The Role of Peshara
within the Halakhic Judicial System:
by Rav Moshe Taragin

Page IV

The Tosafot haRosh raises another issue pertaining to the method of implementing peshara. Must the judges actually investigate the specific case at hand, scrutinize the evidence, and formulate some form of adjusted compromise based upon the particular facts of this dispute; or does peshara entail a simple equitable division which awards payment to both parties - a general adjustment which bears no resemblance to the specific facts? This question as well could potentially indicate peshara's proximity to the world of 'din'. If peshara itself is a form of 'din' we might expect it to be patterned after 'din' and it would require some degree of deliberation and consideration of the testimony. If, however, peshara is an extralegal form of arbitration we would certainly not demand that it be patterned after the model of classic 'din' and in the interests of pursuing harmony we might prefer that it take the shape of a general mediated compromise.
Interestingly enough, the Rosh maintains that both forms of peshara exist. In effect, the Rosh maintains that Halakha affords two models of peshara - one akin to 'din' which entails some attempt to base the compromise upon the facts, and another distinct form which strikes a general compromise acceptable to all even if it in no way mirrors the facts.
At which point may the parties opt for peshara? What if Beit Din began to process the suit as a classic litigation and subsequently the parties declare their desire to process their case as peshara? The gemara asserts that once 'gemar din' - a verdict - has been rendered, peshara cannot be introduced (based upon Rashi's interpretation of this gemara. See Tosafot who offers a differing interpretation). Why is peshara precluded at this stage? Possibly because peshara ITSELF represents a halakhic verdict; once the verdict is rendered a second verdict cannot be pursued (see the Bach Choshen Mishpat 12 - who clarifies this concern of not issuing successive verdicts). If however we viewed peshara as merely an extralegal and mutual agreement to compromise and to waive the perspective claims, one might wonder whether the very fact that a formal verdict were issued would preclude an attempt to pursue a compromise of this nature.

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