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October 22, 2014 / 28 Tishri, 5775
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Compromise!

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“Fine & Feder Furniture” had been a landmark in the shopping center for decades. The two partners had opened a small store thirty years before and now ran a humongous showroom. Rumors were circulating of a breakup in the partnership, though, due to developing mistrust.

Sure enough, the bold business sign sprawled across the storefront was changed one day to read “Fine Furniture.” Shortly afterward, Mr. Fine appeared in Rabbi Dayan’s beis din with a request to summon Mr. Feder to a din Torah.

“Mr. Feder embezzled $240,000 during the last ten years of our partnership,” the claim read. “This sum needs to be factored in to the dissolution of our partnership.”

Rabbi Dayan issued a summons to Mr. Feder to appear before the beis din. Mr. Feder accepted the summons, but responded, “I did not embezzle at all. I deserve a full 50 percent share of the business.”

When the two men appeared in beis din at the outset of the litigation, Rabbi Dayan turned to them and said: “We would like to offer you the option of mediation, working toward a compromise.”

Mr. Feder was open to the idea, but Mr. Fine refused outright. “Mr. Feder embezzled $240,000 and owes me the money,” he argued. “There’s no reason for me to compromise.”

“There are often two sides to the issue,” Rabbi Dayan responded.

“As far as I’m concerned, there are no two sides,” Mr. Fine said emphatically.

“One never knows the outcome of the case,” Rabbi Dayan replied softly.

“I have no doubt in this case,” responded Mr. Fine. He demanded that the case be ruled according to the letter of the law.

The case was intricate and involved a number of sessions in the beis din. In addition to witnesses, Rabbi Dayan and his colleagues called in accountants to provide their professional perspective. Finally, Rabbi Dayan informed Mr. Fine and Mr. Feder, “We will schedule one more session for next week, in which we expect to render the final verdict.”

The following week, Mr. Fine and Mr. Feder filed into the beis din and took their seats. Mr. Fine sat upright.

Rabbi Dayan turned to him and said: “We are approaching the conclusion of the case. I would like to ask you one final time, though, if you might be open to compromise.”

“I don’t understand,” replied Mr. Fine, annoyed. “Haven’t you reached a decision already? Why are you still proposing a compromise?”

“Until the verdict is finalized, it is still proper to offer compromise,” replied Rabbi Dayan. (C.M. 12:2)

“As a beis din, I would expect you to advocate the Torah law,” said Mr. Fine. “Why do you seek compromise?”

“Mediation and compromise is also considered part of Torah law,” explained Rabbi Dayan. “There is din – the absolute legal ruling, the strict letter of the law, in the event of irreconcilable conflict. However, there is also mishpat shalom – justice that is aimed at achieving peace and reconciliation. Shalom is an ideal even loftier than din.” (Sanhedrin 6b)

“But isn’t advocating compromise unfair to the truthful party?” argued Mr. Fine. “If you already know who the winning party is, isn’t it dishonest to encourage him now to compromise?”

“Indeed, Tosfos and many other authorities maintain that once the judge knows what the ruling is, he should no longer advocate compromise,” explained Rabbi Dayan. “However, the Shulchan Aruch rules that until the verdict is issued the dayan can still advocate compromise. The Shach [12:4] supports this position, since it is a mitzvah to achieve a peaceful resolution.”

“If we’re going to compromise, though,” objected Mr. Fine, “what’s the point of getting the beis din involved? We can simply decide the split the money!”

“There are many factors to consider when mediating a compromise,” explained Rabbi Dayan. “There are often legal requirements to swear, which we try to avoid because of the severity of oaths; facts that cannot be properly verified; issues that fairness and moral responsibility may dictate, but do not carry full legal weight; issues subject to halachic dispute that are difficult to resolve completely. The compromise is meant to bring the parties to a fair, willing agreement that accounts for these factors.

“Are there guidelines regarding the amount of the compromise?” asked Mr. Fine.

“A compromise should reflect the legal ruling,” added Rabbi Dayan. “This is referred to as p’shara krova l’din, a compromise that approaches the law. Generally, this means a variance of up to one-third from the letter of the law. For example, in our dispute of $240,000, if the law leans towards the plaintiff, the suggested compromise would be to pay a sum of $160,000 or more. If the law leans in favor of the defendant, the suggested compromise would be to pay a sum of $80,000 or less.” (Pischei Teshuvah 12:3)

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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