COMPROMISE (Heb. פְּשָׁרָה, pesharah; apparently derived from the term pesher, "solution," Eccles. 8:1), deciding a civil law dispute (dinei mamonot) by the court or an arbitral body, through the exercise of their discretion and not according to the laws governing the dispute. In Jewish law, compromise is allied to *arbitration both with regard to the way it evolved and in some of its rules and trends (the two are treated contiguously in the Tur and Shulḥan Arukh ḤM 12 and 13).
Pesharah and Biẓẓu'a
In talmudic sources the term biẓẓu'a is synonymous with and equivalent to the term pesharah. (In Scripture biẓẓu'a was used to mean divide or cut (Amos 9:1), and to execute or carry out (Zech. 4:9)). Gulak makes the interesting conjecture – based partly on the fact that several talmudic sources indicate that pesharah and biẓẓu'a were two distinct matters – that there was a difference of principle between the two. Pesharah was carried out by the court itself and in the opinion of all the scholars, was something permitted, and even desirable, for restoring peace between the litigants. On the other hand the court before which the matter was brought in the case of biẓẓu'a would refer investigation to other persons – knowledgeable and expert in the field of that particular matter – for its disposal by way of a compromise between the parties. Referral of a matter by the court in this way was customary in ancient law and when the Romans abrogated Jewish judicial autonomy after the Bar Kokhba War (132–135 C.E.), some scholars refrained from adjudicating according to strict law, preferring a compromise between the parties to be effected by others who were knowledgeable in the matter (TJ, Sanh. 1:1, 18b; Mekh. Yitro, 2; see also *Mishpat Ivri). Consequently there were scholars who came to regard biẓẓu'a as forbidden, since they looked with disfavor on the fact that the court evaded making its own decision in the matter. (Gulak stresses that a prohibition against compromising is always expressed in terms of biẓẓu'a and not pesharah, since the latter, effected by the dayyan himself, is a mitzvah.) In the course of time the difference between pesharah and biẓẓu'a came to be forgotten, as in both cases the object was to compromise between the parties and the rules laid down for the one came equally to govern the other. In this article the principles of compromise are treated in a like manner; i.e., the terms are regarded as applying to the same concept, as is the case in halakhic literature.
Desirability of Compromise
Three different opinions on the subject of compromise are found in the Talmud, all originating from the middle of the second century when the weakening of Jewish judicial autonomy encouraged a movement toward finding a replacement by way of arbitration and compromise. Joshua b. Korḥah based his opinion that "biẓẓu'a is a mitzvah" on the scriptural injunction: "Execute the judgment of truth and peace in your gates" (Zech. 8:16), commenting that justice which involved both peace and charity was to be found in biẓẓu'a (Sif. Deut. 17; Tosef., Sanh. 1:2–3; Sanh. 6b; TJ, Sanh. 1:1, 18b). A contrary opinion was expressed by R. Eliezer, the son of Yose the Galilean, who stated that "biẓẓu'a is forbidden and the boẓe'a ["arbitrator"] an offender… but let the law cut through the mountain, as it is written 'For the judgment is God's'" (Deut. 1:17; Tosef., Sanh. 1:2; Sanh. 6b). The third opinion, that of Simeon b. Menasya, was that compromise was neither a mitzvah nor prohibited, but simply permissible (Sanh. 6b). The halakhah was decided to the effect that it is a mitzvah to ascertain from the litigants beforehand whether they want their dispute resolved according to law or by compromise and that their decision must be abided by; moreover, "it is praiseworthy if a court always effects a compromise" (Maim. Yad, Sanhedrin 22:4; Tur and Sh. Ar., ḤM 12:2). It remains a mitzvah for the court to effect a compromise even after it has heard the pleas of the parties and knows in whose favor the suit is weighted, but once its decision has been given the court may no longer effect a compromise and "let the law cut through the mountain"
In the geonic period it was determined that even after judgment had been given a compromise could still be effected, at the hands of someone other than a judge and elsewhere than at the place where the court was situated (L. Ginzberg, Ginzei Schechter, 2 (1929), 126; Sh. Ar., ḤM 12:2). Similarly, it is permissible for the court to compromise between the parties, even after giving judgment if either of them is liable in law to take an oath, in order that the need for this be obviated by virtue of the compromise (Sh. Ar., ḤM 12:2). Since the equitable oath (shevu'at hesset) is imposed on one of the parties in practically all legal suits, great efforts were made to induce the parties to a compromise and thus avoid the gravity of the oath (see also Sh. Ar., ḤM 12:17). Compromise was permitted to the court even if this involved some waiver of the rights of orphans "so as to shelter them from disputes" (Sh. Ar., ḤM 12:3).
