Reply To: Chometz Now – Where May We Buy it?

Joseph, I don’t see how CM 26:1 is relevant. It says nothing about which laws a beis din should apply. It’s entirely about who should judge cases between Jews. A Jew seeking justice from another Jew must go to Beis Din. But I believe the Beis Din must rule according to local law, and if they don’t know what that is they must take advice or hear expert testimony, just as they do to determine any fact. See Shach 165:8. And there’s another long Shach somewhere on this, but I couldn’t find it at the moment.

However I’m curious. If this is not your understanding, then what do you think “Dina Demalchusa Dina” means? It doesn’t mean, as many mistakenly think, that one must obey the law. If you look at every instance where this memra of Shmuel is cited in the gemara, you will see that it is always talking, not about what one may or may not do, but about the ownership of property. And the very word “Dina” doesn’t mean “halacha”, it means “judgement”, as in “Psak Din”.

It seems clear to me that Dina Demalchusa Dina means that when the state’s laws say Reuven owns this piece of property and Shimon doesn’t, then that is the correct judgment, and a Beis Din must rule accordingly. And the reason it is so is because that is the basis on which people transact business. For instance when one lends to a limited liability corporation one knows that one cannot recover from the shareholders. And Minhag Hatagorim is another example of the same thing; it’s binding because it’s the basis on which one does business. It’s a tnai, and the rule is Kol Tnai Shebemomon Kayom.