Peshara versus Din: The Powers and Limits of Pesharah – Part 2

Peshara versus Din: How Dinei Torah’s come to their verdicts – Part 2:[1]

1. The Forms of Compromise in Pesharah Versus the Torah Strict Letter of the Law:

The type of compromise authorized in pesharah differs from strict din Torah in three major areas:

1. The evidentiary standard required to determine which side is correct
2. The authority to reduce or adjust the final amount of damages, even when strict din would require full compensation
3. The ability to award monetary payments for actions that, under strict Torah law, would not obligate payment

We will explain each of these areas:

Lowering the Standard of Evidence:[2] Under Torah law, certain levels of proof—such as valid kosher witnesses—are required to establish a claim. Without this level of evidence, a judge operating strictly according to din may be unable to rule in favor of the injured party. However, in cases adjudicated under pesharah, dayanim are empowered to rely on circumstantial evidence, reasonable inference, or the overall impression of the case. They may issue rulings and obligate monetary payment even without formal witnesses, when they believe this reflects the fairest and most accurate outcome.

Awarding only partial damages:[3] Another classic expression of pesharah in Beis Din is the authority to award only partial damages even in cases where strict din Torah would require full compensation. When ruling through pesharah, the Dayanim may reduce the defendant’s financial liability based on the circumstances, the realities on the ground, and the goal of achieving a peaceful and balanced resolution. This allows the Beis Din to impose partial damages when such an outcome best serves justice and harmony between the parties, even though strict law would mandate full payment.

Awarding Damages for Harms Not Actionable Under Strict Torah Law:[4] The authority of the judges extends further: they may impose monetary liability for damages that the Torah itself would exempt. A classic example is grama—indirect causation. According to strict din, a person who causes only indirect damage is generally exempt from payment. But if the case is being judged under pesharah, the dayanim may override the exemption of grama and award compensation to the harmed party when fairness demands it. This allows the Beis Din to address real‑world harms that fall outside the narrow boundaries of halachic liability. The same principle applies to many other areas in which a Beis Din, operating according to strict Torah law alone, normally cannot impose penalties or damages. These include cases of embarrassment, penalties which are under debate by which one of the sides can claim Kim Liy, fines instituted in Talmudic times, and even situations in which one party acted unethically and is halachically required only to seek forgiveness but not to pay compensation. Under pesharah, the Beis Din may nevertheless impose monetary obligations when such payment is necessary to bring justice, accountability, and closure.

[From this emerges an important practical rule that everyone should know: a litigant does not need to research in advance whether the other party would be liable under strict din Torah in order to take them to a Beis Din. If a person feels they have a justifiable claim, they may bring the matter before a Beis Din, which can then resolve the dispute through pesharah, crafting a fair compromise that restores peace between the parties. Many individuals avoid going to din Torah out of the mistaken belief that Torah law alone will not help them. In truth, modern batei din have the halachic authority—and the responsibility—to use pesharah to reach equitable, peaceful, and practical resolutions for all involved.]

1. Limits of Peshara Compromise:

Although pesharah may sound like an open‑ended license for judges to rule however they wish, in reality it is bound by significant halachic limitations.

Karov Ladin:[5] One of the most important principles is that the compromise must be karov la‑din—meaning it must remain reasonably close to what the strict Torah ruling would have been. The judges must first understand what the law requires according to din, and only then determine how far a compromise may appropriately deviate from it.

Up to 1/3^rd deviation:[6] Some authorities state explicitly that a pesharah ruling may not diverge more than one‑third from the Torah’s strict determination.

Only in justifiable cases:[7] Furthermore, compromise does not mean trying to please both sides. If the judges know with clarity that one party stole, borrowed money, or owes payment under Torah law, and the party simply refuses to pay while hoping to exploit the concept of pesharah, the Beis Din will follow din, not compromise. There is no justification for pesharah in such cases. Rather, pesharah is reserved for situations where its use is justified—such as when the evidence is unclear or incomplete, when witnesses are lacking, or when the facts cannot be definitively established according to the strict halachic standard. In such matters, the judges may determine a fair middle path that resolves the dispute and brings a just conclusion that both sides can accept.