The scholars extended the discussion on the merits and demerits of compromise in monetary disputes between man and his fellow to the precepts governing man's relationship with God and man's conduct in general. Thus the statement of Eliezer b. Jacob – that a man who steals wheat and then, when making bread with it, says the blessing on separating the *ḥallah, is actually blaspheming God (quoted in connection with the meaning of the word boẓe'a; Sanh. 6b) – was explained by Simeon Kayyara (ninth century) as an example of a defective compromise: "since he compromised with the precepts of God, acting as if robbery were permitted but that he was in duty bound to separate the ḥallah; this is a mitzvah performed as the result of a transgression, something God hates" (Halakhot Gedolot, ed. Warsaw, 19a). Judah's compromise in rescuing Joseph from the pit and selling him to the Ishmaelites (Gen. 37:26–28) has been interpreted as unworthy conduct: "since he should have said 'Let us return him to our father'" (Rashi to Sanh. 6b), and as worthy conduct: since this compromise was imperative in the circumstances (Ḥiddushei Halakhot ve-Aggadot, Sanh. 6b).
Nature of Compromise
Compromise is comparable to a judicial decision and must therefore be made after weighty deliberation. Thus, "com-promise too requires an application of the mind to the decision" (hekhre'a ha-da'at; TJ, Sanh. 1:1); "the dayyan must take as much care with compromise as with a legal decision" (Lehem Rav 87); "just as the law should not be perverted, so it is warned that a compromise should not lean more to the one than the other" (Sh. Ar., ḤM 12:2). Some scholars interpreted the injunction, "Justice, justice shalt thou follow" (Deut. 16:20) as meaning, "Justice, once for the law and once for compromise" (Sanh. 32b and Rashi ad loc.). Other scholars interpreted the verse, "In righteousness shalt thou judge thy neighbor" (Lev. 19:15) as referring to a judgment based on the law, and Deuteronomy 16:20 as relating entirely to compromise, since in compromise there is a two-fold need for justice as the arbitrator cannot have recourse to the governing law and therefore has to exercise great care and discretion "to see who of them is telling the truth and who deserves to be treated with greater severity" (Yad Ramah and Beit ha-Beḥirah, Sanh. 32b).
The Making of a Compromise and Its Validity
Compromise is generally effected by a court of three, but the parties may consent to two judges or even a single one. The court is not authorized to compromise between the parties unless they have previously consented to the court's taking this course rather than judging in accordance with the applicable law. In special cases, when the court is satisfied that there is no means of evaluating a matter on the strength of the evidence, it may give "a judgment in the nature of a compromise … and decide as it may deem fit according to its own estimate." This is so since the court is forbidden to let a dispute pass out of its hands without having given a decision on it, as "this will increase conflict and the imposition of peace in the world is the duty of the court" (Rosh, Resp. 107:6; Sh. Ar., ḤM 12:5). Unlike a judgment of the court or of arbitrators – which is given by majority decision – compromise must be unanimously arrived at by all the judges (Sh. Ar., ḤM 12:18). The parties may retract from the compromise – even if they had previously authorized the court to adopt this course – as long as a kinyan (see Modes of *Acquisition) has not been performed by them and provided that they did not undertake in writing to abide by the compromise. However, once execution of the compromise decision has been begun (Sanh. 6a; Sh. Ar. ḤM 12:7), the parties may no longer withdraw.
