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Shabbat Parashat Acharei Mot| 5765

Pninat Mishpat

Ability to Appeal a Ruling of Compromise - Based on Piskei Din Rabbaniim - vol. XVII, pp. 158-162
Case: The regional court ruled on the demand for compensation of an employee who was fired. In a ruling they characterized as a p’shara (compromise), the beit din required payment for some of the demands but not on others. The employer appealed certain elements of the ruling to the Supreme Rabbinical Court. The employee responded that it is not possible to appeal a matter that was decided by arbitration.
Ruling: In general, appeal is clearly possible on matters adjudicated by regional batei din to whom the two sides submitted for arbitration. This is explicit in the rules and regulations of the Rabbinical Court system, and one who submits to their jurisdiction accepts those rules, unless an explicit exception is made in the arbitration agreement. In this case, the sides agreed that beit din could rule, whether according to din (strict law) or p’shara.
 However, in this case, there is no room for appeal. This conclusion was arrived at by two of the dayanim in slightly different ways. It is first important to understand that there are two different types of p’sharot. The Shulchan Aruch (Choshen Mishpat 12:5) describes the first as follows. “A dayan has the authority to make a judgment like a compromise in a case where the matter cannot be clarified and he cannot allow the matter leave his hands in an unfinished manner.” The S’ma (ibid.:12) says that such a judicial step can be taken against the will of the litigants. The second type of p’shara refers to a case where the sides agree in advance that the system used for deciding the matter will not be limited to the letter of the law, even where it is possible to determine what the din is. Regarding this second type of p’shara, the litigant’s formal agreement is necessary.
 One dayan saw the ruling that the original beit din categorizedas a p’shara, as the first kind of p’shara. He reasoned that since the matter could not be determined clearly, it was supposed to be decided based on the dayan’s instincts. Such a vague ruling cannot be questioned, because it does not lend itself to an absolute label of correct or mistaken. Another dayan viewedthe ruling as an example of the second type of p’shara, where the dayanim donot need to seek the set din. In such a case, the basis of their decision certainly cannot be questioned [ed. note- unless there is suspicion of corruption]. Although such a p’shara requires the litigants’ agreement, in this case the arbitration agreement they signed included a provision of “whether for din or for p’shara.” The p’shara the sides agreed to includes the second type, as the first type of p’shara does not require their agreement.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.,
Yitzchak Eliezer Ben Avraham Mordechai Jacobson o.b.m.

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