual to go to a Beis Din for the sake of getting this temporary injunction, this only applies if the other party is God-fearing and would listen to the Beis Din, and if the matter is not urgent and can wait until the Beis Din sends the injunction to the other party. However, if the matter is so urgent that it cannot wait this amount of time, then the person can turn directly to the secular court for the sake of getting the temporary injunction, and then afterwards summon the individual to Beis Din. So is explicitly ruled in the Rameh [Rabbi Menachem Azariah of Fano] Siman 51: When there is a concern of loss — for example, a lender who sees that the borrower is on the verge of bankruptcy and will not be able to collect his debt — it is permitted to turn to the secular courts for the purpose of obtaining a lien. The same law applies for the purpose of obtaining a preventive injunction. However, the Rameh limited this permission only to a case where the other party will not heed the order of the Beis Din. But if both parties will comply with a preventive injunction issued by the Beit Din, there is no permission to turn to the secular courts. Thus also writes the Igros Moshe, Choshen Mishpat, Part 2, Siman 11: It is simple and clear that one cannot refuse to come to Beis Din on the grounds that he claims his opponent went to the secular courts to obtain a lien in order to prevent the opposing party from collecting his money — for this is not considered as “going to secular courts.” It is also clear that if the one now refusing to come to judgment was in fact preceded by the other party, who obtained the lien and went first to the secular courts, this is simply a mistake. Moreover, they cannot now claim in their defense that they are exempt from coming to judgment because the opposing party also went to the secular courts.

Now, just as it is permitted for an individual to go to a secular court for the sake of getting a temporary injunction in order to prevent a potential monetary loss that cannot wait for the rabbinical court, so too the rabbinical court itself may issue a temporary injunction for this purpose without yet hearing both sides, and prior to even having both sides sign an arbitration agreement. Now, while prior to signing such an agreement their injunction has no legal weight and cannot be enforced, nonetheless, when the other party is a God fearing Jew it can be assumed that he will listen to the injunction. Nonetheless, the common practice today is for the rabbinical court to request a deposit from the party asking for the injunction in order to ascertain that they are not coming with a false request simply for the sake of agonizing the other party.

To note from a historical precedent that when the litigation took place over the stolen books from the Rebbes library they went to the secular courts to place a temporary injunction against Barry Gurary to prevent him from selling any more of the books.

Sources: Rameh Mipano 51; Igros Moshe, Choshen Mishpat, 2:11; Ateres Mishpat 17:6; Teshuvos Vehanhagos 3:440; 5:362-2; Beir Sarim C.M. 3 Didan Natzah Bogomilsky p. 67 See regarding the prohibition of going to secular courts: Michaber C.M. 26:1; Rambam Sanhedrin 26:7; Gittin 88b

Summary: Preventive Injunctions and Halachic Guidance

• In urgent situations where financial loss is imminent and a Beis Din (Jewish court) cannot act quickly, it is Halachically permissible to seek a temporary injunction from a secular court to prevent further harm.
• This is allowed as a temporary measure—not a final judgment—until the Beis Din can address the matter.
• If both parties would comply with the Beis Din’s order and the situation is not urgent, one should not approach secular courts.