Siman 12

Two who came before you for judgment, one soft and one hard, meaning he is a violent person and does not listen to the voice of teachers—before you have heard their words, or even after you have heard their words but you do not know in which direction the law inclines, you are permitted to say to them: "I am not attending to you," lest the hard one be found liable and pursue the judge. But once you have heard their words and you know in which direction the law inclines, you are not permitted to say: "I am not attending to you." And regarding this it was said: "You shall not be afraid of any man, for the judgment is God's." And "judgment" is called the conclusion of the law when it is known in which direction the law inclines. And if he was appointed as a judge in the city, he is always obligated to attend to them. And likewise, if both of them are strong, he must attend to them, for when one pursues him, the second will save him. Our teacher, the Rema, wrote that now it is the custom that if the beit din sees danger in the matter, they may withdraw even at the conclusion of the law and even a permanent judge. And specifically when there is danger in the matter, but if there is no danger, only that he will have a grievance from the violent person, he cannot withdraw; and before the Knower of Secrets it is revealed for what reason the judge withdraws himself.

It is a mitzvah to say to the litigants: "Do you want law or compromise?" and it is a mitzvah to explain to them that they should desire a compromise. Just as a judge is warned not to pervert the law, so too he is warned not to pervert the compromise, as it is said: "Justice, justice shall you pursue" — one for law and one for compromise. Any beit din that exerts effort to constantly perform a compromise is praiseworthy, because it is proper to distance oneself from Torah law due to the depth of the law. In what case does this apply? Before the conclusion of the law; and even though he has heard their words and knows toward which side the law inclines, nevertheless it is a mitzvah to perform a compromise. But after the conclusion of the law, when he has said, "So-and-so, you are innocent; so-and-so, you are liable," he is not permitted to perform a compromise between them with the claim that he says to them, "I feared lest I erred in the law," for since he has told them the law, he robs the innocent party of that which he reduces for him based on the compromise. Nevertheless, it is permitted for the judge to request of the innocent party that he waive his rights of his own will to the liable party [Shach]. However, another person from the side is permitted to request of the litigants, not in the place of the seat of the judges, that they perform a compromise even after the conclusion of the law. And when there is a matter of an oath in this law, even the judge is permitted to exert effort in a compromise in order to exempt from the punishment of an oath. And regarding acting beyond the letter of the law, one does not compel, even though it appears to the beit din according to the matter that it is proper to compel. And there are those who disagree on this and hold that they can compel regarding acting beyond the letter of the law. And their dispute is only regarding absolute compulsion, but with words, all agree that they must compel him, such as saying to him that "you are obligated to act beyond the letter of the law," and similar matters of rebuke and the awakening of mercy.

A dayan must not attend to any case upon which a ruling has already been made, whether it was a judgment or a compromise, even if one litigant provides a justification for his words, saying that they coerced him into the judgment or some other justification. One must not attend to this, for one beit din does not examine after another beit din, as if it were not so, there would be no end to the matter; furthermore, this causes hatred and dispute, and peace does not emerge from such a matter [Levush], unless it is a matter that will be explained in siman 14, section 8, when a litigant says, "Write for me from what reasoning you judged me," as is written there.

The power of pesharah is so great that even regarding the money of orphans, where there is no permission to waive their money, nevertheless, if the beit din sees that this is for the benefit of the orphans to quiet them from quarrels and disputes, and that it is possible that through this a loss would reach the orphans, the beit din has the power to waive their money and perform a pesharah. They also have the power to decree that the pesharah shall be upheld so that the orphans cannot protest when they grow up. And even if they did not explicitly decree so, the orphans do not have the power to protest when they grow up; since the beit din did this for their benefit, it is like a purchase and sale, as the beit din has permission to buy and sell the property of orphans for their benefit. Similarly, an apotropos of orphans has this power, and he must deliberate very carefully so that the orphans do not lose more than what is necessary for their benefit, and it is better that the apotropos do this through a beit din. Likewise, the power of pesharah is great in that a judge has the power to render a judgment in the manner of a pesharah in a place where the matter cannot be clarified and he is not permitted to leave it from under his hand without a conclusion. They have permission to rule according to their own eyes' vision, sometimes based on shuda de-dayyani and sometimes based on pesharah [Netivot HaMishpat]. All this is when the law cannot be clarified because of the deceit of the defendant or for another reason, and it is necessary to perform a pesharah; but when the deceit is on the part of the plaintiff, the judge must remove himself from this case [ibid.].