Debunking the 50/50 Pesharah theory: Many people mistakenly believe that pesharah means the judges will simply split the claims halfway, but this is completely incorrect. As noted above, pesharah is often limited by the rule that compromise may not diverge more than one‑third from the strict halachic outcome, and even this is applied only when justified. In cases where compromise is not warranted, Beis Din does not apply pesharah at all—making the ‘half‑half’ assumption not only false, but explicitly rejected by the Talmudic[8] sages as a serious misunderstanding.

1. The Shtar Boreirus of Today: No Compromise – No Case[9]

We already find among the Rishonim[10] that when a litigant comes before a Beis Din insisting that the case be judged strictly according to din Torah, the judges may refuse—on the grounds that in our times it is no longer feasible to adjudicate solely on the basis of uncompromising din. This approach is reflected in contemporary practice: virtually all recognized Batei Din require both parties to sign a shtar borerus, an arbitration agreement, before the proceedings begin. This document does more than obligate the litigants to accept and uphold the final ruling. It also sets out the parameters, procedures, and methods the judges will employ—terms that are binding, non‑negotiable, and not subject to appeal. One of the most crucial clauses in this shtar is the mutual authorization given to the Beis Din to rule either in accordance with strict din or according to pesharah, as they deem appropriate for the circumstances. In practice, this empowers today’s dayanim to employ a pesharah‑based model of adjudication whenever necessary. Consequently, a litigant who refuses to sign such a shtar beirurim and insists on being judged only by the strict letter of din Torah will generally not find a Beis Din willing to hear the case.

1. Case Examples

#1:

In a documented dispute, two business partners—Reuven and Shimon—jointly operated an import business when a shipment was mishandled, resulting in a claimed loss of ₪85,000. Reuven argued that Shimon’s negligence caused the loss, while Shimon maintained that he was exempt because the damage constituted grama, indirect causation, which under strict din carries no monetary liability. Indeed, according to pure Torah law, Shimon would have owed nothing: grama b’nizakin patur, and the high standard of evidence required by din left Reuven without halachically conclusive proof. However, both parties had already signed a shtar borerurs empowering the Beis Din to rule either according to din or pesharah. After reviewing the circumstances, the dayanim concluded that although Shimon was exempt under strict law, fairness and partnership responsibility dictated that he bear some portion of the loss. Based on pesharah kerovah la‑din, they ruled that Shimon must pay ₪30,000—far less than the full claim but significantly more than the zero liability he would have had under din. This ruling preserved the moral responsibility, addressed the financial harm, and provided a balanced resolution that pure legal formalism would not have achieved.

#2:

A real‑world example of pesharah-based reasoning appears in a monetary dispute, involving a business owner who rented decorative macramé items for events. One of these items was stolen during a client’s event, and the owner sued the client for ₪85,000—claiming both the value of the piece and the loss of future income she would have earned had the item remained in her rental inventory. The renter argued that the amount was exaggerated, disputed the true market value, and maintained that any claim for lost profits was legally invalid because such loss constituted grama, which is exempt under strict Torah law. Under din Torah, the Beis Din noted, damages caused through indirect causation do not create monetary liability, and uncertain valuation typically favors the party holding the money (muchzak). Strict din therefore would have exempted the renter from paying anything beyond the minimal proven value of the lost item, and certainly from paying loss‑of‑profit damages, which the Torah classifies as non‑compensable.

However, since both litigants had signed an arbitration agreement empowering the Beis Din to rule according to din or pesharah, the dayanim exercised their authority to reach a balanced, equity‑based decision. They established a compromise valuation between the high price demanded by the owner and the low figure proposed by the renter, taking into account industry norms and the lack of exact proof. They further required the renter to pay a partial amount for lost income, even though such compensation would be exempt under strict halacha. In the end, the Beis Din obligated the renter to pay both the compromise value of the stolen item and a reduced portion of the future profit loss, reflecting responsibility, fairness, and the practical needs of the business relationship. This case is a strong illustration of modern pesharah: where din alone would have resulted in significantly lower or no liability, the Beis Din used its accepted authority to create a more just and realistic outcome based on the circumstances.

