Shabbat Parashat Behar| 5765
Do Standard Compromises Need to be Accepted by Both Sides? - Based on Piskei Din Rabbaniim - vol. XII, pp.247-248
Case: [Instead of summarizing a whole case, which, in this case, was a very complex one, we want to focus on one issue which is discussed within the context of the din Torah.] Usually, sides agree in the arbitration agreement that beit din’s rulingcan be either according to the strict law or according to the rules of compromise. In this case, while the defendants agreed to adjudicate in beit din, they stipulated that beit din would be authorized to rule only according to the strict law. The plaintiff signed the arbitration agreement without stipulation. It appeared that the defendants would have to accept a cherem according to the strict law in order to exempt themselves from payment. (Cherem is a weaker alternative to an oath, by which the defendant agrees that a curse should befall him if he is lying about the question at hand.) As a rule, beit din no longer administers oaths or charamim,replacingthem with payment of a minority portion of the claim. In this case, the defendants preferred the partial payment, but given that they stated that the strict law would be used, do they have that prerogative?
Discussion of the Issue: Although the defendants can change their mind, from their perspective, and agree to a level of compromise instead of accepting a cherem, we have to consider if the plaintiff needs to agree. Although it was only the defendant who brought the stipulation of following strict law forward, it is illogical that one arbitration agreement should contain two different standards. Thus, just as the defendants had the right to limit beit din to the strict law, so should the plaintiff.
However, there is another point that makes it possible that a compromise in lieu of the cherem can be implemented against the plaintiff’s will. It is an accepted practice in all batei din to avoid, at almost all costs, administration of an oath or cherem. As such it is possible that this rabbinic practice turns, in effect, into the strict law. As such, it may no longer be categorized as a compromise, which requires the agreement of the two sides.
[Beit din left this general question undecided. In this specific case, they demonstrated that there was a different reason to totally exempt the defendants from a cherem.]
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