within the Halakhic Judicial System:
Rav Moshe Taragin
The Role of Peshara
within the Halakhic Judicial System:
by Rav Moshe Taragin
Page V
A final issue for consideration is the gemara's
deliberation (6a) as to whether peshara must be executed by
performing a kinyan sudar (handkerchief exchange). Clearly if
peshara is a form of court rendered justice it would be
difficult to justify the need for a kinyan. Standard pesak
issued by Beit Din is mandatory even without the performance
of a kinyan. If however peshara is a court brokered compromise
hammered out between the two parties we would comprehend the
role of a kinyan. This mutual compromise entails reciprocal
waiving of claims (each feels that he is 100% correct and
deserves the full amount; by agreeing to compromise they are
effectively waiving '50%' of their claim). Such a waiver -
known in halakha as 'mechila' - constitutes a halakhic
transaction which, like other transactions of property or
value, requires a kinyan. Ultimately, the gemara's questioning
whether peshara requires a kinyan might in fact be the
gemara's questioning whether peshara is a pseudo form of
justice or a court mediated compromise between individual
citizens.
The basis of peshara and its relationship to classic din might influence the method by which peshara is implemented. Such questions might include: the amount of judges who process peshara, whether peshara can be forcibly imposed, whether the convention of following the majority opinion applies to peshara, the degree of deliberation required to arrive at halakhic peshara, the point at which peshara ceases to be an option, and finally whether peshara must be cemented through a kinyan.
METHODOLOGICAL POINTS:
1) Any new halakha must be scrutinized based upon conventional models. Is it a new model or a slight variation of a familiar one.....
2) Often this can be glimpsed from the pesukim which establish the halakha and the degree to which the pasuk equates the new halakha with the conventional one. Of course pesukim should always be inspected to help determine the essence of a halakha.
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