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Posted on January 27, 2003 (5763) By Rabbi Yissocher Frand | Series: | Level:

These divrei Torah were adapted from the hashkafa portion of Rabbi Yissocher Frand’s Commuter Chavrusah Tapes on the weekly portion: Tape # 404, Making A Bracha on a Makom Neis [place of a miracle]. Good Shabbos!

The Winner In A Court Case, Also Loses

Our Sages teach that the reason why Yisro merited to have a parsha in the Torah named for him was because of the counsel that he gave to his son-in- law, Moshe. People lined up for Moshe to adjudicate their civil disputes. Moshe was busy hearing people’s disputes the entire day. Yisro saw that this was very draining on Moshe’s time and energy. He gave his famous advice to set up a hierarchical system of courts. He instructed Moshe “You shall make known to them the path in which they should go and the deeds that they should do” [Shemos 18:20].

The Talmud [Bava Metzia 30b] derives two types of instruction from this pasuk [verse]. “The path in which they should go” refers to the letter of the law and “the deeds that they should do” refers to action beyond the letter of the law (lifnim m’shuras hadin).

The concept of lifnim m’shuras hadin is that even in a situation where a person could take another person to court to enforce his monetary legal rights and win — he should still be prepared to compromise more than the law would require. He should not always enforce his rights.

The Gemara there says in the name of Rabbi Yochanan that Jerusalem was destroyed because people insisted on enforcing their rights based on Torah law, rather than accepting the concept of going “beyond the letter of the law”.

This is a rather frightening Gemara. The very term “beyond the letter of the law” seems to imply that I am fully within my rights to insist on the letter of the law — to take my adversary to a ‘Din Torah’ and to demand justice. How could it be, then, that Jerusalem was destroyed because people insisted on their legal rights?

The Chofetz Chaim says that Yisro’s advice to Moshe went beyond just setting up a hierarchical court system. Part of his advice was to teach the Jewish people that there exists a concept of ‘lifnim m’shuras hadin’. They were to be instructed that it is not always necessary or even appropriate to insist upon one’s rights. There is a place for and a value in compromise and non- judicial solutions to disputes. That, in and of itself, was part of the solution of lightening the judicial burden. People would not always be running to court with every argument. They would start settling by compromise, outside of court.

In practice, when two people come before a Beis Din [Jewish court], the first thing that the court advises them is to settle via compromise (peshara) rather than via a court case (din).

One of the commentaries on Shulchan Aruch, the Sem”ah, questions why the judges are allowed to implement such a procedure. How can the judge, in good conscience, advise a party to settle via compromise when he feels that one of the sides is 100 percent correct, and entitled to full compensation or restitution?

Normally one is forbidden to give someone bad advice – be it spiritual or financial. This is included in the prohibition of not placing a stumbling block in front of a blind person. So if someone has an ironclad contract and is fully entitled to 100 percent of his claim, why is it not considered ‘bad advice’ on the part of the judges to suggest that he settle via compromise?

The Sem”ah answers that it is never bad advice to suggest compromise. Even though from a financial perspective, one party may be short changed, the long term advantage of emerging from the dispute as friends rather than enemies outweighs any financial loss. One might win the case and receive his money, but buy an enemy for the rest of his life. Therefore, compromise is GOOD advice.

Good, you’ll nail him. You’ll be able to take him to the cleaners. But then try sitting at the same table with him at a wedding. Try being in the same room with him. It will never be the same again. When two people go to court at each other’s throats, the winner might win — but he also loses. That is the way people are. They do not forget.

This is what the Sem”ah is teaching. “Yes, you might win your case — but you will acquire an enemy for life. I’m giving you good advice: Compromise.” This was also the advice that Yisro gave to Moshe. Lighten the load through compromise. This is good advice for every judge.

Rav Pam commented that now we can understand the Gemara that says Jerusalem was destroyed because they insisted on adjudicating by Torah law, rather than going “beyond the letter of the law”. We had asked how that is possible. “It’s not fair! Don’t I have my rights to a Din Torah?”

The answer is that this Gemara complements another Gemara [Yoma 9b] which says that Jerusalem was destroyed because of unreasoned hatred (sinas chinam). How does one acquire sinas chinam? Sinas chinam results from a society where people act in a “dog eat dog” manner. They are at each other’s throats and are constantly taking each other to court. It is possible for 10 people seated together at a wedding to refuse to talk to one another because they all lost court cases with each other.

When the Gemara speaks about a society that insists on Dinei Torah rather than compromise and lifnim m’shuras hadin, it is talking about a climate that breeds unreasoned hatred. It was not the lack of lifnim m’shuras hadin per say, but it was the result of such a society — namely one filled with baseless hatred — that caused the destruction of Jerusalem.

The Fundamental Aspect of Not Swearing In Vain

The Aseres HaDibros [“Ten Commandments”] are the foundation of the Torah. The early commentaries show how the Aseres HaDibros include all 613 mitzvos. They are in effect like the “Avos Melachos” – the major categories from which all the other commandments stem.

The Aseres HaDibros include “I am the L-rd, your G-d”; the prohibition against idolatry, Shabbos, Honoring Parents, Murder, Adultery, etc. It is immediately apparent why virtually all of these commandments ‘rate’ to be included in this listing of major overriding commandments. But the commandment not to use the Name of the L-rd in vain — of swearing without need — does not seem to necessarily qualify as a fundamental principle of the religion.

As an initial reaction, we might wish to answer that not lying is fundamental because a society based on falsehood cannot survive. However, the prohibition in the Aseres HaDibros is not against a false oath (Shvuas sheker). The prohibition is against a vain oath (Shvuas Shav). A vain oath is swearing the obvious — that a tree is a tree.

What is so fundamental about not swearing unnecessarily? The sefer Abeeta Orchosecha explains that the fundamental element is the misuse of the power of speech. That which separates man from animal is our ability to speak. We often take speech for granted, but speech distinguishes man from all other species.

We need to recognize the effects of speech, the power of speech, and the preciousness of speech. Speech can accomplish so much. Speech can destroy so much. When a person employs the name of G-d to swear that a tree is a tree or that a rock is a rock, he is abusing the gift of speech. He is not taking the import and the impact of speech seriously enough. That is why making a vain oath rates as one of the Aseres HaDibros. We as human beings must be constantly aware of the great gift that G-d has given to us: speech. We must never cheapen that power by using it loosely.

Transcribed by David Twersky; Seattle, Washington.
Technical Assistance by Dovid Hoffman; Yerushalayim.

This write-up was adapted from the hashkafa portion of Rabbi Yissocher Frand’s Commuter Chavrusah Torah Tape series on the weekly Torah portion. The complete list of halachic topics covered in this series for Parshas Yisro are provided below:

  • Tape # 042 – Kiddush: To Sit or Not to Sit
  • Tape # 085 – Christianity in Halacha
  • Tape # 133 – Honoring In Laws
  • Tape # 180 – The Mitzvah of Kiddush for Men and Women
  • Tape # 226 – The Fearless Judge: A Difficult Task
  • Tape # 270 – Paternal Wishes vs. Staying in Israel
  • Tape # 316 – The Reading of the “Aseres Hadibros”
  • Tape # 360 – Dolls and Statues: Problem of Avodah Zarah?
  • Tape # 404 – Making a Brocho on a Makom Neis
  • Tape # 448 – Lo Sachmod
  • Tape # 492 – Eating Before Kiddush
  • Tape # 536 – Newspapers on Shabbos
  • Tape # 580 – Women and Havdalah
  • Tape # 624 – Resting Your Animal on Shabbos
  • Tape # 668 – Kiddush B’Makom Seudah

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