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Suppose John Doe and James Smith, who are both Christians and members of the same church, sign a contract including the following clause:

Any disputes between John Doe and James Smith shall be resolved in accordance with the Bible text of Matthew 18:15-17 as translated in the King James Version.

Matthew 18:15-17 says:

Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother. But if he will not hear thee, then take with thee one or two more, that in the mouth of two or three witnesses every word may be established. And if he shall neglect to hear them, tell it unto the church: but if he neglect to hear the church, let him be unto thee as an heathen man and a publican.”

Would this have any legal significance? If I understand correctly, it would make the church an arbitrator. Is that right?

Someone
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  • Note that I'm not suggesting or considering signing a contract with a clause like this; I'm just curious what would happen if someone did. – Someone Jun 10 '22 at 03:54
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    In the hypothetical had the church agreed to adjudicate all disputes between them? – George White Jun 10 '22 at 04:52
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    Why do you think this waives their rights under law? – George White Jun 10 '22 at 04:53
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    Yes, the church had agreed to adjudicate any disputes between members. – Someone Jun 10 '22 at 06:25
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    While this makes the church an arbitrator, does it actually bind you to their decision? Read literally, first you try to resolve the issue between the parties. Then if that fails, try again with witnesses. If that fails, let the Church try to resolve it. If that fails, then they will be considered a 'heathen man and publican'. If being considered a 'heathen man and publican' is acceptable to the other party, in lieu of taking the Church's decisions, then the dispute is considered resolved? – Chuu Jun 10 '22 at 13:56
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    @Chuu yes, I believe Jesus (that verse is quoting Jesus) intended that process to avoid lawsuits, so I think "heathen man and publican" is the end of the process. If the process reaches that stage, I believe that phrase is referring to excommunication from the church. So yes, the worst-case scenario is the church says "do this or we excommunicate you" to whoever they found to be in the wrong, and that person chooses one or the other. – Someone Jun 10 '22 at 14:05
  • One could argue that "hear" in "hear the church" does not require compliance with any commands, remedies, etc., only listening to (and perhaps reading) their responses. Often in Christian biblical context "hear" can imply "obey", but that's not in the text. – aschepler Jun 10 '22 at 14:21
  • There are "laws" in the Bible that would be considered illegal in most of modern civilization, e.g. laws governing how much you're allowed to beat your slaves, how to sell your daughter, etc. Presumably, any biblically-based contract which would be against the laws in your country, region, city, etc. would be disallowed. – Darrel Hoffman Jun 10 '22 at 16:58
  • @DarrelHoffman how would that affect using one part of the Bible, which is not illegal, in a contract? The hypothetical contract doesn't say "the entire Bible is binding on the signers," it says one particular passage is. – Someone Jun 10 '22 at 17:11
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    Yeah, just saying you'd have to choose your passages carefully to make sure they're not contrary to the laws where you live. You couldn't just say, e.g. John and James agree to the terms of the book of Leviticus or the like, there's just too much in there that wouldn't be allowed. – Darrel Hoffman Jun 10 '22 at 17:19
  • Would a normal severability clause work in that case, allowing legally-allowable restrictions to remain in force? For example, "Thou shalt not take the name of the Lord thy God in vain" does impose a restriction, but AFAIK it would be enforceable as part of a contract? – Someone Jun 10 '22 at 17:46

4 Answers4

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If Doe and Smith agree with your position that the church will be the arbitrator, they should go unto the church and get their problem resolved, which is in itself significant. If one of them rejects that interpretation, it is possible that one of them will sue in regular court to get the matter resolved. If neither of them accepts that interpretation, that clause will not be part of the legal argument that the court decides on. The court will only touch on this passage if exactly one of the parties agrees with the passage and makes it part of his argument.

Then that person will have the burden of arguing that a certain outcome is mandated by the agreement – for example "this is a binding arbitration clause, you must let The Church decide". The courts will have to consider the evidence that this is indeed what the parties agreed to. It then depends on the evidence that the two sides offer for their positions, as to their respective understandings of the contract language. A preponderance of evidence could favor the interpretation that you offer, but that is a fact-intensive question of Biblical interpretation, and not a legal one.

