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 Shabbat Parashat Shemini| 5766P’ninat MishpatMishpat Ve halacha Be Israel - Part V - The Document of Arbitration (III)
We continue our series on the guiding principles behind our recently formed beit din.
We have been discussing our arbitration agreement, particularly paragraph 4, regarding choice of approach to the ruling, which we will now restate:
“Possibility 1: Beit din will rule in the matter based on Torah law: according to the strict law or a compromise which is close to the law. If the sides agree, even orally, beit din will be permitted to render a ruling that is based on a full compromise.
“Possibility 2: Beit din will rule in the matter according to its best judgment, [based on informal criteria] based on the evidence before it.”
The source of the concept that beit din can and should employ a compromise which is close to the law stems from the gemara in Bava Metzia (42b). This complex gemara deals with a guardian who entrusted an animal of orphans to a shepherd, and the animal subsequently died of malnutrition because it was missing teeth it needed to graze. There was give and take as to who was responsible for the lack of special care the animal needed. The gemara concludes that the shepherd should pay according to the cheap rate of the value of such an animal’s meat.
We saw last time that Rashi (ad loc.) explains that since there was not one clearly negligent person and another clearly flawless person, we apply a compromise between them. Rashi says that the cheap price for meat, upon which we base the compromise, is two thirds of the normal value. We see from here that even if the compromise is off by a third from the strict law, the settlement can still be considered a “compromise that is close to the law.”
Let us start to introduce the concept of a ruling that is based on beit din’s best judgment (possibility 2). The Rambam (Sanhedrin 24:1) writes as follows: “A dayan is to judge in monetary matters based on things that his mind “leans” to believe are true and the matter is strong in his heart that it is the case, even though there is no a clear proof. It goes without saying that this is so when the matter is known to him, that he should judge based on what he knows. For example, if someone is obligated to swear, and someone who is believed and upon whose words the dayan relies says that that person is suspect of swearing falsely, the dayan should reverse the oath onto the other litigant… and so in similar cases … for the matter is given over to the heart of the dayan, according to what seems to him as the true ruling. If so, why did the Torah require two witnesses? [That is so that] whenever two witnesses will come before the dayan, he will rule according to their testimony even though he does not know if they testified truly or falsely.”
Next week we will continue discussing the matter of that which appears to the dayan to be true.
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