[1] See Michaber C.M. 12-; Tur 12; Sanhedrin 6b; Sefer Pesher Hapeshara p. 8

[2] Michaber 12:5 “The judge retains the power to compromise when the matter cannot be clarified, and he otherwise unable to issue a verdict”; Smeh 12:12 in name of Rosh Kelal 107:6 “The Sages granted the judge permission to rule according to what his eyes perceive in situations where the matter cannot be clarified through investigation or valid testimony — sometimes based on reasoned assessment (omed da’as), and sometimes in whatever manner the judge sees appropriate even without assessment, without evidence, and without logical inference. This is the concept known as shuda d’dainai. And at times he may act through pesharah.” Smeh ibid “the judge may perform all of these actions even against the will of the litigants”; Darkei Moshe 12:4; Urim 12:7; Shevus Yaakov 3:144; Pnei Moshe on Yerushalmi Sanhedrin 1:1; Lechem Rav 87; Baiy Chayi C.M. 84

[3] See Smeh 12:9 “This is not considered to be cheating the side that rightfully would win the Din Torah as a litigant would rather compromise on some of the amount to the other party in order so there be peaceful relations between them.”; Mahariy Bruno 241;

[4] See Mahariy Bruno 241; Shut Maharam Mintz 101; Meirir Bava Kama 56a; Sefer Pesher Hapeshara p. 8 for many proofs and scenarios of cases

[5] See Michaber 12:2 “Just as the judge’s are warned against swaying the judgment of Din so too they are warned against swaying the compromise to one side”; Smeh 12:7 “as the verse [Devarim 16:20] states Tzedek Tzedek Tirdof which refers to both judgment of Din and Pesharah”; Radbaz 4:164; Toras Chaim 1:89; Teshuvos Vehanhagos 1:793

[6] Shut Shevus Yaakov 2:145; Pischeiy Teshuvah C.M. 12:3

[7] See Michaber 12:2 “Just as the judge’s are warned against swaying the judgment of Din so too they are warned against swaying the compromise to one side”; Michaber 12:6 “One who is being claimed for money that is in their possession (i.e., they are the muchzak) is forbidden to look for tricks or strategies to evade payment so that the claimant will desire to do a Pesharah and be Mochel on the rest.”; Derech Eidosecha p. 6 of the Tzadik of Dinov the Bnei Yissaschar “If the judges made a compromise, and the litigant knows that according to strict law he actually owed more, he does not fulfill his obligation in the eyes of Heaven until he returns to the other party everything that is due to him; and if he does not return it, it is considered theft in his hands. Now we will clarify the error of those judges who mislead the litigant and make compromises without proper understanding, imagining that they are performing a mitzvah. They rely on the statement of our Sages: ‘Just as it is a mitzvah to incline the law, so it is a mitzvah not to incline the compromise…’ From this they conclude that even in the simple case in which the litigant is unquestionably liable according to Torah law, without doubt and without requiring an oath, even in such a case, they should make compromise. In truth, there is no room for compromise. A judge who makes compromise in such a situation is acting improperly. Compromise applies only in matters that involve uncertainty—such as when the truth is not fully clarified except through evidence and oaths. In such cases, the judge may begin the process by suggesting that each side relinquish a small amount, and proceed in this manner. But those who follow crooked paths—recent innovations—interpret matters according to whatever seems good in their eyes, and they incline the compromise only from one side…””; Peshar Hapeshara ibid p. 24

[8] See Bava Basra 133b that such Dayanim who compromise 5/50 are called Dayanei Dechatzatza

[9] See Piskei Din Rabaniyim 11:261

[10] Tur 12 in name of Semag 107 and Yerushalmi Sanhedrin 1:1 in name of Rashbi