feetwet
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user6726
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  • Thank you! For a bit more context, supposs Doe accuses Smith of violating the contract. However, instead of following this Biblical procedure, Doe sues Smith. The court would rule whether Doe could sue or had to follow this process? Or, what if they did follow this procedure, and the church decided that Smith did not violate the contract, and Doe then sued Smith. In that case, the court would rule on whether or not the church's decision was binding? – Someone Jun 10 '22 at 06:31
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    Also, would they interpret the text as if it were any other part of a contract, or would they consider the context of it being from the Bible? For example, would they interpret the phrase "if thy brother shall trespass against thee" to literally mean "if your male sibling enters your land without permission" or "if a fellow Christian wrongs you in any way" (the Biblical meaning)? – Someone Jun 10 '22 at 06:35
  • @Someone I'm not a lawyer, but it seems fairly self-evident to me that any stuff in a contract will be interpreted according to their legal meaning, even if the interpretation may be different in a different context. That's why we have lawyers drafting contracts, because language matters. – xLeitix Jun 10 '22 at 12:44
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    @xLeitix Language in contracts definitely does matter, but you can define terms in contracts to mean more or less whatever you want. You can define "yellow" to mean "blue" in a contract if you want and, for the purposes of legal interpretation of that contract, it will mean that. Same goes for laws, actually. It's very common for laws (and regulations) to be preceded by sometimes quite long sections defining terms for purposes of that law/regulation which often differ from the meaning of the same term in other legal contexts (including others laws/regulations.) – reirab Jun 10 '22 at 14:55
  • @Someone a common rule of legal interpretation is that male terms include female and vice versa. Furthermore, when words have multiple senses and a specific sense isn't explicitly identified, the judge gets to decide which sense is intended, and they get to determine that in the linguistic context of the time in which the text was written. So "brother" can mean "fellow human" and "trespass" can have nothing to do with property, even in a purely legal context without the bible having anything to do with it. – phoog Jun 12 '22 at 21:10
  • Thank you @phoog! Would "brother" include someone who is not a Christian and does not claim to be one? Jesus certainly only intended to include believers; would a judge consider that? – Someone Jun 12 '22 at 21:40
  • @Someone "would 'brother' include...?": it depends on context. "Would a judge consider...?": A judge would certainly consider your opinion that Jesus intended to include only believers, if you were a litigant in the case, but the judge might not agree with that opinion. – phoog Jun 13 '22 at 06:59
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You can contract whatever you like

As a dispute resolution clause it seems a bit unclear, particularly since I’m not sure what treating someone as a “Heathen man and a publican”. Since my local publican is a Hindu, I guess that means treat him the same way I always have, have a chat and pay for the beers.

Notwithstanding, there is clearly a cascading ADR going on here:

  1. Negotiate,
  2. Negotiate with witnesses,
  3. Have the church do … something?

The problem here is the clause isn’t clear as to the role of the church. You say they will act as arbitrator but it’s equally arguable that they will be a mediator or conciliator. If the parties don’t agree on what the church is going to do then the last part is likely to be void for uncertainty.

Putting that aside, the structure seems such that a court is likely to refuse to hear a case until the parties have at least tried and failed to comply with the clause. A dispute resolution clause can have an ADR as a binding resolution (i.e. excluding the court altogether) but this one doesn’t do that. However, if there is such a clause, it must be complied with before going to court.

Dale M
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    "You can contract whatever you like" but is it binding? I doubt Shylock's contract with Antonio would be regarded as valid today https://en.wikipedia.org/wiki/Shylock#In_the_play – Dave Gremlin Jun 10 '22 at 12:58
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    In biblical usage, as shown by https://www.merriam-webster.com/dictionary/publican a "publican" means "a Jewish tax collector for the ancient Romans" (it is a traditional but unfortunate translation). Such people were, I understand, avoided or treated with contempt by the early Christians. – David Siegel Jun 10 '22 at 12:59
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    @DavidSiegel Not just ancient Christians. I imagine that most IRS employees are used to having people sneer at them when they say what they do for a living, however undeserved that is. – Barmar Jun 10 '22 at 14:25
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    @Barmar True, but remember that under the Roman "tax-farm" system, a collector had a fixed amount to pay for an area, and was free to keep whatever amount above that he could grab. It amounted to legalized extortion, with the threat of Roman soldiers behind it. Feelings seem to have been much stronger than any about tax officials today, as I understand it. – David Siegel Jun 10 '22 at 14:41
  • I understand the passage; if you interpret 2 as Negotiate (which isn't that far off the mark); you interpret 3 as Negotiate before the church, and the church puts out from itself the one who is at fault if no agreement can be reached. It was a significant threat when there was only one church per city; not much a threat today. – Joshua Jun 11 '22 at 02:37
  • To interpret the passage; it has a hidden assumption that the person applying the text is in the right; and was intended to be applied where the case was obvious. If the case is not obvious and the decision divides the church there's no next step, because it's not meant to be used like that. – Joshua Jun 11 '22 at 02:39
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Similar Agreements Have Been Upheld

