The Role of Peshara within the Halakhic Judicial System
In general terms, Beit Din's role in deciding civil suits between two parties entails gathering evidence and issuing a definitive verdict. The gemara (Sanhedrin 6a-7a) however, addresses an alternative - the legal option known as peshara, whereby Beit Din brokers a compromise or settlement between the litigants. According to some opinions, this is the more preferable option, though, one opinion in the gemara views compromise as an INFERIOR option even claiming that it is forbidden for a judge to abandon his pursuit of absolute truth. Moshe, according to this opinion presents the ultimate model of a judge who did not waver in his pursuit of justice even at the cost of peace and harmony. It was only Aharon - not formally a judge - who was permitted to strike compromises (ohev shalom ve-rodef shalom). Moshe the judge did not have such an option. However, most positions stated in the gemara view peshara more favorably citing it as the highest form of 'justice' - one which settles disputes while engendering peace and goodwill between the two parties. This article will explore the nature of peshara.
A primary question would focus upon the relationship between peshara and classic ‘Din’ (justice). Peshara presents an alternative to the conventional track of justice. How similar are these two tracks? Does peshara represent a completely distinct procedure geared to promote harmony by supplanting justice with compromise; or does Halakha view peshara as an alternate form of justice, processed by a legal court system?
This question might be reflected in the different sources which the gemara cites for the category of peshara. The gemara in Sanhedrin (32b) cites the verse "tzedek tzedek tirdof" (Devarim 16:20 - literally - you should pursue justice) and comments that the repetition of the word 'tzedek' (justice) suggests two forms of justice: classic 'din' - absolute verdicts and peshara - compromise. The simple reading of the gemara would yield a map in which both classic 'din' and peshara are recognized as legitimate forms of pesak. They are derived from the same pasuk and each stem from the word 'tzedek'.
The Yad Rama, however, reinterprets the gemara in a manner which yields the exact opposite conclusion. The gemara, he claims, is not addressing the repetition of the word 'tzedek' in this pasuk in Devarim. Instead it is commenting upon the apparent superfluity of this pasuk in light of the same theme previously stated in Vayikra (19:15) "be-tzedek tishpot amitekha" - you should judge your neighbor justly. Why is it necessary for the Torah reiterate the same notion in a separate pasuk in Devarim? The gemara responds that each pasuk refers to a different manner of resolving disputes. The pasuk in Vayikra, by employing the verb "tishpot" - literally to judge ('be-tzedek tishpot amitekha'), refers to genuine and authentic 'din'. The pasuk in Devarim, however, specifically avoids a verb which would indicate authentic 'din' and instead chooses the generic verb 'tirdof' - justice should be PURSUED. As such this verse refers to peshara which is NOT regarded as a form of din.
In contrast to Rashi who claims that the gemara derives peshara from the same verse as din, the Yad Rama maintains that they are derived from different pesukim; the accent being on the difference between a pasuk which uses the verb 'tishpot' - to judge, and one which uses a verb 'tirdof' - to pursue. Clearly, Rashi and the Yad Rama, in their differing interpretations of the gemara and the Biblical sources, are debating the relationship between din and peshara.
An alternative source for the use of peshara might be a fascinating pasuk in Ve-etchanan - (Devarim 6:18). The Torah states 've-asita ha-yashar ve-hatov' which appears to be a general directive to perform righteous and conscientious deeds. Rashi and the Ramban, however, each cite a Midrash which sees within this pasuk the obligation to 'go beyond the mere letter of the law'. More specifically, this refers to the categories known as 'lifnim mi-shurat ha-din' and 'peshara'. Even though from a legal perspective a person might be in the right, this mitzva commands him to opt for compromise and sometimes even to render payment to another in an attempt to behave 'lifnim mi-shurat ha-din' - beyond the letter of the law. An example of lifnim mi-shurat ha-din is cited by the gemara in Bava Metzia (30b) which rules that although by law a talmid chakham does NOT have to retrieve and guard a lost item because it may be beneath his dignity, R. Yishmael be-R. Yossi did in fact perform this service because he wanted to behave beyond the strict letter of the law. Evidently by comparing peshara to lifnim mi-shurat ha-din, and by deriving each of these concepts from a pasuk in Ve-etchanan having little to do with actual justice, Chazal might be signaling their view of peshara as an extralegal compromise rather than an alternate form of the judicial process.
This question - the relationship between peshara and classic 'din' - impacts upon several issues relating to the method by which peshara is implemented. The gemara in Sanhedrin (6a) questions how many 'judges' are necessary to adjudicate peshara. "Do we compare peshara to 'din'" (thereby requiring a tribunal of three people akin to 'din') or do we not strike a comparison to 'din'" and only two people are required to perform this compromise. Evidently the gemara itself debates this relationship, realizing the potential impact upon the composition of the 'formal council' presiding over peshara.
