Last week, we discussed the Halachot of Nezek done while playing sports. This week, we shall present an actual case that resulted in a dispute between two Torah Academy of Bergen County students that was presented to this author for adjudication.
Three Procedural Matters
When I realized that the matter was not a simple one and involved a significant amount of money, I asked two TABC colleagues to join me in the Beit Din, in line with the Mishnah’s (Avot 4:8) recommendation (see Tosafot Sanhedrin 5a s.v. Kegon Ana and Shulchan Aruch Choshen Mishpat 3:3) not to sit as a single judge.
Indeed, experience has taught me the importance of following the Mishnah’s advice to avoid adjudicating a financial dispute without the benefit of the partnership of two other competent rabbinical colleagues. The complexity involved in resolving monetary disputes (see Mishnah Bava Batra 175b) requires the grappling and combined wisdom and insight of three Torah scholars to arrive at a proper Halachic decision. In addition, as anyone who serves as a rabbinic judge knows, passions often run very high when a financial matter is disputed, and the losing party will be more likely to accept a ruling of a three-Dayan panel than a decision of an individual Rav. The rabbis on the panel also spare themselves the enmity of the parties, since a three-member panel provides for the privacy of each rabbi, as the Gemara (Sanhedrin 31a) forbids revealing the opinion of each Dayan.
As a matter of proper protocol, I revealed at the outset of the adjudication that I am a distant relative of one of the litigants. Although this relationship was distant to the extent that I was not disqualified to serve as a Dayan (rabbinic judge) in this case, I felt it best to disclose any potential conflict of interest, in line with the Shulchan Aruch’s (Choshen Mishpat chapter 7) exhortation for Dayanim to meticulously avoid any conflict of interest. Indeed, the Beth Din of America requires its Dayanim to list any potential conflict before the start of any hearing.
We should clarify that, upon the urging of the Beit Din, the two litigants agreed that the Dayanim should adjudicate the dispute based on Pesharah Kerovah LeDin, which is a blend of Pesharah, compromise or equity, and Din, strict Halachah. Indeed, the Shulchan Aruch (Choshen Mishpat 12:2 and 20) urges Dayanim to avoid resolving cases solely on the basis of strict Halachah (see Bava Metzia 30b).
Youngster number one was playing basketball by himself when his friend, youngster number two, arrived and asked if he could join him in a competitive game of basketball. Youngster number one replied that he did not want to engage in a game, since he was wearing brand new eyeglasses, and he did not want them to break. Youngster number two then pressured his friend to join him in a competitive game, and youngster number one reluctantly acquiesced. However, youngster number one stipulated before the game began that they would play “not aggressively” to avoid breaking his new eyeglasses.
Not surprisingly, in the course of playing, youngster number two, while “on defense,” tried to “steal” the basketball and caused the eyeglasses to fall and chip to the extent that the eyeglasses were only marginally usable (as determined by the Beit Din). Youngster number one claimed that his friend had played aggressively, in violation of their agreement, and thus was obligated to compensate him for the chipped eyeglasses. Youngster number two disputed this claim, arguing that he did not play aggressively and thus was not obligated to pay.
Applying Tosafot’s Jousting Case
In our previous issue, we cited Tosafot (Sukkah 45a s.v. MiYad), who write, “We may learn from this regarding those young people who ride horses towards a groom, and they fight each other (i.e., jousting), and in the process tear the other parties’ clothes or damage the other party’s horse, that they are excused from damages, since this is a common practice in order to enhance the rejoicing at a wedding party.”
We explained that when one agrees to joust, one understands the risks involved, and thus one implicitly is Mocheil (waives the right to sue for) damages done to him. Rama (Choshen Mishpat 378:9) rules in accordance with Tosafot, and no commentators dissent. However, in this case, youngster number one specifically was Moseir Moda’ah (issued a disclaimer) saying that he was not Mocheil damage to his eyeglasses.
On the other hand, the stipulation to play “not aggressively” was vague. When the disputants reenacted the incident in the presence of the Beit Din, it was difficult to determine whether youngster number two violated the agreement. Since the rabbis who sat on this Beit Din (each of whom had extensive experience playing basketball when they were youngsters) determined that it was impossible to decide if youngster number two played “aggressively,” strict Halachah could not obligate youngster number two to pay for the damage. A major principle of deciding monetary issues is, “HaMotzi MeiChaveiro Alav HaRa’ayah,” the burden of proof falls upon the one who demands payment (Bava Kama 46a). Moreover, this scenario is reminiscent of the Teshuvat HaRosh cited in the Tur (C.M. 421), which states that “it is impossible for players to be precise.” Thus, it is unreasonable, once the boys agreed to play competitively, for one to expect the other to be precise in his playing “not aggressively.” Thus, strict Halachah would not obligate youngster number two to compensate his friend for the chipped eyeglasses.
