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The Torah commands: "Pursue justice, justice" (Devarim 16:20). The gemara (Sanhedrin 32a) says that this refers to justice in din (strict law) and peshara (compromise). How is a dayan supposed to know when to do din and when to do peshara? Is peshara ever required? Is it always permitted?
The basic guideline is based on the following gemara. "Rabbi Yehoshua ben Korcha says: It is a mitzva to [offer a] compromise, as it says: ‘Truth and a judgment of peace you shall judge in your gateways’ (Zecharia 8:16). Isn’t it so that when there is judgment there is not peace, and when there is peace there is not judgment? Which judgment includes peace? This is compromise. What is the mitzva he refers to? The mitzva is to open by saying: ‘Do you want din or peshara?’" Indeed the Shulchan Aruch (Choshen Mishpat 12:2) says that the dayan should open with the question of which type of judgment they prefer.
It is interesting that before the beginning of a process that is supposed to reveal the truth, the dayan is supposed to propose a solution to obviate a proper conclusion. Why run away from justice? The explanation is as follows. When a dayan suggests a peshara before the process begins, he is not forcing anything on anyone. Both parties will have to agree to the peshara alternative; if either side refuses, the hearings will begin normally with no prejudice. Furthermore, in many cases, both sides have strong elements of truth in their claims, but it is difficult for this to find expression in din, where, in general, the one who has more truth or starts with possession wins all. The fact that each side accepts compromise also allows the sides to express that they realize that the other side is not without virtue, which is also an element of justice. The good feeling from the fact that the other side was willing to give up part of what he thinks he deserves certainly adds an element of peace, which Zecharia (see above) connects to justice.
On a practical basis, compromise is usually faster and cheaper. It also takes much less of a toll on one’s nerves, the concentration he needs to succeed in his other involvements, and even, sometimes, his health. One who "wins" does not always win but sometimes, in terms of values that matter, just loses less. It is a required chesed for the dayanim to offer these gains to the sides.
There are times when beit din will have no choice but to employ elements of peshara even within din and even without the permission of the sides, but that is the subject of another discussion. In the meantime, we bless ourselves that our batei din will have the wisdom to find many good solutions for the problems and needs of Am Yisrael in the realm of justice, In doing so, we would be hastening the time about which the navi says: "I will return your judges as of old and your advisors as originally. Then you will be called the city of justice, a faithful inhabitance" (Yeshaya 1:26).
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P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
Chemdat Yamim Moreshet Shaul: The Goal of an Agricultural Yeshiva – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Re'e NEVER EXTREME EXCEPT ISRAEL
Parshat Re'eh
Judaism is against extremism, so how can we understand the seemingly extreme statements found in our sages in favor of living in the Land of Israel and against living in Chutz laAretz? The article deals with the seeming contradiction between the strength of Free-Will and the strength of being influenced by our surroundings.
Ekev DANCE FOR ISRAEL- FOR YOUR BENEFIT
Parshat Eikev
Description: The 7 Haftarot we read after Tisha B'Av ("Shiva D'Nichemta") surely get us excited that they're coming TRUE, and awaken us to yearn, dance & join the return to Zion! The short article also deals with the problems and solutions facing the American Jewish community as discussed at a recent panel, as well as the question why Jews come from America to Israel to help when we face problems, but Israelis don't come to aid Jews in America when they face anti-Semitism.
P'ninat Mishpat P'ninat Mishpat: Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
Chemdat Yamim Moreshet Shaul: Twin Foundations
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 690
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 690
D'varim Judaism’s Social Vision
Re’eh
Giving is more than an act of generosity—it is an essential part of human dignity that belongs to everyone, rich and poor alike. The ultimate goal of help is to empower others to stand on their own.
Kuzari -Rabbi Ari Shvat Kuzari class 9 - "Seeing is Believing" (parag. 21-30)
These paragraphs elaborate on the theme that seeing and knowing is better than any attempt to prove logically, and begins explaining the difference between Israel and gentiles.