The Right and the Good
In Deuteronomy 6:17–18, we read: "You shall diligently keep the commandments of the Lord and his testimonies which he has commanded you. And you shall do that which is right and good in the sight of the Lord, that it may be well with you, and so you may go and possess the good land that the Lord swore to your fathers." Commenting on this verse in his Torah Commentary, Naḥmanides writes: "This is a matter of great consequence. Given that it is impossible for the Torah to explicitly enumerate all the ways in which people relate to their neighbors and fellow men and to cover all the numerous types of business and transactions and all the things necessary for the proper ordering of society and government, it first mentioned a great many such things … and then stated generally that in all matters one should do that which is right and good. This is the basis for compromise, for going beyond the letter of the law, regarding that which was set forth in connection with giving a preemptive right to owners of adjoining land."
Compromise and Justice
In the later halakhic literature (aḥaronim), and more recently in rulings by Israeli rabbinical courts, compromise is used extensively to supplement substantive law, where the court is unable to provide a just solution to the matter confronting it. R. Abraham Ḥayyim Schorr (Poland, 17th century), in discussing the term "to place a compromise" (Torat Ḥayyim on
The rabbinical courts have recently issued a number of rulings based on compromise. Even in cases where there was no basis under substantive law to obligate the litigant to pay money, although there was an obligation according to "the law of Heaven." An example of this is a case in which the damage was consequential. In *Gerama and Garme the rabbinical court does not make a financial award under the law of damages, but rather in accordance with the law of compromise. The institution of compromise has been put to similar use in cases involving an act committed in breach of a negative precept, but which did not give rise to a financial obligation, such as deception in the payment of a day-worker. Additional examples are cases in which there are no grounds for imposing a financial obligation under strict law, either because in monetary matters we do not follow the majority opinion, or because the litigant invokes the kim lei claim (i.e., the litigant's reliance on a certain rabbinical opinion in a matter disputed among halakhic authorities, as a means of preventing a monetary ruling against him). In such cases, where the law itself offers no remedy, the rabbinical court may have recourse to compromise as a means of doing justice (see, e.g., PDR, Kiryat Arba-Hebron, vol A, p. 205, and index there; V. Goldberg, "Shivḥei Pesharah," Mishpetei Ereẓ, 2002)
Method of Effecting a Compromise
The Rabbinical Court of Appeal, relying on the view of Leḥem Rav, overturned a ruling of the Regional Rabbinical Court, which had given a compromise ruling without having properly heard the claims of one of the litigants. The Court of Appeal stated that: "From the determination and ruling of Leḥem Rav we learn that failure to listen to a litigant's claims infringes the principle of doing justice, and that the rabbinical judge's duty to hear the parties' claims is a precondition for his ability to rule in accordance with the law, as may be inferred from the aforementioned words of the Tur. The rabbinical judge added that even a ruling by way of compromise is only valid if prior thereto the rabbinical judge heard the litigants' claims" (A. Sherman in File 734/59, Judgments, vol. 188; given in 1999).
In another ruling, the Jerusalem Rabbinical Court of Appeals nullified a compromise ruling of the Regional Court when it became clear to them that the compromise ruling had been issued as a substitute for adjudication, without either of the litigants having given their advance consent. As such, it should be regarded as no more than a compromise proposal (Yosef Kapach, 328/43, given 1984, published in Mishpetei Ereẓ collection, 2002.)
In Israeli Supreme Court Case Law
The conception and status of compromise in Jewish Law were the basis of a number of Supreme Court rulings in recent years.