The Ri'az raises a halakha which at first glance seems a bit startling. When the litigants enter court they are given a choice to engage in classic 'din' or to opt for peshara. The gemara determines that the judges offer them a choice (in fact, according to the Rambam they encourage peshara as the optimal choice but ultimately allow the litigants to select their preferred 'process'). Once peshara is selected, the Ri'az claims, the court can impose their decision upon the litigants. Even if one or both parties disagree with the arbitrated decision they must comply with the verdict. This statement would seem to indicate that peshara is patterned very closely upon classic din and can be ordained by the judges akin to a classic verdict.
Tosafot (Sanhedrin 6a) cite an interesting distinction between classic 'din' and peshara. In a standard litigation the majority opinion within the court dictates the verdict. This the gemara derives from the verse in Shemot (23:2) 'acharei rabim le-hatot' - one should proceed based upon the majority. According to Tosafot, peshara can only be determined based upon a consensus of ALL the judges presiding. Might Tosafot have recognized the discrepancy between classic 'din' and peshara and refused to apply the protocol of following the majority in the case of peshara?
The Tosafot haRosh raises another issue pertaining to the method of implementing peshara. Must the judges actually investigate the specific case at hand, scrutinize the evidence, and formulate some form of adjusted compromise based upon the particular facts of this dispute; or does peshara entail a simple equitable division which awards payment to both parties - a general adjustment which bears no resemblance to the specific facts? This question as well could potentially indicate peshara's proximity to the world of 'din'. If peshara itself is a form of 'din' we might expect it to be patterned after 'din' and it would require some degree of deliberation and consideration of the testimony. If, however, peshara is an extralegal form of arbitration we would certainly not demand that it be patterned after the model of classic 'din' and in the interests of pursuing harmony we might prefer that it take the shape of a general mediated compromise.
Interestingly enough, the Rosh maintains that both forms of peshara exist. In effect, the Rosh maintains that Halakha affords two models of peshara - one akin to 'din' which entails some attempt to base the compromise upon the facts, and another distinct form which strikes a general compromise acceptable to all even if it in no way mirrors the facts.
At which point may the parties opt for peshara? What if Beit Din began to process the suit as a classic litigation and subsequently the parties declare their desire to process their case as peshara? The gemara asserts that once 'gemar din' - a verdict - has been rendered, peshara cannot be introduced (based upon Rashi's interpretation of this gemara. See Tosafot who offers a differing interpretation). Why is peshara precluded at this stage? Possibly because peshara ITSELF represents a halakhic verdict; once the verdict is rendered a second verdict cannot be pursued (see the Bach Choshen Mishpat 12 - who clarifies this concern of not issuing successive verdicts). If however we viewed peshara as merely an extralegal and mutual agreement to compromise and to waive the perspective claims, one might wonder whether the very fact that a formal verdict were issued would preclude an attempt to pursue a compromise of this nature.
A final issue for consideration is the gemara's deliberation (6a) as to whether peshara must be executed by performing a kinyan sudar (handkerchief exchange). Clearly if peshara is a form of court rendered justice it would be difficult to justify the need for a kinyan. Standard pesak issued by Beit Din is mandatory even without the performance of a kinyan. If however peshara is a court brokered compromise hammered out between the two parties we would comprehend the role of a kinyan. This mutual compromise entails reciprocal waiving of claims (each feels that he is 100% correct and deserves the full amount; by agreeing to compromise they are effectively waiving '50%' of their claim). Such a waiver - known in halakha as 'mechila' - constitutes a halakhic transaction which, like other transactions of property or value, requires a kinyan. Ultimately, the gemara's questioning whether peshara requires a kinyan might in fact be the gemara's questioning whether peshara is a pseudo form of justice or a court mediated compromise between individual citizens.
The basis of peshara and its relationship to classic din might influence the method by which peshara is implemented. Such questions might include: the amount of judges who process peshara, whether peshara can be forcibly imposed, whether the convention of following the majority opinion applies to peshara, the degree of deliberation required to arrive at halakhic peshara, the point at which peshara ceases to be an option, and finally whether peshara must be cemented through a kinyan.
1) Any new halakha must be scrutinized based upon conventional models. Is it a new model or a slight variation of a familiar one.....
2) Often this can be glimpsed from the pesukim which establish the halakha and the degree to which the pasuk equates the new halakha with the conventional one. Of course pesukim should always be inspected to help determine the essence of a halakha.