Offsetting Loss Through False Claims

Q. I'm buying a house, and the seller has taken unfair advantage of me in many ways that I could never prove. The one case in which he did actually breach the contract by using an unapproved contractor did not actually cause me any loss. Is it ethical to claim that this breach resulted in damages in order to offset the many losses this seller has indeed caused me? HL

A. Let me begin by making clear that only a lawyer can tell you if this course of action is legal, or effective. I can relate only to the ethical aspects of the question. There are two particular ethical pitfalls your suggestion presents.

First of all, you want to use force -- in this case the force of the courts -- to extract money the other side owes you. Since the case you are bringing is not the one that resulted in the debt, this is like any other forcible collection. So the first question is, when is forcible collection ethical?

Jewish law does recognize that a person may have the right to engage in "self-help," but there are important restrictions on this right. The Shulchan Aruch, which is the authoritative code of Jewish law, states that "A person may do justice to himself; if he sees his own property in the hands of someone who stole it, it is permissible to forcibly take it back." However, there is an important condition: "This is true only if he can prove that the object belongs to him." Furthermore, "he is not permitted to collect loans in this way."

One reason for these restrictions is that it would be impossible to maintain law and order if every person was stealing from his neighbor and claiming that he had a right to the property because of some other debt or claim. This opens the door to complete anarchy. This reason is less relevant in your case since you are working through the courts.

But there is also another reason: this course of action doesn't give the other side any ability to have his side of the picture heard. You claim that the seller has taken advantage of you; most likely he has a different point of view. It may very well be that you are right, but the justice of your claim should have some kind of hearing before you take such peremptory action.

The second pitfall is that you are using a false plea in order to press your claim. This is problematic even when there can be no doubt that you are in the right. "Where do we learn that someone who is owed a hundred should not claim two hundred so that the defendant will admit to a hundred and then be required to take an oath, so that I can make him take an oath on other claims as well [according to the laws of procedure in Jewish court]? Scripture states, 'Distance yourself from falsehood.'" (Exodus 23:7.)

The case described is similar to yours: by making a false claim, the plaintiff will have an opportunity to obtain a righteous judgment on a different claim. There is no problem of stealing, because the money is rightfully his; there is no problem of false witness, because a plaintiff is not the same as a witness. (See "Witness Character") But it is falsehood, as well as a cynical use of the court. For that reason it is forbidden by the Torah, which commands us to distance ourselves from falsehood, particularly in the framework of judgment. This should teach us the ideal ethical standard to apply in any court framework.

Making a false or frivolous claim can involve us in many ethical pitfalls. Courts should ideally be used to clarify justice, not to obfuscate it.

SOURCE: Shulchan Arukh Choshen Mishpat 4; Babylonian Talmud Shavuot 31a; Rambam Toen veNitan 16:9.