Hilchos Choshen Mishpat

Volume II : Number 12

Peshara / Compromise In Bais Din

Question:

Reuven has been summoned to a Din Torah by a business colleague. Although he is agreeable to going and finding out whether he is Halachically liable, he is concerned that the Bais Din may arbitrarily impose a settlement, which could be to his detriment. He is therefore asking the Bais Din to clarify what authority they have and what his rights are.

Can a Bais Din arbitrarily impose a compromise upon disputing parties, or only if both agree to compromise may this be done?

Answer:

1. A. After hearing both sides of a case, a Bais Din is permitted to suggest to both parties that they solve their dispute through compromise, if they are willing. They are also permitted to gently try to convince one or both of the parties of the necessity and benefits of compromise, and how much, in their opinion, the defendant should pay the plaintiff.

   This is true even if the Bais Din has already finished their deliberations and have decided how much the defendant is Halachically liable to pay. If the Dayanim feel that for the sake of Shalom (peace) it is worthwhile to try to convince the parties to settle themselves, they may do so in a gentle manner, without imposing a settlement on either side. This is because Shalom must be a primary concern of a Bais Din. Our Rabbis state, "What judgement is there that combines Emes (truth) and Shalom? Peshara!!"

2. B. If any one of the parties is not interested in compromise, and agreed to go to Bais Din only on condition that the Bais Din determine what his Halachic rights are to the best of their ability and not impose any settlement, no Peshara may be imposed involuntarily.

   Similarly, if any one of the parties only agreed to have the case determined in a manner that would involve settlement but would be close to the Din (Peshara Kerova L'Din), but not to have any settlement imposed merely based on the sense of fairness of the Dayanim, the Dayanim would only be permitted to impose a settlement of up to 1/3 of the total verdict. In other words, if the Dayanim find that the plaintiff deserves to be paid $900 by the defendant, for the sake of Shalom or because of other mitigating circumstances they would be permitted to deduct $300 from the amount owed for the sake of compromise. However, the plaintiff would have to receive a minimum of $600.

3. C. If the two parties consent to resolve their dispute in front of a Bais Din without any preconditions, or if they sign an arbitration agreement, as is commonly done today in Batei Din, the Dayanim are permitted to judge as they see fit. They do not need the consent of the parties, but may obligate them to abide by their decision, whether Peshara or Din.

4. D. Just as a Dayan must remain totally objective when deciding who is Halachically correct, so too he must be totally objective when determining what the Peshara should be. He may not favor one party over the other based on friendship, social standing, etc.

5. E. Similarly, just as the Halacha is that a verdict is null and void if a Dayan has made a blatant mistake in his judgement. i.e. it is contrary to what is stated as the concluding Halacha in the Gemara, Shulchan Oruch, or accepted Halachic responsa (To'eh B'Dvar Mishna), so too if a Dayan made a mistake in the process of making a settlement and incorrectly exempted a party from paying something that he is clearly obligated to according to Halacha, the settlement is void and the person must pay his full obligation.

6. F. Based on the above, if, for example, the plaintiff is claiming that he lent the defendant $1000, or that he supplied him with merchandise or services worth $1000, and the defendant has not yet paid him, and it is clear to the Bais Din that this is true (either through witnesses or admission of the defendant), there is no basis on which to make a Peshara in this case, and the Bais Din must obligate the defendant to pay the full amount.

   However, if the Bais Din realizes that it isn't practical for the defendant to pay the full amount at this time, they may allow that the full amount be paid in installments, as they see fit.

   The following situations are some of the cases where there would be basis for a Bais Din to impose a Peshara to resolve a dispute.

   1. If the plaintiff claims that the defendant damaged him, and the Bais Din determines that it was unintentional.

   2. If the facts of the case are under dispute by both parties, and the Bais Din has no way to determine who is correct, but there is circumstantial evidence indicating that one side is correct.

   3. If one of the parties is Halachically obligated to take an oath to back his claim or defense. Today we do not force people to swear in Bais Din, but the Dayanim may decide to "redeem" the oath by paying for part of the claim.

   4. If the situation requires an estimation of the value of a property or a business by experts, and there is disagreement among them as to what the actual value is, the Bais Din would have to make some sort of compromise.

Sources:

The above Halachos are based on the statements of the Shulchan Oruch and the Rema in Choshen Mishpat 12:2, the Bach (4), the S'Mah (6-10), the Shach (5), the Gilyon Rabbi Akiva Eiger, and the Pischei Teshuva there (3-7).

Feedback is appreciated! It can be sent toatendler@torah.org.

This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!