Guidelines for Peshara
One of the aspirations that stood behind the foundation of the network of Eretz Hemdah batei din and continues in its operations is the formation of clear halachic principles upon which the various beit din panels of the network operate. The first step towards realization of this goal is the writing of clear rulings with a detailed presentation of the reasoning of the ruling on halachic and practical grounds. Additionally, Eretz Hemdah is a partner, along with the Mishp’tei Eretz Institute, in the annual symposium of batei din in conjunction with the symposium of the Halichot Olam Institute. At these events, an annual topic is discussed after the presentation of a position paper. In summary of the consensus of the discussion, guidelines are composed on the topic of the symposium. These guidelines are then approved by important dayanim and poskim, led by Harav Yaakov Ariel (Head of the Court in Ramat Gan), Harav Dov Lior, and the heads of the various panels of the Eretz Hemdah beit din network.
This week we will present the guidelines in regard to peshara (compromise). First we note that one type of peshara is one that beit din help the parties arrive at without a decision by beit din. We are discussing peshara that the sides empower beit din to arrive at, without knowing what beit din will decide. Because of the broad authority that beit din has in this regard, guidelines for employing peshara are important. Following are some of the conclusions:
1. A beit din that wants to employ peshara should include in the arbitration agreement, which the parties sign, that beit din is authorized to rule "whether according to law or according to compromise."
2. The common form of peshara that is used in batei din is compromise that is close to the content of the law (see Shut Radbaz IV:164).
3. The agreement to compromise does not include random compromise, and dayanim who practice such a system are to be criticized (Bava Batra 133b).
4. Beit din should not choose to employ peshara when logic and ethics point in the direction of following the simple law (Moznaim Lamishpat 12; Divrei Malkiel II:133). To the contrary, one of the reasons to prefer peshara in certain cases is when the standard halacha brings a result that in a specific case is against a healthy sense of logic (ibid.; Orach Mishpat, Choshen Mishpat 1).
5. One of the prominent circumstances where peshara is called for is when the facts of a case cannot be proven according to the standards of halacha but beit din intuits what actually happened with a reasonable level of certainty (Shulchan Aruch, CM 12:5). Beit din can employ peshara to extract partial payment when there is a minority opinion that supports the defendant, to warrant partial payment when there is an unenforceable moral obligation (Aruch Hashulchan, CM 104:15), in a case of indirect damage (Rav Z.N. Goldberg), and to obligate penalty payments, including those that are only based on halachic precedent or those that originate from local law.
Did you notice any errors?
Any other problems?
Contact us: Beitel@yeshiva.org.il
Subscribe now to receive weekly Shiurim or a Daily Halacha free to your Email box!
Join the warm community of yeshiva.org.il...