Rabbi Frand on Parshas Yisro
These divrei Torah were adapted from the hashkafa portion of Rabbi Yissocher
Frand's Commuter Chavrusah Tapes on the weekly portion: Tape # 404, Making
A Bracha on a Makom Neis [place of a miracle]. Good Shabbos!
The Winner In A Court Case, Also Loses
Our Sages teach that the reason why Yisro merited to have a parsha in the
Torah named for him was because of the counsel that he gave to his son-in-
law, Moshe. People lined up for Moshe to adjudicate their civil disputes.
Moshe was busy hearing people's disputes the entire day. Yisro saw that
this was very draining on Moshe's time and energy. He gave his famous
advice to set up a hierarchical system of courts. He instructed Moshe "You
shall make known to them the path in which they should go and the deeds
that they should do" [Shmos 18:20].
The Talmud [Bava Metzia 30b] derives two types of instruction from this
pasuk [verse]. "The path in which they should go" refers to the letter of
the law and "the deeds that they should do" refers to action beyond the
letter of the law (lifnim m'shuras hadin).
The concept of lifnim m'shuras hadin is that even in a situation where a
person could take another person to court to enforce his monetary legal
rights and win -- he should still be prepared to compromise more than the
law would require. He should not always enforce his rights.
The Gemara there says in the name of Rabbi Yochanan that Jerusalem was
destroyed because people insisted on enforcing their rights based on Torah
law, rather than accepting the concept of going "beyond the letter of the
law".
This is a rather frightening Gemara. The very term "beyond the letter of
the law" seems to imply that I am fully within my rights to insist on the
letter of the law -- to take my adversary to a 'Din Torah' and to demand
justice. How could it be, then, that Jerusalem was destroyed because
people insisted on their legal rights?
The Chofetz Chaim says that Yisro's advice to Moshe went beyond just
setting up a hierarchical court system. Part of his advice was to teach
the Jewish people that there exists a concept of 'lifnim m'shuras hadin'.
They were to be instructed that it is not always necessary or even
appropriate to insist upon one's rights. There is a place for and a value
in compromise and non- judicial solutions to disputes. That, in and of
itself, was part of the solution of lightening the judicial burden. People
would not always be running to court with every argument. They would start
settling by compromise, outside of court.
In practice, when two people come before a Beis Din [Jewish court], the
first thing that the court advises them is to settle via compromise
(peshara) rather than via a court case (din).
One of the commentaries on Shulchan Aruch, the Sem"ah, questions why the
judges are allowed to implement such a procedure. How can the judge, in
good conscience, advise a party to settle via compromise when he feels
that one of the sides is 100 percent correct, and entitled to full
compensation or restitution?
Normally one is forbidden to give someone bad advice - be it spiritual or
financial. This is included in the prohibition of not placing a stumbling
block in front of a blind person. So if someone has an ironclad contract
and is fully entitled to 100 percent of his claim, why is it not
considered 'bad advice' on the part of the judges to suggest that he
settle via compromise?
The Sem"ah answers that it is never bad advice to suggest compromise. Even
though from a financial perspective, one party may be short changed, the
long term advantage of emerging from the dispute as friends rather than
enemies outweighs any financial loss. One might win the case and receive
his money, but buy an enemy for the rest of his life. Therefore,
compromise is GOOD advice.
Good, you'll nail him. You'll be able to take him to the cleaners. But
then try sitting at the same table with him at a wedding. Try being in the
same room with him. It will never be the same again. When two people go to
court at each other's throats, the winner might win -- but he also loses.
That is the way people are. They do not forget.
This is what the Sem"ah is teaching. "Yes, you might win your case -- but
you will acquire an enemy for life. I'm giving you good advice:
Compromise." This was also the advice that Yisro gave to Moshe. Lighten
the load through compromise. This is good advice for every judge.
Rav Pam commented that now we can understand the Gemara that says
Jerusalem was destroyed because they insisted on adjudicating by Torah
law, rather than going "beyond the letter of the law". We had asked how
that is possible. "It's not fair! Don't I have my rights to a Din Torah?"
The answer is that this Gemara complements another Gemara [Yoma 9b] which
says that Jerusalem was destroyed because of unreasoned hatred (sinas
chinam). How does one acquire sinas chinam? Sinas chinam results from a
society where people act in a "dog eat dog" manner. They are at each
other's throats and are constantly taking each other to court. It is
possible for 10 people seated together at a wedding to refuse to talk to
one another because they all lost court cases with each other.
When the Gemara speaks about a society that insists on Dinei Torah rather
than compromise and lifnim m'shuras hadin, it is talking about a climate
that breeds unreasoned hatred. It was not the lack of lifnim m'shuras hadin
per say, but it was the result of such a society -- namely one filled with
baseless hatred -- that caused the destruction of Jerusalem.
The Fundamental Aspect of Not Swearing In Vain
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The Aseres HaDibros ["Ten Commandments"] are the foundation of the Torah.
The early commentaries show how the Aseres HaDibros include all 613
mitzvos. They are in effect like the "Avos Melachos" - the major categories
from which all the other commandments stem.
The Aseres HaDibros include "I am the L-rd, your G-d"; the prohibition
against idolatry, Shabbos, Honoring Parents, Murder, Adultery, etc. It is
immediately apparent why virtually all of these commandments 'rate' to be
included in this listing of major overriding commandments. But the
commandment not to use the Name of the L-rd in vain -- of swearing without
need -- does not seem to necessarily qualify as a fundamental principle of
the religion.
As an initial reaction, we might wish to answer that not lying is
fundamental because a society based on falsehood cannot survive. However,
the prohibition in the Aseres HaDibros is not against a false oath (Shvuas
sheker). The prohibition is against a vain oath (Shvuas Shav). A vain oath
is swearing the obvious -- that a tree is a tree.
What is so fundamental about not swearing unnecessarily? The sefer Abeeta
Orchosecha explains that the fundamental element is the misuse of the power
of speech. That which separates man from animal is our ability to speak. We
often take speech for granted, but speech distinguishes man from all other
species.
We need to recognize the effects of speech, the power of speech, and the
preciousness of speech. Speech can accomplish so much. Speech can destroy
so much. When a person employs the name of G-d to swear that a tree is a
tree or that a rock is a rock, he is abusing the gift of speech. He is not
taking the import and the impact of speech seriously enough. That is why
making a vain oath rates as one of the Aseres HaDibros. We as human beings
must be constantly aware of the great gift that G-d has given to us:
speech. We must never cheapen that power by using it loosely.
This write-up was adapted from the hashkafa portion of Rabbi Yissocher
Frand's Commuter Chavrusah Torah Tape series on the weekly Torah portion.
The complete list of halachic topics covered in this series for Parshas
Yisro are provided below:
Also Available: Mesorah / Artscroll has published a collection
of Rabbi Frand's essays. The book is entitled:
and is available through your local Hebrew book store or from
Project Genesis, 1-410-654-1799.