Pesharah Kerovah LeDin
However, the youngsters had agreed to adjudicate their dispute in accordance with Pesharah Kerovah LeDin, as we noted earlier. The Beth Din of America, in its rules and proceedings (available at www.bethdin.org), explains Pesharah Kerovah LeDin: “Compromise or settlement related to Jewish law principles (Peshara Kerovah Ledin) is a process in which the relative equities of the party’s claims are considered in determining the award. For example, in Jewish law (Din), the party that proves the ‘truthfulness’ of its case ‘more likely than not,’ as well as proving the Jewish law basis for its entitlement, is qualified to recover 100% of the amount sought, whereas in compromise or settlement related to Jewish law principles (Pesharah Kerovah LeDin) such a party would not necessarily recover 100% of the amount sought, depending on that party's conduct throughout the matter under dispute. So too, in a case where neither party proves the ‘truthfulness’ of its case ‘more likely than not,’ or does not prove the Jewish law basis for its entitlement, Jewish law (Din) would not provide for an award, whereas compromise or settlement related to Jewish law principles (Pesharah Kerovah LeDin) could provide for an award in that case.”
Moreover, the preamble to the Beth Din’s Rules and Procedures states, “These Rules of Procedure are designed to provide for a process of dispute resolution in a Beth Din which are in consonance with the demands of Jewish law that one diligently pursue justice, while also recognizing the values of peace and compromise.”
In addition, a document signed by leading (especially in the area of financial adjudication) Halachic authorities of Israel’s Religious Zionist community, such as Rav Yaakov Ariel, Rav Ratzon Arussi, and Rav Dov Lior, articulates the principles of Pesharah Kerovah LeDin (Techumin 30:338). In a footnote, they cite as one of their principles a statement of Rav Avraham Yitzchak HaKohen Kook (Teshuvot Orach Mishpat C.M. 1): “One of the considerations to prefer Pesharah is in circumstances when ‘the Din contradicts one’s sense of fairness (“Yosher HaSichli”)’ in light of the circumstances of the specific situation being adjudicated.”
Application to our Dispute
Although, strictly speaking, youngster number two is not obligated to pay, he does nonetheless share some of the blame for this mishap with the glasses. Indeed, youngster number one imprudently agreed to play, not realizing the imprecision of their agreement and not recognizing that eyeglasses can be broken while playing competitively, even if the agreement was to play “not aggressively.” However, youngster number two did not act properly by pressuring his friend to play competitively when he did not truly wish to do so.
The prohibition of Lo Tachmod (Shemot 20:14) forbids one to pressure another to sell or give him an item he desires (Shulchan Aruch C.M. 359:10). While youngster number two probably did not covet a specific item, nonetheless the prohibition of Lo Tachmod teaches that it is wrong to pressure someone to do something he does not wish to do. Indeed, the Shulchan Aruch (Even HaEzer 154:21) does not permit pressuring a husband to give his wife a Get, unless the husband’s improper behavior justifies such pressure (see Gray Matter 1:19 for further discussion of this issue).
Accordingly, the Beit Din considered the “party’s conduct throughout the matter under dispute” and determined that “Yosher HaSichli” demanded that youngster number two partially compensate his friend for the chipped eyeglasses. The Beit Din followed the approach of the Teshuvot Shevut Yaakov cited in Pitchei Teshuvah (C.M. 12:3), “The Dayanim crafting the Pesharah are empowered to act in accordance with the essence of the matter, in light of his perception of the issue, with the goal of reconciling the parties without favoring one party over another.” In this case in which the parties agreed to Pesharah Kerovah LeDin, it appears that reducing one-third of the obligation is considered to be Kerovah LeDin.
In our case, the erstwhile friends had grown resentful of each other. Youngster number one was upset that his schoolmate did not assume responsibility for his misjudgment, and youngster number two resented the fact that his friend was shifting all of the blame to him. Thus, the Beit Din decided that both equity and compromise called for youngster number two to pay one-third of the cost to repair the eyeglasses. The Beit Din, in turn, required youngster number one to engage in due diligence in finding the lowest price for competent repair of his eyeglasses. After comparing prices, he found someone who could make the repair for one hundred dollars. The Beit Din thereupon ordered youngster number two to pay thirty-three dollars.
Indeed, although the Rama (C.M. 378:9) codifies the aforementioned Tosafot exempting jousters from tort liability, and the commentatators do not dissent, the Aruch HaShulchan (C.M. 378:21) adds, “If it appears to the Beit Din that they need to take preventative action to avoid improper behavior, they are authorized to obligate the Mazik (the one who caused the damage) because many problems can arise.” The Beit Din’s ruling is in harmony with the Aruch HaShulchan’s opinion that Tosafot’s “sports exemption” is not absolute.
This ruling of the Beit Din achieved its goal of meeting the demands of Halachah to diligently pursue justice, while also recognizing the values of peace and compromise.
Although at first a bit resistant to the Beit Din’s ruling, the two schoolmates accepted the decision. After the Beit Din facilitated both sides’ assuming partial rsponsibility for the mishap, the two schoolmates reconciled and resumed their friendship.