Promoting pesharah, compromise, has become a key element in the practice of batei din today. Our present approach, however, evolved from mixed attitudes in earlier generations. In this chapter, we explore the development of pesharah in batei din from Talmudic times until now.1For further discussion of pesharah, see Professor Eliav Shochetman’s Seder Hadin (pp. 207-216) and the sources mentioned there.
Talmudic Background
Although nowadays pesharot play a major role in the rulings of batei din, not all Tannaim viewed them favorably. Rabbi Eliezer ben Rabbi Yose Haglili (Sanhedrin 6b) prohibits encouraging a pesharah, condemning dayanim who promote it as sinners who “insult the Divine!” Rabbi Eliezer ben Rabbi Yose Haglili apparently believes that pesharah compromises judicial integrity. He approves of pesharah outside of the beit din, following the practice of Aharon, who privately coaxed disputing parties into compromising (see Rashi and Tosafot ad loc.). However, he objects to judges veering from the model of Moshe, who imposed rigid justice, “letting the ruling split the mountain” in court.2For Rav Yosef Dov Soloveitchik’s analysis of the roles of Moshe and Aharon, see Reflections of the Rav 1:160-168.
Rabbi Yehoshua ben Korchah adopts the opposite approach to pesharot. He not only permits judges to encourage pesharot, but he even argues that they are performing a mitzvah in doing so. He notes that the prophet Zechariah (8:16) implores judges to pursue both truth and peace. At first glance, these goals appear contradictory, but Rabbi Yehoshua explains that a pesharah achieves both truth and peace. The Halachah follows his opinion (Rambam, Hilchot Sanhedrin 22:4, and Shulchan Aruch, Choshen Mishpat 12:2).
A proper pesharah does not merely divide the responsibility equally between the litigants. In fact, the Gemara (Bava Batra 133b) specifically condemns those judges who routinely engage in this practice, derogatorily referring to them as “midway judges” (dayanei chatzatzta). Moreover, in some ways we treat pesharah as simply an alternative form of true justice. For example, the Shulchan Aruch (Choshen Mishpat 12:2) equates them when he asserts, “Just as the judge is forbidden to pervert din (justice), so too he is forbidden to pervert compromise.” Rav Akiva Eiger adds that just as a judge who rules incorrectly in din must reverse his verdict, so, too, when a judge errs when making a pesharah, his decision should be reversed.
Rav Soloveitchik’s Explanation of Pesharah
In Reflections of the Rav (1:53-54), Rav Yosef Dov Soloveitchik’s eloquent explanation of the distinction between din and pesharah is presented:3Also see Nefesh Harav (pp. 267-268), where Rav Hershel Schachter cites how Rav Soloveitchik commonly used the term yosher (“equity”) in explaining the concept of pesharah.
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 pesharah, however, social harmony is the primary concern of the dayan.4See Rashi (Sanhedrin 6b s.v. Poteir Mayim), who writes that the aim of pesharah is to “bring peace between the parties.” In addition, see Maharsha (Sanhedrin 6b s.v. Oheiv Shalom). 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 socio-economic status and values, as well as the general temper of society are the primary ingredients employed in the pesharah 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, pesharah is the preferred alternative.... Pesharah 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; based on Sanhedrin 6b) rules that a dayan should initially ask the litigants if they wish to engage in pure din or in pesharah. Commentaries to the Shulchan Aruch debate whether he means that dayanim should merely raise the possibility of making a pesharah, or that they should strongly urge the parties to compromise. The Taz, citing the Maharal of Prague, writes that the dayan should suggest pesharah, but he does not have to “pursue pesharah so vigorously.” The Sema (12:6), on the other hand, asserts that the dayan should strongly encourage the litigants to agree to a pesharah by convincing them that pesharah is in their best interest.
The majority of authorities side with the Sema, that dayanim should actively promote pesharah (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 endorse the Sema’s interpretation, as he states, “Any beit din that engages exclusively in pesharah is worthy of praise” (ibid.). Rav Itamar Warhaftig reports that Rav Zalman Nechemia Goldberg tries to motivate people to choose pesharah by informing them that it is faster and cheaper than pursuing a ruling according to strict Halachah.
Indeed, the Shulchan Aruch (C. M. 12:20) goes as far as to say that dayanim should avoid, if at all possible, judging strictly according to din. The Vilna Gaon (Biur Hagra 12:30) cites a passage from the Yerushalmi as a basis for this concept. The Yerushalmi relates that rabbis refused to judge according to strict din for fear that they would err. The corpus of Jewish monetary law, with all its intricate and complex details, intimidates even the greatest scholars. By stating at the outset that they will not judge the case according to strict din, the dayanim obviate concern for errors.
What is Pesharah?
