The Ba’alei Din–we–are also to blame

Sometimes I randomly call people when my phone is quickly inserted in my pocket (yes, I’m a tad overweight at the moment). My kids have a humorous name for this phenomenon, but I won’t mention it here 🙂

Yesterday, before I got in the car to drive home, instead of me unwittingly ringing someone, I suddenly heard a voice, the voice of Mori V’Rabi Rav Schachter. Realising that iTunes had been activated in my pocket, a random Shiur had commenced. I paused the playback, got into the car, and listened on the way home to daven Mincha.

The topic of the Shiur was the Beis Din process for דיני ממונות financial disputes. Ironic? Hashgacha? Whatever. Rav Schachter went through the Machlokes of the Tannoim in the first chapter of Sanhedrin regarding the concept of Peshara פשרה. If you look this word up in a dictionary it is

nf. compromise, arbitrement, conciliation

Rav Schachter quoted  the Rav who said that it was wrong to define פשרה as “compromise”.  For example, one person claims “you owe me one million dollars” and the other claims “I owe you nothing”, and so the Dayan says let’s split it 50/50 as a פשרה compromise. That’s definitely not the definition of פשרה. Halacha did not recognise such a class of judgement. Rather, quoting, the Mesora passed from R’ Chaim Brisker through to the Rav, R’ Schachter explained that פשרה means ישרות, Yashrus, which the dictionary defines as

nf. straightness; directness; honesty

Furthermore, it is a positive command, a מצוה that a Rav/Dayan pursue פשרה over Din (Halacha). פשרה is a concept wherein you “know in your heart of hearts that this is the right thing to do”. The concept is perplexing, especially in today’s world where the message that “Strict Clean Halacha” so to speak is the only way to go ahead and the highest level to strive for. How can a different process, which may result in פשרה based on ישרות ever supersede unadulterated Halacha, so to speak?

R’ Schachter gave two examples, one from R’ Chaim Brisker (Soloveitchik) and one from the Rav. In R’ Chaim Brisker’s case, a housewife had asked to borrow some jewellery from her maid for a Simcha. The maid had worked faithfully and it was a beautiful piece and the only one she owned. The maid was only too happy to lend it to housewife (boss). Alas, at the wedding, the jewellery disappeared/was lost. Technically, the housewife is known as a שאול a borrower, and is not required to recompense for an accident such as this אונס. The housewife and maid went to R’ Chaim, and he suggested that he settle the dispute based on פשרה. Both the Ba’alei Din, the boss and the maid agreed (technically both sides have to agree to פשרה, it can’t be forced on them). R’ Chaim paskened that according to Din, the housewife didn’t have to pay back the value of the jewellery because the maid was in her employment (בעליו עמו) however based on פשרה the housewife needed to pay the full amount of the jewellery to the maid. This is Yashrus. This is the right thing, so to speak, and that’s what happened.

Sometimes, R’ Schachter explained one knows that they could technically win a Din Torah but equally, in one’s heart of hearts one also knows that it’s a Chutzpa (ie lack of Yashrus) to take the case to a Din Torah.

R’ Schachter described a fascinating mode of Psak that they employed in RIETS (YU Kollel). There was one incident where two people had a dispute over property ownership. Their Rabbi did not want to get involved because he knew them both. Instead, he took them to the Kollel. Randomly, they pulled out three unknown Kollel Rabbis (all of whom had Yoreh/Yoreh and Yadin/Yadin, ie they were qualified) and went into a side room with the two litigants. They asked that the litigants agree to פשרה as well as normative Psak Din, and this was accepted. The three judges heard the case (in quick time as it turned out) and unanimously decided in favour of one person both from a Halachic and a פשרה point of view. The litigants shook hands, accepted the judgement, and went their own way.

How many of us, have the יראת שמים to be involved in such a process as בעלי דין? It’s true that we wiggle the finger at Rabbis, and often deservedly so, but at the same time, where is our own Yashrus.

I’m not involved in business per se, but I do run a band and a few times in my career, I have definitely been diddled by some people. Each time, I decided that I would not pursue them. My reason? Those people didn’t care about Halacha or Yashrus, so what was the point. Thank God, in 99.9% of cases I’ve had, people have been true to their word.

Author: pitputim

I'm a computer science professor in Melbourne, Australia. I skylark as the band leader/singer for the Schnapps band. My high schooling was in Chabad and I continued at Yeshivat Kerem B'Yavneh in Israel.

7 thoughts on “The Ba’alei Din–we–are also to blame”

  1. How does RHS explain how this fits into the world פשרה, which is obviously the same word as פושרים, lukewarm?

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    1. He has nothing to explain. פשר has a classical meaning in Hebrew which means interpretation/solution.

      פושרים is actually Aramaic which comes from פושר

      RHS was relaying what the Rav taught them and that which R’ Chaim taught the Rav

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      1. פשר meaning interpretation is Aramaic (though it appears once in Koheles, so do other Aramaic words). And who says that פושר is a different word?
        For the little it’s worth, Jastrow seems to treat all the forms as variants of the same word. The base meaning would seem to be to moderate, to make something not so strongly what it was, thus to melt a solid, to warm a cold thing or cool a hot thing, to make mysteries less obscure, or to moderate an extreme demand.

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        1. Okay and you are happy that yashrus can lead to a moderate approach? Certainly R Chaim thought it better to moderate unadulterated Din through Yashrus. The point of R Schachter’s comment was that the Brisker Mesora wasn’t about 50/50 style outcomes unless THAT was Yashrus

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  2. “and so the Dayan says let’s split it 50/50 as a פשרה ccompromise. That’s definitely not the definition of פשרה

    בבא בתרא דף קלג עמוד ב:

    ההוא דאמר ליה לחבריה: נכסי לך ואחריך לפלוני, וראשון ראוי ליורשו הוה, שכיב ראשון, אתא שני קא תבע; סבר רב עיליש קמיה דרבא למימר: שני נמי שקיל, א”ל: דייני דחצצתא הכי דייני,

    There was a certain seriously ill man who said to his fellow “my property shall go to so and so”, the first recipient was fit to inherit the benefactor, when the first recipient died, the second recipient came toward and claimed the award. the heirs of the first recipient, however claimed the property belonged to them. Rav llish, while in the presence of Rava, considered ruling that the second recipient also takes a share of the award.

    Rava objected to rav illish proposal and said to him :

    “that is how compromising judges rule”. (artscroll’s translation)

    וברשב”ם: דייני דחצצתא – דייני פשרה שאין בקיאין בדין וחוצצין מחצה לזה ומחצה לזה כדין ממון המוטל בספק. ורבינו חננאל פירש חצצתא בית הקברות.

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    1. That’s Yashrus … I don’t see the contradiction. What Rav Schachter was trying to say was Rav could rule according to Peshara that all the money goes one way. They don’t need to equate Peshara with 50/50

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