My father-in-law, a successful businessman with a law degree, would say that he studied the law in order to stay out of the courts.

What is the purpose of the law courts? Is it to dispense perfect justice or is it to restore peace between the litigants? The debate is ancient.

Rabbi Eliezer maintains that the goal of the Beit Din, Jewish court of law, is to achieve perfect justice at all costs – “יקוב הדין את ההר — Yikov Hadin et Hahar.” There is no place for compromise in court, argues Rabbi Eliezer. Any judge who brokers a compromise is a sinner.

Rabbi Yehoshua disagrees. It is a mitzvah, a good thing, for a judge to broker a compromise. The court’s purpose is not merely to seek – משפט — justice (mishpat) but also to restore שלום —shalom (peace) among the litigants.

King David was loved because he dispensed – משפט וצדקה — mishpat u’tzedakah, judgment and charity, to the people. But isn’t judgment and charity an oxymoron? No, answers the Talmud. Judgment and charity co-exist in compromise. The best judgment is פשרה — compromise.

The Halacha, the law, is in accordance with the opinion of Rabbi Yehoshua. A judge must open the proceedings by urging the litigants to settle the dispute by way of compromise.

But in order to be effective, the compromise must be done in the proper Halachic way. In essence, a compromise is a sale. Both parties are selling to the other their right to perfect justice in return for a quick, inexpensive and peaceful solution. Like any other sale in Jewish law, this one too must be perfected by a מעשה קנין— Ma’aseh Kinyan, an overt act, which gives tangible expression to the mental decision to transfer property or other rights.

A Ma’aseh Kinyan needed to effect a compromise can take the form of a קנין סודר -—Kinyan Sudar, a legal form of symbolic acquisition, performed by the transfer of some article, such as a handkerchief, between the litigants. The Ma’aseh Kinyan can also be done by means of a שטר —shtar, an unconditional promissory note, or other undertaking or admission written by each litigant in favor of the other in the presence of attesting witnesses.

A compromise written in the form of a conditional promise, however, such as, “I will abandon my claim if you pay me $50,000,” is not deemed a shtar and is ineffective unless accompanied by a Ma’aseh Kinyan, such as a Kinyan Sudar.

Why, one might ask, is a compromise compared to a sale and not to מחילה — a waiver? A waiver does not require a Ma’aseh Kinyan. Rav Ovadiah Yosef explains that a waiver is an entirely voluntary act initiated by the person himself outside the context of litigation. A compromise, however, is initiated by the court within the context of litigation. Accordingly, the litigant may feel pressured into agreeing to the compromise. A Ma’aseh Kinyan is therefore required to strengthen his resolve.

According to the Aruch Hashulchan, a compromise can be enforced if the litigants shook hands on it, even though shaking hands is not a Ma’aseh Kinyan.^.

A compromise in Beit Din must be reached before judgment is rendered. Once the judgment is rendered, the judges themselves are not permitted to broker a compromise; other mediators,  however, may do so.

The litigants must carry out the compromise as promptly as they would satisfy a judgment, or else the compromise will expire.

There are circumstances under which a compromise, even if fortified by a Ma’aseh Kinyan, would be ineffective. This will occur when the Beit Din becomes convinced that the compromise was induced by fraud or extracted under duress. Such may be the case, for example, if one litigant threatened to inform the income tax authorities about the other litigant’s misconduct in an unrelated matter unless he agrees to a compromise.

In addition, a litigant who entered into a compromise may revoke it. Similarly, if following the compromise the other litigant admitted the claim, the compromise would be revoked.

Like secular law, the Halacha accepts that every person has the right to his day in court and nobody can be forced to compromise. But the Halacha also realizes that a day in court could turn into months or years and become a crippling financial burden.

At the end of the day, human courts are a lottery, כי המשפט לאלהים הוא” — because infallible justice belongs to God.”  So, compromise is not a bad deal.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by emailing Raphael at [email protected].