Peshara in Theory and in Practice - Part I by Rabbi Howard Jachter


              This week we will discuss Pesharot, a key element in the practices of Batei Din.  We will focus on different attitudes and approaches regarding them by surveying the sources in the Gemara through contemporary authorities.  For simplicity's sake, a Peshara can be defined as a compromise.  Later we will define the term Peshara more precisely.

Gemara - Sanhedrin 6b

              Although today Pesharot are an essential, if not defining element of Beit Din practice, not all Tanaim viewed them as a positive phenomenon, and certainly not as an ideal.  The Gemara presents the exceptionally strong view of Rav Eliezer ben Rav Yose Haglili who believes that it is forbidden to make a Peshara.  He believes that a Dayan who engages in compromise is a sinner and insults the Divine!  The Gemara presents two situations illustrating the problems with Pesharot.  First of all, in Sefer Breishit  Yehuda offered a compromise between killing Yosef and letting him go free.  The brothers could sell him into slavery, thereby ridding themselves of him without committing murder.  No one would praise Yehuda for making such a suggestion, even though it is a compromise.

              Similarly, the Gemara depicts a scenario in which someone stole wheat, ground it, baked it, and separated Challah from it and wished to recite a Beracha upon performing that Mitzvah (see Rosh Berachot 7:2 for a summary of the opinions regarding reciting a Beracha in this and parallel situations).  The Gemara states that a if this thief recites a Beracha, he insults God.  This can also be understood as depicting the shortcomings of Peshara.  The thief could rationalize that he is not entirely evil - after all, he separated Challah and recited a Beracha.

              Rav Eliezer ben Rav Yose Haglili believes that Peshara compromises judicial integrity.  He agrees that Peshara is acceptable outside of the Beit Din.  After all, Aharon Hakohen made peace outside of Beit Din by talking disputing parties into making compromises (see Rashi and Tosafot).  However, he forcefully argues that judges may not veer from the model of Moshe Rabeinu who had the practice of *8&" %$*0 !; %%9, "letting the ruling split the mountain," and judging strictly (for Rav Soloveitchik's beautiful analysis of the roles of Moshe and Aharon, see "Reflection of the Rav" I:160-168).

              Rav Yehoshua ben Karcha takes the opposite approach to Pesharot.  He believes that not only is it permissible for judges to make Pesharot but it is Mitzva to do so.  He cites the Pasuk from Zecharia which states that the judge should strive in his work to achieve both truth and peace.  At first glance, these would appear to constitute contradictory goals.  Rav Yehoshua explains that a Peshara achieves both truth and peace.  The Halacha follows this opinion (Rambam Hilchot Sanhedrin 22:4 and Shulchan Aruch Choshen Mishpat 12:2).

              Peshara does not merely equally divide up the responsibility between the litigants ("3-* $*0).  In fact, the Gemara (Baba Batra 133b) specifically condemns those judges who routinely engage in this practice.  They derogatorily refer to such judges as $**1* (77;!, mid-way judges.

              In fact, proper Pesharot are more difficult to execute than pure Din is, as is noted by the Yad Ramah (regarding Sanhedrin 23b).  Moreover, Peshara is fundamentally Din as the Shulchan Aruch (Choshen Mishpat 12:2) asserts, "just as the judge is forbidden to prevent Din, so too he is forbidden to prevent compromise."  Rabbi Akiva Eiger adds that just as when a judge errs in Din, his ruling should be reversed, so too when a judge errs when making a Peshara his decision should be reversed.

Rav Soloveitchik's Explanation of Peshara 

              Rav Soloveitchik's most eloquent explanation of the distinctions between Din and Peshara appear in "Reflections of the Rav" (pp.53-54).  He explains that:

              Din pits one party against the other.  The Dayan analyzes the relevant facts of the case and applies the appropriate legal sanctions as described by the Choshen Mishpat.  The law is administrated with cold impartiality and its decisions are dictated by objective data.  One party emerges the victor, his case vindicated.  The plea of the other is denied.  Discord and resentment persist even as the court docket is cleared and the case is closed.  The legal issue has been resolved, but human bitterness continues to fester.

              In Peshara, however, social harmony is the primary concern of the Dayan.  The fine points of the law and the determination of precise facts are of secondary importance.  The goal is not to be judicially astute but to be socially healing.  The psychology of the contenders, their social-economic status and value, as well as the general temper of society are the primary ingredients employed in the Peshara process.  These considerations are evaluated within the broad Halachic parameters of the Choshen Mishpat, and the final resolution of the conflict is a delicate and sensitive blending of both objective legal norms and subjective humanistic goals.  For this reason, Peshara is the preferred alternative...  Peshara is a juridical procedure presided over by the Dayan; it does not contradict the law but is its preferred and finest fulfillment.

Should a Dayan Suggest and Encourage Pesharot?

              The Shulchan Aruch (C.M. 12:2) presents the Gemara (Sanhedrin 6b) which states that the Dayan should ask the litigants if they wish to engage in straight Din or in Peshara.  Commentaries to the Shulchan Aruch debate whether this means that Dayanim should merely suggest making a Peshara or that they should strongly suggest that the parties make a Peshara.  The Taz, citing the Maharal of Prague, writes that the Dayan need only suggest Peshara.  He does not have to "pursue Peshara so vigorously."  The 2/"3, on the other hand, asserts that the Dayan should strongly encourage the litigants to agree to a Peshara.  He writes that the Dayan should try to convince the parties that Peshara is in their interests.

              The preponderance of rabbinic opinion sides with the 2/"3 that Pesharot should be strongly encouraged (Aruch Hashulchan C.M. 12:2, Kovetz Haposkim on C.M. 12:2, and aforementioned comments of Rav Soloveitchik).  In fact, the Shulchan Aruch seems to strongly support the 2/"3 when it states that "any Beit Din which engages exclusively in Peshara is worthy of praise."

              Indeed, the Shulchan Aruch (C.C. 12:20) goes as far as to say that Dayanim should avoid, if at all possible, having to judge strictly according to Din.  The Vilna Goan (Biur Hagra 12:30) explains that the source of this concept is a passage in the Jerusalem Talmud which relates that rabbis refused to judge according to strict Din for fear that they would err.  The corpus of Jewish monetary law is so intricate, complex, and detailed, that even the greatest scholars fear that they may make errors.  By stating at the outset the case that it will not be strictly according to Din, the concern is obviated.

Current Practice

              Current practice is to require the litigants to sign a :)9 "*9&9*0 (binding arbitration agreement, see Moed Katan 18b) which includes a clause empowering Dayanim to judge "*0 -$*0 "*0 -5:9, either according to Din or according to Peshara.  See, for example, the binding arbitration agreement used in conjunction with Rav Zalman Nechemia Goldberg and Rav Mordechai Willig's prenuptial agreements (see "The Prenuptial Agreement" by Rabbis Basil Herring and Kenneth Aumah, pg.51), which contains this clause.

              Moreover, some Batei Din regard a Baal Din who insists on Din and will not agree to Peshara as one who refuses to come to Beit Din (/29" -$*0).  See Piskei Din Rabbaniyim 11:259 and the analysis by Rav Shlomo Levy, Techumin 12:332-333.  We see how far Batei Din must go to adopt the practice of insisting, and not merely encouraging, that the parties agree to Peshara.

Peshara in Theory and in Practice - Part II by Rabbi Howard Jachter

Acting Lifnim Mishurat Hadin by Rabbi Howard Jachter