Even though it is a mitzvah for the judge to effect a compromise, nevertheless, the litigant himself, when he is the possessor, is forbidden to employ stratagems until his opposing litigant is forced to make a compromise. And if he did so, it is theft in his hand until he gives to his opposing litigant what is due to him according to the law. And this is specifically when he knows that the justice is with his opposing litigant; but if he knows that the justice is with him, but that before the beit din he is unable to clarify this because they will not believe him and will find him liable, it is permitted for him to seek a stratagem so that it will come to a compromise, provided that he does not appear as a wicked person before the beit din [ibid.].

And with what is the pesharah established so that the litigants cannot retract, for with words alone it is not established? Even when there was a beit din of three and they were initially engaged for judgment and afterwards they requested of them to perform a pesharah and the litigants consented, saying "we accept your words," we do not say that the power of the beit din is great and the pesharah is established so that they cannot retract. For on the contrary, even if in a place where the litigants were acting without a beit din words alone would have been effective—such as if the plaintiff were to waive a certain amount to the defendant, and a waiver does not require a kinyan, or if one waived to the other an oath that he was required to swear, for which a kinyan is not required as will be explained—nevertheless, in a beit din even in such a case it is not effective and he can retract. This is because he can say, "I did not waive with a whole heart, but rather due to the urging of the beit din I was forced to waive," and it is like a waiver in error. Therefore, if after the pesharah he said to his litigant, "I waive such and such to you" not due to the urging of the beit din, it does not require a kinyan according to the law of waiver. But without this, a kinyan is required for every pesharah, and when they have performed a kinyan they cannot retract, even if the pesharah was before a single judge or without a beit din, for after a kinyan there is nothing else.

And what kinyan shall they perform? For a standard kinyan sudar where they say, "we accept a kinyan on the pesharah," is of no use at all, as this is a kinyan devarim alone, as will be explained in siman 203, for every kinyan must take effect upon some object. And even if they perform a kinyan from the hand of the claimant that he shall waive such and such, it is of no use, for this is like a kinyan "I will give," which will be explained there as being ineffective ibid. Therefore, the defendant must transfer to the claimant the object over which they are divided via kinyan sudar, and when he performs the kinyan he shall say, "I hereby transfer such and such a thing to you," and the claimant shall say, "I waive to you up to whatever amount the mediators shall say." And if the law was concerning money, and money is not acquired through chalifin as written there, therefore when he performs the kinyan sudar he should obligate his person in the language of obligation and say, "with this kinyan I obligate myself for the sum that the mediators shall say." And the same applies that he can obligate himself in a shtar, that before the peshar he shall give a shtar against himself that he owes so-and-so such and such without any condition, for an obligation with a condition is not effective in a shtar, only in a kinyan sudar [Urim VeTummim and Netivot HaMishpat]. And an obligation in a shtar is effective even though he owes him nothing, as written in siman 40, or he should write the shtar in the language of admission, that he admits he owes so-and-so such and such. And the same applies to any of the other methods of acquisition according to the view of the dayanim in this matter. And when they accept a kinyan on the pesharah, they must state upon whom they are relying for this pesharah. And if they did not mention them explicitly, they have no power to perform the pesharah except for the dayanim who sat for this judgment if they accepted the pesharah in their presence, for presumably their intention was for them. And if they accepted not in the house of the dayanim and did not mention upon whom they rely, they must accept a kinyan anew and state upon whom they rely. And when the dayanim say they performed a kinyan and the litigant denies them, the dayanim or the mediators are believed [Shach]. And one dayan or mediator is not believed, for one witness in a case of denial is nothing [Urim VeTummim]. And dayanim who say that the litigants accepted upon themselves that they should judge before them and the litigant denies them, they cannot sit for this judgment when there are no other witnesses for this; for granted that they are believed as witnesses for this, nevertheless they cannot judge, for a witness cannot become a dayan. But mediators in such a case are believed, for a witness can become a mediator [see there subsection 6]. And if they did not accept with a kinyan sudar to perform a pesharah, but only made a tekiat kaf to perform a pesharah, even though this is not a kinyan, nevertheless we compel them to fulfill the tekiat kaf as it is like an oath. Therefore, when he dies, we do not compel the heirs to fulfill the peshar since this is not a kinyan; but when he accepted with a kinyan sudar and died, the heirs are obligated to fulfill and perform the peshar.

