Mr. Landau, builder, had just finished doing extensive renovations on Mr. Naiman’s house. When the time came for the final payment, a dispute arose over certain additional charges Mr. Naiman refused to pay. Mr. Landau tried unsuccessfully to reach an agreement with Mr. Naiman, who refused to pay anything extra.
“I have no choice but to sue you,” Mr. Landau said.
“Go ahead,” said Mr. Naiman. “I am convinced that I’m exempt and am willing to litigate in any reputable beis din.”
Mr. Landau sued Mr. Naiman in Rabbi Dayan’s beis din.
“We serve as a beis din,” the secretary said, “but we require the two parties to sign a binding arbitration agreement, to make the ruling of beis din enforceable in civil court.” The two parties signed the form.
The case was complicated. There were disagreements over factual issues with conflicting evidence; the halacha was also subject to a wide-ranging dispute between the authorities.
The three dayanim wrestled with the case, but could not achieve a clear-cut ruling. Two wanted to obligate Mr. Naiman for 40 percent of the disputed amount as an imposed compromise, whereas the third wanted to exempt him completely. The three continued to deliberate but remained entrenched in their positions and could not reach a unanimous agreement.
Rabbi Dayan announced to the parties: “In accordance with the majority view, Mr. Naiman must pay 40 percent as a compromise.”
“I accept the ruling,” said Mr. Naiman. “However, I have a question, if I may ask.”
“Certainly,” replied Rabbi Dayan. “Go ahead.”
“You said the compromise ruling is based on the majority,” said Mr. Naiman. “While a legal ruling clearly follows the majority, I recall learning that compromise arbitration must be a unanimous decision; perhaps we should not follow the majority in our case.”
“Indeed, the Shulchan Aruch cites from a number of Rishonim that compromise arbitration requires a unanimous decision of the arbitrators,” replied Rabbi Dayan. “They limit the Torah’s decree of majority rule to beis din, but other forums, which are based on the parties’ agreement, require unanimous decision to obligate a person in payment.” (C.M. 12:18; Rama 18:1; Responsa Rashba 5:289)
“What is this based on?” asked Mr. Landau.
“The Gemara (Avodah Zarah 72a) addresses the case of a buyer and seller who agree the price will be established by a panel of evaluators,” replied Rabbi Dayan. “If they say, ‘As a group of three evaluates,’ it reflects a legal ruling that follows the majority, whereas if they say, ‘As three say,’ it reflects arbitration that requires unanimous agreement. Nonetheless, in most cases nowadays, a compromise arbitration decided by the majority of the dayanim suffices.”
“Why is that?” asked Mr. Naiman.
“First, when coming before a beis din for arbitration, you signed an arbitration agreement that authorizes the beis din to rule either according to the letter of the law or by imposed compromise,” explained Rabbi Dayan. “It is recommended that the agreement explicitly state the requirement to follow even the majority of a compromise. Even if it doesn’t, some maintain the compromise is implicitly made parallel to a ruling that follows the majority.” (See Sma 13:20; Pischei Teshuvah 13:6; Aruch Hashulchan 12:15)
“Furthermore,” added Rabbi Dayan, “the compromise imposed by the beis din is usually intended to be close to the letter of the law. The dispute between the dayanim regarding the compromise often reflects a dispute over what the law should be, so that the majority of the compromise actually reflects a majority of ruling.” (Divrei Malkiel 5:10)
“Finally, some suggest that when the litigants initially came before the beis din for a judicial decision and the dayanim encouraged them to accept imposed compromise,” concluded Rabbi Dayan, “they continue to serve as dayanim who rule not as arbitrators, so that we follow the majority opinion.” (Cheishev Ha’efod 2:17)Rabbi Meir Orlian