The most commonly-cited case is Encore Productions, Inc. v. Promise Keepers, (D. Colo 1999) In this case, a federal district judge held that the following arbitration clause was legally enforceable:

Any claim or dispute arising from or related to this Agreement shall be settled by mediation and, if necessary, legally binding arbitration, in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation. Such arbitration shall be held in Colorado unless otherwise agreed by both parties. Judgment upon an arbitration award may be entered in any court otherwise having jurisdiction.

Crucially, this provision is much more specific about who is to arbitrate and under what process. The agreement also had a choice-of-law clause that bound the arbitrator to reach a decision consistent with Colorado law.

In this ruling, the judge addresses the issue of how a secular court might be put in the position of ruling on theological issues:

A court can, and should, apply neutral principles of law to determine disputed questions that do not implicate religious doctrine. Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). "Neutral principles" are secular legal rules whose application to religious parties or disputes do not entail theological or religious evaluations. See id. I recognize that I must diligently avoid impermissible First Amendment entanglement. However, by employing neutral principles, courts can review decisions of religious bodies within permissible constitutional boundaries. See id. Thus, if cause is later shown to review the Christian Conciliation's arbitration results, a court can do so within the limitations governing review of any arbitration award. This is especially true in this case where the claims do not involve religious determinations or doctrines.

Some Others Have Been Invalidated

For example, in Southern California District Council of the Assemblies of God, Inc., v. Sonlite Tabernacle (Cal. App. 2 Dist.), a church was suing its denomination, whose by-laws called for arbitration by “an ordained minister” in “good standing” with the denomination. The court ruled that “some minimum levels of integrity” required that neither party to the dispute could be the arbitrator as well.

Davislor
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    Thank you! So this means that the court might not rule because a secular court ruling on the meaning of a religious text would violate the First Amendment? – Someone Jun 10 '22 at 22:04
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    @Someone A judge might well rule that the First Amendment does not allow them to decide which side of a theological dispute over what the Bible means is correct, especially if that would mean the government telling a church that it must change its practices. A judge is much more likely to accept that two parties can jointly choose which religious leader shall arbitrate or mediate their case. – Davislor Jun 11 '22 at 02:04
  • @Someone There’s a Christian Conciliation movement that tries to persuade people to write contracts that stipulate the parties use their arbitration services. They have numerous examples of suggested language floating around. – Davislor Jun 11 '22 at 02:12
  • @Davislor: Of course, that's hardly unique to them. Lots of arbitration services try to persuade people to use their services - it's called "marketing." – Kevin Jun 12 '22 at 01:12
  • @Kevin Of course. I bring it up because someone reading their recommendations about what arbitration clause to put in a contract should factor in that they’re marketing their own business. – Davislor Jun 12 '22 at 01:18
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IANAL, but I see this as quite similar to contracts between Jewish parties that specify that any disputes are to be handled by a Beis Din. A Beis Din has two different roles as a court:

  • Matters of primarily (or exclusively) Jewish law - e.g., conversion, divorce. While use of a Beis Din, and who can sit on a Beis Din, will vary by community and by branch of Judaism (Orthodox, Conservative, Reform), this is fairly universal. Most of these (e.g., conversion) are topics where a secular court would have no role. Divorce is a tricky one - there are cases where secular courts have a role in forcing the couple to go to a Beis Din for a Jewish divorce (a Get).

  • Matters of civil law - This can include contract disputes, damages, employment issues, etc. Jewish law, as embodied in the Talmud includes an incredible amount of what we would consider "civil law". Many Jews, particularly Orthodox (but not exclusively, and not all Orthodox) will use a Beis Din to resolve these types of disputes instead of going to a secular court. That can be the case if the parties agree to do so even if the original contract (if there was one) did not require it.

manassehkatz-Moving 2 Codidact
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    Divorce and matters related to children are particularly tricky. Children are necessary parties to cases involving parental responsibilities and aren't competent to bind themselves to arbitration even via their natural guardians. Also, an arbitrator can't grant (or deny) a someone a divorce, although an arbitrator could have authority over some of the issues that arise in a divorce proceeding. – ohwilleke Jun 10 '22 at 20:46