That which we have said, that mechilah does not require a kinyan, will be explained in siman 241; for even if he holds a shetar or a mashkon, mechilah is also effective. Since he forgives him the debt and the personal obligation is removed from the borrower, the shetar and the mashkon are automatically nullified, as these are guarantees for the personal obligation. And even if the mechilah was due to the entreaty of the defendant, who entreated him to forgive him the debt or the oath, it is a valid mechilah. This is not similar to the entreaty of the dayanin, which is not a valid mechilah, as I wrote in section 6, for he can say "I was unable to be brazen toward them," and it is like a mechilah in error; but regarding the opposing party, it is not relevant to say so. And there are those who say that when he holds a shetar or a mashkon, it is not a mechilah through words without a kinyan. Since there is a dispute among the poskim in this matter, the defendant can automatically say "kim li" like the poskim who hold it is a mechilah [Netivot HaMishpat]. Furthermore, in siman 241, section 3, we proved with the help of Heaven that the primary halachah is that mechilah is effective even with a shetar and a mashkon; see there. Mechilah in thought is nothing and he can retract it, except in a case where there is a clear assessment of intent, such as if he said "eat with me" and the like; if it was in his thought that it should be for free, it is like a gift and he cannot retract it [Ktzot HaChoshen]. And see in siman 241.

Two who accepted mediators with a kinyan and a fine of a certain amount for whoever violates the compromise—if he said, "If I do not fulfill the compromise, I will pay such-and-such fine," the fine becomes like a buyout of the compromise, and when he pays the fine, he does not need to fulfill the compromise [Choshen Mishpat and Be'er Sheva Even HaEzer siman 50]. And even if the fine was made in a manner that involves asmachta, he must fulfill either the compromise or the fine. But if he said that he accepts it upon himself with a kinyan and a fine, then he must fulfill the compromise even if he wishes to pay the fine, for the fine is not like a buyout of the compromise.

When the mediators have issued a ruling, the litigants are obligated to fulfill the ruling immediately, and they cannot say, "Since they did not set a time, I will fulfill it whenever I wish." On the contrary, since they did not set a time, presumably their intention was that they should fulfill it immediately. Therefore, one of the litigants can compel the second to fulfill it immediately. And whether the mediators are believed to clarify their intention regarding what is not well-explicit in their ruling will be explained in siman 23 with the help of Heaven.