In Sobol v. Goldman (CA 807/77, 33 (1) PD 789), an appeal was filed in the Supreme Court against a District Court judgment, the question adjudicated being the validity of a rabbinic court judgment given by way of compromise, when the Law directs it to rule "according to the religious law." The Supreme Court's judgment (per Justice Elon) included a detailed exposition of the status of compromise in Jewish Law. The court discussed the conflicting opinions on the status of compromise in adjudication during the talmudic period (see above: "Desirability of Compromise"), and the approach that was ultimately accepted in Jewish Law in the Codes and by earlier and later authorities (rishonim and aḥaronim) regarding the positive role of compromise ruling in the world of halakhah and its integration as a substantive element in Jewish Law. Justice Elon added that:
The Supreme Court was confronted with a similar question in the Gabbai case (HC 2222/99 Gabbai v. Rabbinical Court of Appeals, 54 (5) 401). In a petition submitted to the High Court of Justice, a woman contested the decision of the Rabbinical Appeals Court to affirm the regional rabbinical court's ruling on the division of property between herself and her husband in the wake of their divorce. She claimed that the ruling contradicted the "joint assets rule." The Rabbinical Court of Appeals held that the regional rabbinical court had decided between the disputants by way of an imposed compromise where there was no possibility of deciding the facts.
Justice Proccaccia elucidated the essence of compromise in Jewish Law, comparing it with compromise in the civil law. Relying on Justice Elon's ruling in the Sobol case (see above), she determined that compromise was an intrinsic part of the system of religious law. She further quoted statements made by E. Shochetman as to its importance, which derives from "the supreme importance conferred by Jewish Tradition to the value of making peace between man and his fellow" (p.
and the ruling of the Shulḥan Arukh:
Justice Yitzhak Englard, too, agreed that the rabbinical court is empowered to impose a compromise. He further added that a compromise should only be forced on the parties when there is a substantial doubt arising from evidence submitted by the parties, precluding judicial resolution of factual questions. (See also R. Ḥayyim David Halevi, "The Compromise Ruling Where There Is an Obligation to Take an Oath" (Teḥumin, 12 (5751 – 1991) 330: "There may be different levels of non-clarification. The Rosh apparently did not intend to rule that wherever the Bet Din is in doubt it should give a compromise ruling, for there would be no end to it, and there is always the possibility that one of the litigants is lying. His rule would therefore appear to be applicable only in those cases in which the evidential picture and the pleadings of the litigants create a real doubt among the dayanim. (ibid., 429).)
The dispute between the judges only related to the issue of whether the circumstances were such as to compel the rabbinical court to rule in accordance with the joint property rules (see *Husband and Wife; *Dowry).
Another matter that came before the Supreme Court (CA 61/84 Biazi v. Levi, PD 42 (1) 446) concerned two parties to a dispute who concluded an agreement whereby the results of a polygraph test would be considered as conclusive evidence in the determination of facts in dispute between them. This agreement received the force of a judgment. After the results were received, the party whose factual account was confuted by the test results filed an appeal in which he contested the binding nature of their agreement.
The minority view (Justice Bach) allowed the appeal, whereas the majority view (Justices Goldberg and Elon) dismissed it. The judgment regarded the agreement between the parties as a compromise agreement, relying upon the sources of Jewish Law referred to above, and additional sources. It further emphasized (Justice Elon) that:
Further on, the ruling extols another benefit of compromise, which in the view of Jewish Law makes it preferable to ruling by law. Compromise ensures rapid judgment and resolution of the dispute, thereby preventing postponement of judgment that may be the result of ruling according to strict law. In support of this consideration, the judgment cites the following statement by Maimonides, in his Introduction to the Commentary on the Mishnah:
Maimonides' guideline is that the judge must do his best to achieve a compromise, and only if he fails to affect a compromise between the parties should he rule by strict law. In that eventuality the examination of the facts and the hearing of the parties may be a protracted process, because the judge is duty-bound to allow the parties to exhaust all of their procedural options.
