Vaetchanan ~ Compromise

(2) It is a religious duty to say to the litigants at the outset, 'Do you wish [to resort to] law or [to submit to] arbitration?' If they consented [to submit to] arbitration, they bring about a settlement between them.⁷Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. And just as [the Judge] is cautioned not to pervert judgment, so too, is he cautioned not to direct the arbitration [in favour of] one party more than the other.⁸Thus Tur. Derived from San. 32b: ‘It has been taught: Justice, justice shalt thou follow (Deut. XVI, 20); the first (mention of justice) has reference to a verdict based on strict law; the second, to arbitration.’ , Rashi a.l., s.v. אבל קראי who writes that the second mention of justice means that the Judge should justify the arbitration according to what he sees with his own eyes. R.A.Eger states that just as in the case of strict law, if the Judge perverts justice through error, he must reconsider the case and retract from his former decision, so too, in bringing about an arbitration. Shebuth Ya‘akob reports the following case: A and B consented to submit their case to arbitration and entered into same by symbolic agreement (קנין), A contests the legality of the decision on the following grounds: a) According to strict law, A was obliged to take a number of oaths in order to justify himself in the eyes of the Court. When the matter was submitted to arbitration, it was ruled that A be exempt from the imposition of an oath on condition that he pay instead a certain amount of money. A, however, claims that B too, was originally obliged to take a number of oaths, — yet, in the latter case the arbitrator did not decide that he be exempt therefrom by paying money instead. In addition, A claims that certain oaths were overlooked entirely. b) The original agreement upon submitting the case to arbitration referred only to the elimination of oaths, but not to any other part of the case. However, according to the decision of the arbitrator, the settlement took into account the case as a whole. Hence, A contends that the entire decision is invalid. Responsum: Argument a) is not valid because undoubtedly the arbitrators have their reasons for acting thus only with respect to the oaths that A was required to take. Argument b), however, is a valid one and consequently, it must be reconsidered. We do not apply the principle that since one of the argument is valid then the whole case should be reconsidered. Should A, however, show that one argument depends upon the other, there is the possibility that the entire case must be reconsidered, but this must first be clearly established before invalidating the decision. Where the Judge is requested to arbitrate a case and render a decision that would be related to strict law (פשרה קרובה לדין), the law is that not more than one third less than the amount the defendant would have to pay according to strict law, is regarded a valid settlement in such a case. E.g., if according to strict law he would have to pay 300 dollars, then 200 dollars would be regarded as a valid settlement — P.Tesh. Every Court of Law that always brings about a settlement is considered praiseworthy.⁷Yad, Sanhedrin XXII, 4. Derived from San. 6b-7a: ‘R. Joshua b. Korḥa states : Arbitration is a religious duty, for it is written, Execute the judgment of truth and peace in your gates (Zech. VIII, 16). Certainly where there is (the execution of) justice, there is no peace, and where there is peace, there is no (execution of) justice! But what is that kind of justice that is accompanied by peace? — You must admit: Arbitration (because the rigid application of the law does not necessarily set the contesting parties at peace). And so too, in the case of David it says, And David executed justice and righteousness (charity) towards all his people (II Sam. VIII, 15)… But what is that kind of justice that is accompanied by righteousness? — You must admit: Arbitration… Rab stated: The adopted ruling (Halachah) agrees with R. Joshua b. Korḥa… and it is a religious duty to ask the litigants whether they desire to resort to law or to submit to arbitration.’ Consequently, since it is a religious duty to arbitrate, the Judge should make this clear to the litigants in order that they consent to submit to arbitration. The meaning of Caro’s text, therefore, is: — If you wish to resort to law I will act as your Judge; if not, then know ye that arbitration is preferable because it is a religious duty — M.E. When does this apply?⁹San. 6b: ‘When do we regard a legal decision as rendered (so that arbitration is no longer permitted) ? — Rab Judah on the authority of Rab states: (When they say) : So-and-so you are guilty; So-and-so you are not guilty.’ — Before the conclusion of the trial, — even though one has heard their pleas and knows which way the judgment will incline, — it is a religious duty to attempt a settlement;¹⁰San. 6b-7a in agreement with the First Tanna contra R. Simeon b. Manasya. Caro’s ruling accords with the interpretation of Rashi, San. 6b, s.v. נגמר הדין contra Tosaf. Cf. infra n. 11. Suggesting a settlement is not regarded as deception on the part of the Judge, since a man is willing to forego a certain part of his claim as long as everyone will be at peace — M.E. but after the Judge concluded the trial and made the pronouncement, 'So-and-so, you are innocent, So-and-so, you are guilty,' he is not permitted to attempt a settlement between them.¹¹It is forbidden to say to one who was pronounced not guilty, ‘Make a settlement with the other party because I am afraid that I might have erred and the other Judges will reverse my decision’ — M.E. BaḤ agrees with Tosaf. contra Rashi (v. supra n. 10) that even before the pronouncement of the verdict, so long as the case has been thoroughly examined by the Judges, arbitration should not be proposed. ShaK opposes BaḤ, but the latter is defended by Bir. Yos., who shows that many other authorities agree with Tosaf. According to Tosaf., even if the Judge did not state to the guilty party, ‘Go and pay him whatever you owe him,’ it is still considered the ‘conclusion of the trial’ (v. B.K. 69a, B.M. 17a s.v. חײב). SeMaG, however, regards the trial as concluded only after this statement is made — ShaK. According to Shilte Geborim, even after the conclusion of the trial, if the Judges inform the litigants concerning the nature of the settlement, and the latter agree to submit the case to arbitration, it is permissible, provided there was no coercion. Moreover, it is considered a meritorious act — ShaK. Many other authorities, however, oppose Shilte Giborim — P.Tesh. However, another person who is not a Judge is permitted to attempt a settlement between them,¹²B.Yos. on the authority of Agudah. , San. 6b where both the First Tanna and R. Simeon b. Manasya use the second person, viz., ‘When two come before you for judgment,’ whence it follows that you refers to a competent Judge, but another individual who is not a Judge, is permitted to attempt a settlement. Cf. also San. ibid.: ‘Aaron loved peace, pursued peace and made peace between man and man, as it is written, The law of truth was in his mouth, unrighteousness was not found in his lips, he walked with Me in peace and uprightness and did turn many away from iniquity’ (Mal. II, 6) and cf. Tosaf., a.l., s.v. אבל who explain that since Aaron was not a Judge, because all matters of a legal nature were brought before Moses, then for him arbitration was permissible. [provided] that this is not [attempted] in a Court sitting that is appointed for the purpose [of holding] legal [sessions].¹³RaShBA, Resp. on the authority of R. Hai Gaon. For whatever is done in the presence of the Judges is regarded as if it were carried out with the consent of the Judges — M.E. If the Court of Law imposed an oath upon one of them, the Court of Law is permitted to bring about a settlement between them [even after the conclusion of the trial],¹⁴Thus Tur. so that [the one who is bound to take an oath] should be exempt from the responsibility thereof.¹⁵San. 6b, Tosaf. s.v. נגמר הדין. The Court of Law cannot compel one to fall in with [the principle of equity, i.e., actting] beyond the requirements of the line of justice, although that would appear to them to be the proper thing [to do].¹⁶B.Yos. on the authority of R. Yeruḥam and Asheri — G. Cf. the following passages: B.K. 99b: ‘Rabbah b. Bar Ḥanah said on the authority of R. Joḥanan : An expert slaughterer who did not slaughter properly (as a result of which the animal became ritually unfit for consumption) is held responsible even if he was as skilled as the slaughterers of Sepphoris… Did not Rabbah b. Bar Ḥanah state that a similar case came before R. Joḥanan in the Synagogue of Maon and he said to the slaughterer, Go and bring proof that you are an expert to slaughter hens and I will exempt you? — There is no difficulty. The latter law (has reference to a slaughterer who worked) gratuitously; the former (where the slaughterer does it) for hire… A certain woman showed a Denar to R. Ḥiyya and he informed her that it was good. Subsequently, she came to him again and said to him, I showed it later (to others) and they informed me that it was bad, and I could not pass it. He then said to Rab, Go and exchange it for a good one … R. Ḥiyya (although he was an expert and needed no further instruction in this matter, and consequently, would be exempt) acted beyond the requirements of the line of justice, as R. Joseph learnt: And shalt show them (v. Ex. XVIII, 20) refers to their livelihood; the way refers to acts of lovingkindness; they must walk refers to visiting the sick; wherein refers to burial and the work refers to law; which they must do refers to (acting) beyond the requirements of the line of justice.’ , also B.M. 30b in the case of R. Ishmael b. R. Jose. Hence, we see that acting beyond the requirements of the law, although it is derived from a Biblical text, and in the eyes of the Judges it would be the proper thing to do, yet, it cannot be enforced by the Court of Law. Cf., however, B.M. 83a: ‘Some carriers (negligently) broke a barrel of wine that belonged to Rabbah b. R. Huna (Thus Alfasi. Cur. edd. : ‘b. Bar Ḥanan’). Thereupon he confiscated their cloaks; so they went and told Rab about it. Give them back their cloaks, said the latter. Is this the law, he asked. Yes, he answered, That thou mayest walk in the way of good men’ (Prov. II, 20). Hence, we may ask why this is not derived from the above-mentioned text? RI of Orleans in B.K. 100a, Tosaf s.v. יפנים explains that acting ‘beyond the requirements of the law’ has reference only to a) a case where others under the same circumstances would be liable to pay but not he, as in the case of R. Ḥiyya and R. Ishmael b. R. Jose mentioned above, whereas in b) a case where there is no distinction between him and others (i.e., everyone would be exempt) as in the case of Rabbah b. Bar Huna, such action is merely a case of That thou mayest walk in the way of good men. Consequently, in a) acting beyond the requirements of the law is considered Biblical, whereas in b) it is based on post-Mosaic tradition. Hence, our present ruling refers to a). Cf. also B.M. 24b and Tosaf. s.v. לפנים. There are thus three degrees of acting beyond the requirements of the law: a) where the responsibility is such that it does not even come within the purview of acting beyond the requirements of the law. Consequently, one who out of equity acts thus, walks in the way of good men. E.g., the carriers who negligently broke a barrel of wine belonging to Rabbah b. R. Huna who suffered damages; b) where everyone would be exempt and should not even come under the category of acting beyond the requirements of the law, but since no damage was caused as in a), one should act beyond the requirements of the law. E.g., the case of the ‘found asses’ in B.M. 24b (v. passage infra n. 17) ; c) where everyone else would be held responsible, in which case acting beyond the requirements of the law is based on a Pentateuchal text, although such action cannot be enforced. E.g., the case of R. Ḥiyya. Our present ruling refers to c). , also BaḤ for other interpretations. However, some differ with [this opinion].¹⁷Mord. to B.M. II, — G. Derived from B.M. 24b: ‘R. Judah once went after Mar Samuel in a street of whole meal dealers and asked him: What is the law if one found a purse here? — (Mar Samuel) answered: It belongs to the finder. What is the law if an Israelite came and produced an identification mark? — (Mar Samuel) answered: He would be required to return it. Both (views contradict each other)! — (Mar Samuel) answered: One should act beyond the requirements of the law. So too, the father of Samuel found asses in a desert and (yet) he returned them after a year of twelve months: he (acted) beyond the requirements of the law.’ In this passage, the expression ‘it belongs to the finder’ (הרי אלו שלו) indicates that legally it belongs to the finder. Consequently, the subsequent statement ‘he would be required to return it’ (חייב להחזיר) refers to doing one’s duty towards G-d. In addition the expression ‘he returned them etc.,’ (אהדרינהו למרייהו) indicates thhat he did this on his own. Moreover, he was only obliged to return their worth (v. Tosaf., B.M. ibid. s.v. לבתר). Derived also from the case of the ‘carriers’ (B.M. 83a. Cf. passage quoted supra n. 16), since it is not stated that they came before Rab for trial but rather ‘they went and told Rab about it,’ i.e., to use his influence by means of words of persuasion. Thus also Asheri to B.M. II who considers this a case of acting beyond the requirements of the law and cites the Biblical text which they must do (v. supra n. 16) and would be contra Tosaf. Hence, according to this opinion all cases of acting beyond the requirements of the law are similar and in all cases mentioned above we cannot compel anyone to act beyond the requirements of the law. The interpretation here follows W.G. and Be’er Eliyahu. , BaḤ for other interpretations.