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Thought for the Day: Beis Din and Hashgacha

I have a chavrusa in Mishlei with the commentary of the Gr"a.  We learn after davening when there is even five minutes between the end of davening and our previous obligations, such as work and carpool.  As you might imagine, we are both obviously more interested in quality than quantity.  Some verses are easier to grasp than others, sometime the we feel enlightened by the Gr"a's explanation, other times we feel more inspired by the sheer brilliance of the Gr"a and hope to someday reach a point in our wisdom where we have at least a clue what he is talking about.  There is a third category that arises only rarely: the exalted words of King Solomon seem to express a very simple and obvious idea -- that's bad; it means we really didn't get it -- worse, though, is when the explanation of the Gr"a also seems trite and obvious -- then we know we are really missing something important and just barely out of grasp.  Which is what happened today.

Mishlei 18:18: מִדְיָנִים, יַשְׁבִּית הַגּוֹרָל;    וּבֵין עֲצוּמִים יַפְרִיד/A lottery settles monetary grievances and causes the litigants to retreat.  The גּוֹרָל/lottery has a hallowed place in Jewish history (even has it's own celebration; Purim) and always indicates reliance on the hidden hashgacha pratis/Divine Providence of HaShem working behind the scenes and running the show in a manner that seems completely natural.  Given that, the verse as explained by the Gr"a seems to say: if you just accept that HaShem runs the world, there is nothing to fight about.  Umm... yes; but, but... therefore what?  Besides, which, we have a whole Choshen Mishpat and Beis Din system to resolve disputes.  That's how Torah Jews settle monetary grievances; not with a lottery!  Sigh... what can one do?  So we left the matter.

Since I have today off (it being an American holiday dedicated to the idea that saying thank you is a once a year obligation, and only then if you have stuff yourself beyond capacity after which you watch some of the best 15 second skits of the year interrupted by grown men fighting over a ball), so I had the opportunity to attend the Simcha Davis Legal Holiday Learning Program; today's topic being Navigating Personal & Business Disputes by Rabbi Ari Marburger (a dayan from Lakewood).  Since not understanding a verse in Mishlei is hardly fodder for an entire TftD; I'll fill in with some things I learned from the shiur.

R' Marburger began by noting that we all run off to work each day after davening.  We try to squeeze in a little learning here and there, but clearly (so it seems) making a living come first, and we'll try to get a little spirituality in those few free moments we have.  However, when Jews have the day off and choose to use that time to come to a shiur, it proves just the opposite.  Our main focus is the learning, as evidenced by the fact that when we are not faced with the pressures of needing to eat, put a roof over our heads, and pay tuition, we run to a shiur.  That is to say, we are stuffing making a parnassa into the free time we have between learning and davening; it just takes a lot of time to make that parnassa, so things look backwards.

R' Marburger spent most of the time on the process of selecting a Beis Din and what to expect when you get there.  Why don't we all know that already?  R' Marburger noted that Batei Dinim do not advertise; all that we know about them comes from word of mouth.  Word of mouth from whom?  The litigants who use the system; half of which are guaranteed to be unhappy (because they lost) and the other half may also be unhappy (since they didn't win enough).  Not a recipe for good customer relations, but a darned good recipe for spreading misinformation.

Here's some highlights.  First, there is choosing the Beis Din.  Most cities do not have a single sitting Beis Din, so choosing which Beis Din is itself a litigious process.  (The process is to give preference to the choice of the defendant.)  Suppose they can't find agreement, then there is a process where one side chooses a dayan, the other side chooses a dayan, then the two dayanim choose the third.  Simple, right?  Well... there aren't that many dayanim, so now some are starting to charge for their services.  There are halachic justifications, but it certainly muddies the works.

Now you are about to enter Beis Din.  They will want you to sign two documents. One, to accept the ruling as a binding arbitration.  Beis Din has no way to enforce their decision, so that document ensures they are not wasting their time.  Once that document is signed, the decision can be enforced by a civil judge.  Second document is a statement that the litigants either want strict letter of the law, or they are willing to accept a פשרה.  If either wants strict letter of the law, of course, he cannot be forced to accept a פשרה.

Two interesting things about פשרה.  First, פשרה does not mean compromise (nor, for that matter, "half measure"; despite what Google Translate thinks).  פשרה does mean a fair settlement that will preserve and promote שלום (fine... "peace" is not a bad translation in this context).  For example, suppose the claimant, Yehuda, owns a big, successful business and is looking to be paid and outstanding debt of $10,000 from Shmuel, a small business owner with whom he has been doing business for many years.  Even where the claimant is 100% in the right, the פשרה could be for the small business owner to pay $3,000.  Why?  More than that that could drive Shmuel into bankruptcy;  Shmuel would lose his parnassa, but Yehuda also loses a customer... and perhaps a friend. The פשרה in that case (and you can imagine many such scenarios) actually achieves the goal of justice more than the bare, strict letter of the law.

Let's go back to the verse in Mishlei... the whole Choshen Mishpat and Beis Din system is, apparently, not a simple, cut and dried, mechanical process.  It is a process that fundamentally depends on Da'as Torah and Siyata d'Shmaya -- two of the hallmarks of Hashgacha Pratis and Emuna.  So that's what Shlomo HaMelech and the Gr"a were explaining.  In that area of Jewish law-- torts and damages -- that seems to be the most "non-religious"/"most practical" area of all; that is where emuna and belief that HaShem runs the world and all will be just are most necessary.  Moreover, after all is said and done, after all the tinkering with an imprecise and complicated process is finished; it is precisely the complete resignation to the גּוֹרָל that really quells the fight and allows the litigants to part as friends.

Wow... good thing I just happened to go that particular shiur after learning that particular verse.  What are the odds?  It's like winning the lottery.


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