It is noteworthy that the same judgment also cites U.S. Supreme Court rulings praising compromise as an efficient and commendable means of resolving disputes, in the spirit of the aforementioned sources of Jewish Law (Holman Mfg. Completion Works. v. Dapin 193 NW 986 (1923) pp. 988; Sanders v. Roselawn Memorial Gardens, Inc. 159 SE 2d 784 (1968), pp. 795). Further on in the judgment, Justice Elon characterizes the positive approach to the compromise agreement concluded between the parties as "what has long been regarded as appropriate legal policy … and which today may well be one of the lifelines enabling the conduct of adjudication and rulings in accordance therewith, which is the ultimate purpose of the rule of law" (ibid., 480–81)
Another example of the influence and application of Jewish Law in the Israeli legal system is provided by CA 287/88 Manof v. Saleima, 44 (3) PD 758. This judgment concerns an application filed by a party to disqualify the judge in the previous instance, in view of the following compromise proposal which the judge made to the litigants at the outset of proceedings: "In view of the above, the Court suggests that if the background explanation provided by plaintiff 's attorney is correct (and its veracity may be reasonably presumed, in view of the letters), then the defendant ought to indemnify the plaintiff for all such expenses and damages as he may specifically demonstrate to the defendant's attorney, and they will compromise on a sum to be determined by the Court …" The judge rejected the application, claiming that she had not intended to establish that the background explanation provided by plaintiff 's attorney was in fact correct. Rather, she had described the proceedings and pleadings that had been raised so far and which would continue to unfold in the course of the litigation. The Supreme Court ruled (per Justice Elon) that under these circumstances there were no grounds for impugning the judge's objectivity. He further added that the judge's proposal to bring the parties to a compromise was "correct, commendable, and blessed," and that "every court that effects a compromise is deserving of praise" (MT, Sanhedrin, 22:4), because "it brings about peace between a man and his fellow" (Mekhilta, Tractate De-Amalek, Yitro, §2), and it constitutes appropriate legal policy."
The Hoffman ruling (HC 699/89 Anat Hoffman v. Jerusalem Municipal Council, 48 (1) PD 678) exemplifies the use of the same principles of Jewish Law, affirming the judicial recourse to compromise – but in this case the dispute was not between individuals, but between an individual and the sovereign authorities. The ruling concerned a petition filed by the representatives of the non-Orthodox streams of Judaism against the Jerusalem Municipality. They objected to the decision not to approve their candidacy in the elections to the Religious Council. The Supreme Court judgment invalidated the municipality's decision, and in the beginning of its judgment the Court (Justice Elon) described its efforts at persuading the parties to compromise:
The Law in the State of Israel
In 1992 Israeli Law was amended (The Courts Law (Consolidated Version) 5744 – 1984), by the addition of provisions which established the position of the compromise as an integral part of the judicial procedure:
The impact of Jewish Law and the Supreme Court rulings cited above are clearly discernible in the provisions of the new law. The law permits the court to suggest compromise settlements to the parties; it enables them to reach an agreement whereby the judge will not adjudicate in accordance with the substantive law, but rather by way of compromise, and his decision is binding. The law also allows the court to refer the parties to alternative proceedings outside the court: mediation, in which an attempt is made to bring the parties to a consensual settlement; and arbitration, in which a ruling is given, but not necessarily in accordance with the substantive law (see *Arbitration). The explanatory notes accompanying the draft law (HH 5751, p. 319), emphasize the efficiency of the compromise mechanism: "It is proposed to confer upon compromise frameworks – mediation and arbitration – formal standing in the principal legislation, the intention being to enable the litigants to choose additional paths for the resolution of their dispute. This establishes possibilities for speeding up the resolution of the dispute, on the one hand, and easing the burden imposed by the litigation itself, on the other."
[Menachem Elon (2nd ed.)]
Gulak, Yesodei, 4 (1922), 177f; Gulak, Ozar, 281–6; idem, in Yavneh, 3 (1941/42), 19–34; Herzog, Instit, 2 (1939), 33–35. ADD. BIBLIOGRAPHY: M. Elon, Hamishpat ha-Ivri (1988), I:150–56; idem, Jewish Law (1994), I:169–73; idem, Jewish Law: Cases and Materials, (1999), 361–67; E. Shochetman, Seder ha-Din (1988), 208–16; B. Lifshiz, "Pesharah," in: Mishpetei Ereẓ (2002); M. Elon and B. Lifshitz, Mafte'aḥ ha She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, vol. 2 (1986), 393–94; B. Lifshitz and E. Shochetman, Mafte'aḥ ha She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefatve-Italyah (1997), 290. For further bibliography see *Arbitration.
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