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Shabbat Parashat Tsav| 5766
Mishpat V’halacha B’Yisrael - Part IV - The Document of Arbitration (II)
We continue our series on the guiding principles behind our recently formed beit din.
Last time we explained the importance of a legally valid arbitration agreement and introduced 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.
Tosafot (ad loc.) says that that payment was the actual loss to the orphans, because they would have had to slaughter and sell the animal’s meat at the first possible opportunity due to its situation. Therefore, the specific animal’s actual value was less than usual, and all of its real value was paid. On the other hand, Rashi (ad loc.) explains that since there was not one clear negligent person and another clearly flawless person, we make a compromise between them. Along Rashi’s line, the Rosh (Shut 107:7) uses this gemara as the basis for a broad rule that beit din is mandated to rule based on compromise in a variety of circumstances where a clear-cut ruling is unfeasible. One of the cases the Rosh mentions as appropriate for an extra-judicial ruling is where beit din cannot determine based on standard rules what the true ruling should be. As beit din cannot allow a quarrel to be left open, they are authorized to make a compromise that is fair to the sides based on what is known. The Rosh’s opinion is accepted as halacha by the Shulchan Aruch (Choshen Mishpat 12:5).
One of the classic cases that compromise is used regularly in batei din in our days is in regard to oaths. We avoid administering oaths at almost all costs. When one of the sides is obligated to swear in order to prove his point, we exempt him from the oath but compromise by having him take a reduction from the results he could have possibly received after the oath (after considering the severity of the oath and other factors).
Although, in theory, many cases of compromise can be forced upon the litigants, we will receive the agreement of the parties to this system before commencing the proceedings.
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