The mediators, once they have told the ruling before the litigants, do not have the ability to change anything because they have completed their mission; and as long as they have not told the ruling in their presence, even though they told the witnesses and others, they can add or subtract according to what seems to them to be the equity [Birkei Yosef]:

A peshara that was made under duress is not a peshara, and even if he performed a kinyan sudar and nullified any modaa, nevertheless, if it was subsequently clarified before a beit din that it was made under duress and the beit din understands that he was coerced, the peshara is void. And even if he swore, if it was in a manner that he could nullify it in his heart according to what was written in Yoreh Deah siman 232, he may retract from the peshara. And specifically when it becomes known that even the nullification of the modaa was under duress, and the beit din must rule according to the primary law. And all this is when his duress becomes known to the beit din, and then even if he did not submit a modaa, the peshara is void. But when he cannot clarify his duress, even if he submitted a modaa beforehand, it is nothing, for the primary matter depends on the understanding of the dayanim whether he was coerced or not.

And there is another type of duress where the pesharah is void, such as one who deposited an object with another and the bailee denied it, and he was forced to reach a pesharah with him, and afterwards he found witnesses who know the matter; had he known of the witnesses beforehand, he would not have reached a pesharah with him, the pesharah is void. And so too in other matters, such as if he found a deed or evidence that he did not know of beforehand, and certainly if his litigant confessed. The law of a pesharah in error will be explained in siman 25. And so too if they ruled that a litigant must take an oath and he made a pesharah, and afterwards it became known to the beit din that he is only liable for a shevuat hesset, he can void the pesharah by saying, "I did not want to swear even truthfully and therefore I made a pesharah, but to accept a shevuat hesset, I will accept," and it is a pesharah in error and he may retract. And so too when he found a witness who assists him, who exempts him from an oath, the pesharah is void even when he already handed over the money, even though the witness causes the extraction of money [it appears to me].

That which we have said, that a peshara requires a kinyan, refers specifically to when they have not yet fulfilled the ruling of the mediators. However, when they have fulfilled the ruling, such as the delivery of money or an object to the opposing party, or the delivery of the business, or if they were divided over land and the mediators made a division between them and each one built upon his portion, they cannot retract even without a kinyan. And so it is in other matters, for the fulfillment of the ruling is better than a kinyan. And if they fulfilled part of the ruling and part has not yet been fulfilled, and one of them wishes to retract regarding that which has not yet been fulfilled, he cannot retract, for the part that was fulfilled is no worse than a kinyan. And although there are those who disagree on this, nevertheless, it appears that this is the primary halacha. And if one of them fulfilled the ruling and the other has not yet fulfilled it, and this one wishes to retract, it requires further study as a matter of law, but the reasoning tends more toward the view that he can retract.

In a compromise, one does not follow the majority; rather, it is necessary that they all agree. It is not similar to a legal judgment, for there it is a decree of the Torah to "incline after the majority," but in a compromise, which is from the will of the litigants, and they did not specify that they would follow the majority, presumably their intention was that they all agree. Therefore, it is good to stipulate beforehand that they will follow the majority, for according to the majority of cases it is very difficult for everyone to agree to one opinion, and their effort will turn out to be in vain.

The mediators may also be witnesses [our teacher, the Beit Yosef, in the name of the Nimukei Yosef], meaning that even if they testified before the conclusion of the ruling regarding some matter of the mediation—for in such a case, if they were sitting in judgment, they would be disqualified from concluding the judgment, as a witness cannot become a judge—nonetheless, in mediation, the witness may be a mediator, as I wrote in section 7. However, after the conclusion, even the judge may be a witness, for a witness cannot become a judge, but a judge may become a witness [so it appears to me].

A compromise without a kinyan, where they gave pledges into the hand of the mediators for the fulfillment of the compromise, is nothing unless one transferred ownership to his fellow of the body of the pledge, such that he says to him, "acquire this object according to what the mediators shall say." But if he said, "if I do not fulfill the compromise, deliver the pledge to my fellow," it is an asmakhta and his fellow has not acquired it, unless he performed it in a manner that there would be no asmakhta in it according to the laws that will be explained in siman 207. And it is better that he transfer ownership of the body of the pledge without any condition, as I have written. And if the pledge was a document, it is of no use at all, for a document is acquired only through writing and delivery, as I have written in siman 66.