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Shabbat Parashat Korach | 5768

A Look Back at the Last Years Piskei Din

P'ninat Mishpat



(based on Halacha Psuka, vol. 45)

 

Vol. 45 of Halacha Psuka is dedicated to looking back at the past year, both regarding joint action and decisions of the cooperative batei din (Mishpat V’Halacha B’Yisrael, the Gazit network, and Mishp’tei Eretz) and in summarizing some fundamental principles found in the piskei din that were presented. We will now share the latter. The foregoing does not necessarily represent the opinion of the specific batei din involved in the cooperative effort but presents opinions of various batei din over the decades. We will break up the principles based on topics.

A. P’shara (Compromise)

The Obligation of a Litigant to Allow a Beit Din to Rule Based on P’shara - There is a difference of opinion on whether beit din can force parties to sign an arbitration agreement that allows either din (the strict law) or p’shara. In practice, standard arbitration agreements include permission to beit din to rule either for din or p’shara. Under certain circumstances, beit din may make a p’shara between the litigants even if they did not sign in the arbitration agreement a clause that authorizes it.

Beit Din’s Authority Within the Framework of P’shara - Fundamentally, the legal authority that litigants furnish beit din when they authorize p’shara is broad. In practice, beit din uses it only in the following cases:

1.    Where there is halachic doubt.

2.    In place of administering an oath.

3.    When the straightforward din causes a loss to both sides.

4.    When p’shara brings the argument to a rest better than the din.

In practice, Mishpat V’Halacha B’Yisrael and the Gazit network do not use p’shara extensively, even in regard to the first two cases.

B. The Effectiveness of Contracts and Obligations

Signing a Contract Without Understanding it - Fundamentally, one who signs a contract is bound by what he signs even if he did not read it. However, we saw piskei din that posited that when one thought that he was signing something else, his signature does not obligate him.

Unreasonable Clauses in a Contract - A contract that contains an unreasonable clause requires a special kinyan to make it effective. For example, if one is said to rent an apartment forever, this is an unreasonable obligation. When the simple reading of a contract’s clause renders it to contain such an obligation, beit din should prefer to interpret the contract according to the general spirit of the contract, thereby producing a reasonable obligation.

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Dedication

This edition of Hemdat Yamim is dedicated in loving memory of

R ' Meir ben Yechezkel Shraga Brachfeld

o.b.m

 Hemdat Yamim is endowed by Les & Ethel Sutker of Chicago, Illinois in loving memory of

Max and Mary Sutker

 and Louis and Lillian Klein, z”l.

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