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

1997/5758

              Last week we discussed the Machloket in Gemara Sanhedrin regarding whether Pesharot, compromises, are permissible or not.  This week we will discuss the details of how Pesharot are put into practice.

What is Peshara?

              Although it is accepted practice to require Baalei Din to give the judges the option to rule according to Peshara, there is significant debate about what a Peshara actually is.

              Some view the goal of a Peshara as somewhat akin to marriage counseling:  To coax the parties to agree to compromise.  Professor Eliav Shochetman (a professor in Jerusalem who has written numerous excellent books and essays on Halacha) in his "Seder Hadin" (pp.210-211) cites the practice among Tunisian Dayanim who viewed Peshara in this manner:  They would suggest a Peshara to each Baal Din individually and not in the presence of his opponent.  The idea behind this is that one would be much less inclined to accept a Peshara in the presence of his opponent, because of consideration of dignity and pride.  Interestingly, I once heard from an older Rav that this was the practice among judges in pre-war Galicia.

              Moreover, the judges would suggest to friends of the Baalei Din (litigants) that they too should privately urge their friends to accept a Peshara.  Professor Shochetman writes that this may be synonymous to asking attorneys to urge their clients to accept a Peshara.  Professor Shochetman writes that this is only a reasonable suggestion if the lawyer practices law ethically, working for the benefit of his client and not seeking to prolong the case in order to increase his "billable hours".

              Rashi and Ramban (on Devarim 6:18) seem to equate Peshara with the concept of acting Lifnim Mishurat Hadin.  Indeed, this seems to be the view of the Rema (C.M. 12:2) since he juxtaposes his discussion of Peshara and Lifnim Mishurat Hadin.  Based on these sources, Rav Soloveitchik (quoted in Rav Hershel Schachter's "Nefesh Harav" pp.269-270) asserts that a Peshara should be a ruling which incorporates Lifnim Mishurat Hadin and Yosher (equity).

              I have read that the Rav once related how Peshara was implemented in Lithuania in a case that occurred in the early part of the twentieth century.  The case involved a poor housekeeper who loaned her one valuable commodity, a family jewel, to her employer on the occasion of a child's wedding.  The employer lost the jewel, thereby devastating the poor housekeeper.

              Strictly speaking, the wealthy employer was not responsible to compensate the housekeeper for her loss because of the rule of "3-*& 3/& (see Mishna, Baba Metzia 8:1 and the illuminating comments and survey of Reb Pinchas Kehati on this issue).  In other words, when the borrower was the employer of the lender, the borrower is not responsible as an ordinary borrower (:&!-) normally is.  Nevertheless, the Beit Din pressured (but did not coerce) the employer's family to agree to a Peshara, which ultimately lead to a decision that the employer should pay ninety percent of the value of the jewel to the housekeeper - a decision based mostly on the equity and not the strict Din.

              Accordingly, some view Peshara as equity while others view it as mediation.  In fact, Teshuvot Maharash Mohalive (C.M. no.9) writes that "the practice is that if the Beit Din realize that their final ruling (528 $*0) will lead to serious fights, and might lead to the Beit Din's ruling being ignored, we try to convince the other side to forgive some of the debt in order to preserve and maintain peace."

              In practice, different rabbinic courts have different procedures and attitudes regarding what exactly Peshara is.  If one is faced with a Din Torah, he must clarify what the Beit Din's definitions and practices are regarding Peshara.  In the prenuptial agreement formulated by Rav Zalman Nechemia Goldberg and Rav Mordechai Willig, Peshara is translated as equity (see "The Prenuptial Agreement" by Rabbis Basil Herring and Kenneth Auman p.51).

Peshara to Avoid Taking a :"&3%

              The Gemara (Sanhedrin 6b) asserts that once the Beit Din has issued its ruling (#/9 $*0), it is no longer permitted to impose a Peshara.  Tosafot (s.v. 1#/9) writes, "...if the Beit Din concludes that one of the parties is obligated to take an oath (:"&3%), the Beit Din may suggest a Peshara in order to avoid having an oath taken."  Tosafot's assertion is incorporated as the Halacha in the Shulchan Aruch (C.M. 12:2).

              Chazal in general were quite fearful of taking oaths. The Gemara (Shavuot 39a) describes that the entire world shook when God issued the prohibition of swearing falsely.  Indeed, Chazal (Mishna Baba Metzia 33b) speak of people willing to spend considerable sums of money so that they don't have to swear falsely.  The reason for the fear of taking oaths is rooted in a story that appears on Gittin 35a which describes the terrible suffering endured by a woman who inadvertently swore falsely.

              Accordingly, we should always choose to affirm rather than to swear (see Rambam Hilchot Shevuot 12:12 and Shulchan Aruch O.C. 156:1).  It should be noted that the U.S. Federal Government, including all fifty states, as well as all other common - law countries accept that an affirmation without any mention of God has the same legal affect as an oath.  Even the United States Constitution provides the president with the option to affirm rather than to swear.

              Accordingly, it is not surprising that almost all Batei Din today impose a Peshara if one of the sides is obligated to take an oath.  They usually follow Teshuvot Sherut Yaakov (2:144) who permits a Peshara (intended to make peace and not to rule according to equitable presumptions) to deviate no more than one-third of what would have been the monetary award in the case according to strict Din.

              Indeed, the practice today is not only to suggest a Peshara in this case (as presented by Tosafot and Shulchan Aruch) but to impose a Peshara in such a situation.  This is evident from Teshuvot Tzitz Eliezer 7:48:6, Aseh Lecha Rav 5:42, and Piskei Din Rabbaniyim 11:269.  Indeed, Rav Gedalia Schwartz (the Halachic head,9!: "*; $*0 , of the Beit Din of America and Chicago Rabbinic Council - who has decades of experience in matters of Gittin and Dinei Torah) told this author that he has never saw an oath taken in any case of any Beit Din.

              Rav Shlomo Levi (the head of the Halacha department at Yeshivat Har Etzion) argues (Techumin 12:327-334) forcefully that although there is good reason to avoid an oath, nevertheless the policy of imposing (not merely suggesting or strongly encouraging) a Peshara instead of taking an oath may be driving thousands of Jews away from coming to Beit Din to resolve their disputes.  Moreover, he argues that this practice may not have such a strong Halachic basis.  He urges Dayanim to strictly curtail the amount of times an oath is replaced by Peshara.

              Next week we will, God willing, explore the status and function of attorneys in Beit Din.  For further discussion of the Peshara issue, see Professor Eliav Schochetman's "Seder Hadin" pp.207-216 and the sources mentioned there.

The Role of Lawyers in Beit Din - Part I by Rabbi Howard Jachter

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