Although we generally translate pesharah as compromise, significant debate surrounds the actual substance of pesharah. Some view the goal of a pesharah as somewhat akin to marriage counseling or mediation - coaxing the parties to accept a compromise. Professor Eliav Shochetman (Seder Hadin pp. 210-211) cites the practice of Tunisian dayanim to suggest a pesharah to each litigant individually, in the absence of his opponent. Thus, neither litigant feels pressure to resist pesharah simply to maintain his dignity and pride in the presence of his opponent. Interestingly, I heard from Rav Israel Leiter (in 1994) that judges in pre-war Galicia also followed this practice.
Moreover, the Tunisian rabbinic court judges (cited in Seder Hadin p. 210) would suggest to the litigants’ friends that they, too, should privately urge the litigants to accept a pesharah. Professor Shochetman compares this approach to asking attorneys to urge their clients to accept a pesharah. Professor Shochetman writes (Seder Hadin p. 211 note 19) that this is a reasonable suggestion only 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.5See the next two chapters where we address the general permissibility of having lawyers in the beit din system.
The practice among all batei din is that if the judges realize that their final ruling will lead to serious fights, and it might lead to the beit din’s ruling being ignored, then they try to convince a litigant to forgive some of the debt in order to preserve and maintain peace.
Rav Yosef Dov Soloveitchik (quoted in Nefesh Harav pp. 267-268) asserts that a pesharah should incorporate lifnim mishurat hadin6We dedicated an earlier chapter to the topic of lifnim mishurat hadin. (beyond the letter of the law) and equity. Rav Soloveitchik’s approach depicts pesharah as a loftier, more ideal form of justice, as opposed to a pragmatic way to preserve peace. Rav Soloveitchik bases his understanding on Rashi and the Ramban (on Devarim 6:18), who seem to equate pesharah with the concept of acting lifnim mishurat hadin.7Whether Rashi in fact equates pesharah with the concept of acting lifnim mishurat hadin might depend on the proper text of his commentary. Commenting on the Torah’s commandment to do “the right and the good in the eyes of God,” some editions read, “This is pesharah and lifnim mishurat hadin,” while other editions omit the word “and.” Without the word “and,” Rashi appears to consider pesharah and lifnim mishurat hadin to be one and the same, but adding the word “and” might indicate that Rashi considers the two concepts to be similar, but not identical. Similarly, the Rama (Choshen Mishpat 12:2) juxtaposes his discussion of pesharah and lifnim mishurat hadin.
In practice, not all rabbinical courts follow the same procedures for pesharah, nor do they all harbor the same attitude towards it.8For example, Rav Itamar Warhaftig told me some of Rav Zalman Nechemia Goldberg’s practices regarding pesharah. When pesharah is chosen by the litigants, Rav Zalman Nechemia considers dinei shamayim (a moral obligation, which beit din cannot enforce as strict din, such as paying for grama, damages that one indirectly causes; see Bava Kama 55b). Rav Zalman Nechemia is unsure whether to consider a litigant’s financial situation when rendering decisions using pesharah. The Beth Din of America (footnote to Rules and Procedures) does not consider the parties’ relative wealth when formulating pesharot. Accordingly, before submitting a case to a particular beit din, one must clarify how the beit din defines and implements pesharah.9For example, the Beth Din of America’s Rules and Procedures specify the following guidelines for pesharah:
(a) In the absence of an agreement by the parties, arbitration by the Beth Din shall take the form of compromise or settlement related to Jewish law (p'shara krova l'din), in each case as determined by a majority of the panel designated by the Beth Din, unless the parties in writing select an alternative Jewish law process of resolution.
(b) The Beth Din will strive to encourage the parties to resolve disputes according to the compromise or settlement related to Jewish law principles (p'shara krova l'din); however, the Beth Din will hear cases both according to Jewish law as it is understood by the arbitrators or compromise (p'shara) alone, if that is the mandate of the parties.
When administering pesharah k’rovah l’din, the Beth Din of America’s guidelines state (in a footnote) that the court does not consider “levels of religiosity, relative wealth of the parties, or gender.” The Beth Din of America’s guidelines are available online at http://www.bethdin.org/rules.htm. They include a footnote that articulates their definition of the difference between pesharah k’rovah l’din and absolute pesharah. See Teshuvot Shevut Yaakov (2:145) for further discussion of the distinction between these two categories.
Pesharah to Avoid Taking an Oath
The Gemara (Sanhedrin 6b) asserts that once the beit din has issued its ruling (gemar din), it is no longer permitted to impose a pesharah.10Rashi (s.v. Nigmar Hadin) indicates that until the beit din actually announces which litigant won the case, it may still suggest a pesharah. Tosafot (s.v. Nigmar Hadin) question whether the beit din’s ability to suggest a pesharah should remain once the dayanim have resolved in their minds how they will rule, even though they have not yet publicized their decision. The Shulchan Aruch (C.M. 12:2) rules in accordance with Rashi. Nevertheless, if the ruling requires a litigant to swear, Tosafot (s.v. Nigmar Hadin) write, “If the beit din concludes that one of the parties is obligated to take an oath, the beit din may suggest a pesharah in order to avoid having an oath taken.” The Shulchan Aruch (C.M. 12:2) codifies Tosafot’s opinion.
