Hilchos Choshen Mishpat
Volume II : Number 12
Peshara / Compromise In Bais Din
Reuven has been summoned to a Din Torah by a business colleague. Although
he is agreeable to going and finding out whether he is Halachically
liable, he is concerned that the Bais Din may arbitrarily impose a
settlement, which could be to his detriment. He is therefore asking the
Bais Din to clarify what authority they have and what his rights are.
Can a Bais Din arbitrarily impose a compromise upon disputing parties, or
only if both agree to compromise may this be done?
- A. After hearing both sides of a case, a Bais Din is permitted to suggest
to both parties that they solve their dispute through compromise, if they
are willing. They are also permitted to gently try to convince one or
both of the parties of the necessity and benefits of compromise, and how
much, in their opinion, the defendant should pay the plaintiff.
This is true even if the Bais Din has already finished their
deliberations and have decided how much the defendant is Halachically
liable to pay. If the Dayanim feel that for the sake of Shalom (peace) it
is worthwhile to try to convince the parties to settle themselves, they
may do so in a gentle manner, without imposing a settlement on either
side. This is because Shalom must be a primary concern of a Bais Din. Our
Rabbis state, "What judgement is there that combines Emes (truth) and
- B. If any one of the parties is not interested in compromise, and agreed to
go to Bais Din only on condition that the Bais Din determine what his
Halachic rights are to the best of their ability and not impose any
settlement, no Peshara may be imposed involuntarily.
Similarly, if any one of the parties only agreed to have the case
determined in a manner that would involve settlement but would be close
to the Din (Peshara Kerova L'Din), but not to have any settlement imposed
merely based on the sense of fairness of the Dayanim, the Dayanim would
only be permitted to impose a settlement of up to 1/3 of the total
verdict. In other words, if the Dayanim find that the plaintiff deserves
to be paid $900 by the defendant, for the sake of Shalom or because of
other mitigating circumstances they would be permitted to deduct $300
from the amount owed for the sake of compromise. However, the plaintiff
would have to receive a minimum of $600.
- C. If the two parties consent to resolve their dispute in front of a Bais
Din without any preconditions, or if they sign an arbitration agreement,
as is commonly done today in Batei Din, the Dayanim are permitted to
judge as they see fit. They do not need the consent of the parties, but
may obligate them to abide by their decision, whether Peshara or Din.
- D. Just as a Dayan must remain totally objective when deciding who is
Halachically correct, so too he must be totally objective when
determining what the Peshara should be. He may not favor one party over
the other based on friendship, social standing, etc.
- E. Similarly, just as the Halacha is that a verdict is null and void if a
Dayan has made a blatant mistake in his judgement. i.e. it is contrary to
what is stated as the concluding Halacha in the Gemara, Shulchan Oruch,
or accepted Halachic responsa (To'eh B'Dvar Mishna), so too if a Dayan
made a mistake in the process of making a settlement and incorrectly
exempted a party from paying something that he is clearly obligated to
according to Halacha, the settlement is void and the person must pay his
- F. Based on the above, if, for example, the plaintiff is claiming that he
lent the defendant $1000, or that he supplied him with merchandise or
services worth $1000, and the defendant has not yet paid him, and it is
clear to the Bais Din that this is true (either through witnesses or
admission of the defendant), there is no basis on which to make a Peshara
in this case, and the Bais Din must obligate the defendant to pay the
However, if the Bais Din realizes that it isn't practical for the
defendant to pay the full amount at this time, they may allow that the
full amount be paid in installments, as they see fit.
The following situations are some of the cases where there would be basis
for a Bais Din to impose a Peshara to resolve a dispute.
1. If the plaintiff claims that the defendant damaged him, and the Bais
Din determines that it was unintentional.
2. If the facts of the case are under dispute by both parties, and the Bais
Din has no way to determine who is correct, but there is circumstantial
evidence indicating that one side is correct.
3. If one of the parties is Halachically obligated to take an oath to
back his claim or defense. Today we do not force people to swear in Bais
Din, but the Dayanim may decide to "redeem" the oath by paying for part
of the claim.
4. If the situation requires an estimation of the value of a property or
a business by experts, and there is disagreement among them as to what
the actual value is, the Bais Din would have to make some sort of
The above Halachos are based on the statements of the Shulchan Oruch and
the Rema in Choshen Mishpat 12:2, the Bach (4), the S'Mah (6-10), the
Shach (5), the Gilyon Rabbi Akiva Eiger, and the Pischei Teshuva there
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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
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Open Your Eyes
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