Chazal generally hesitated to administer oaths. The Gemara (Shevuot 39a) describes that the entire world shook when God issued the prohibition of swearing falsely. Indeed, the Mishnah (Bava Metzia 33b) tells of people who were willing to spend considerable sums of money rather than take an oath. The consequence of swearing expresses itself in the Talmudic story (Gittin 35a) of a woman who took an oath without realizing that it contained a minuscule falsehood. Soon afterwards, one of her children passed away.11In practice, we should always choose to affirm rather than to swear (see Rambam, Hilchot Shevu’ot 12:12, and Shulchan Aruch, Orach Chaim 156:1). Fortunately, I have heard that American courts accept an affirmation instead of an oath. In Israel, many observant soldiers affirm their loyalty to the army by saying “I proclaim” (ani matzhir) during the swearing-in ceremony, rather than reciting “I swear” (ani nishba). There is one interesting exception, where even nowadays batei din continue to administer oaths. When a husband sends a get (bill of divorce) with an agent, the beit din requires him to swear that he will not nullify the get (Shulchan Aruch, E.H. 154 Seder Haget 76).
Accordingly, it is not surprising that almost all batei din today impose a pesharah when the strict Halachah obligates one of the sides to take an oath. They usually permit a pesharah (in the sense of making peace, not ruling according to equitable presumptions) to deviate up to one third from the monetary award mandated by strict Halachah (seemingly based on Teshuvot Shevut Yaakov 2:145). Indeed, the practice today is not only to suggest a pesharah in this case (as permitted by Tosafot and the Shulchan Aruch) but to impose a pesharah in such a situation.12This practice is evident from Teshuvot Tzitz Eliezer 7:48:6:5, Aseih Lecha Rav 5:42, and Piskei Din Batei Din Harabbaniyim 11:259-274. For example, Rav Itamar Warhaftig recounted that Rav Shlomo Min Hahar (a prominent Jerusalem rabbi) once paid a considerable amount of money in order to avoid an oath. Indeed, Rav Gedalia Schwartz told me that he has never seen an oath taken in any beit din.13However, Rav Itamar Warhaftig told me that he has heard of batei din in Israel administering oaths.
However, Rav Shlomo Levy (Techumin 12:327-334) argues forcefully that, the valid reasons to avoid an oath notwithstanding, the policy of imposing a pesharah instead might be driving thousands of Jews away from litigation in batei din. Without the ability to obtain a ruling according to strict din, many Jews might be opting to instead litigate in civil court (in violation of Halacha). Moreover, Rav Levy argues that the practice of imposing a pesharah may not have such a strong halachic basis. He urges dayanim to strictly curtail the frequency that an oath is replaced by pesharah.14Of course, when the parties are agreeable to mediation, Rav Levy’s concerns do not apply. See Techumin (23:456-460), where Rav Dr. Dov Fogel outlines the benefits of mediation. The RCA Beth Din of America (reported by Rav Yonah Reiss) also has a policy of encouraging mediation as much as possible between parties, especially regarding the monetary aspects of divorce. In fact, Rav Reiss is himself a trained mediator. We should note, though, that mediation is not necessarily identical, either in concept or in practice with pesharah.
Current Practice
Nowadays, batei din often require the litigants to sign a shtar beirurin (binding arbitration agreement; see Mo’eid Katan 18b), which includes a clause empowering dayanim to judge according to either din or pesharah.15See, for example, Rav Zalman Nechemia Goldberg and Rav Mordechai Willig’s prenuptial agreement (for a current version of this document visit www.ocweb.org) where the bride and groom authorize the Beth Din of America to adjudicate disputes based on Halachah or peshara krova la-din. Moreover, some batei din regard a litigant who insists on din and will not agree to pesharah as one who refuses to come to beit din. We see how far batei din often go to strongly encourage the parties to accept pesharah.16See Piskei Din Batei Din Harabbaniyim 11:259 and the analysis by Rav Shlomo Levy (Techumin 12:332-333). Nevertheless, contemporary batei din’s strong encouragement of pesharah does not necessarily preclude them from ruling unequivocally in favor of one party. Rav Mordechai Willig once commented that “100% to 0%” is sometimes an appropriate pesharah.17The Beth Din of America’s Rules and Procedures explicitly state this idea. In some cases, one side presents such a persuasive argument that even a beit din seeking to find a compromise must wholeheartedly accept his claims.