1997/5758      

              Over the next few months we will focus on some of the issues concerning Batei Din in the realms of monetary and marital disputes.  God willing, we will conclude these discussions with an examination of the vital importance of having every couple sign a Halachically valid prenuptial agreement.  We will begin with a discussion of the importance of behaving Lifnim Mishurat Hadin, beyond the strict requirements of the law.  We will focus mostly on Talmudic usage and applications of this concept.

Introduction

              Rashi comments (on Bereishit 1:1) that only God's name !-&8*. appears in the first Perek of Bereishit.  Only in the second Perek does the name "YKVK" appear.  Rashi explains that God intended to create the world "with strict justice ("/$; %$*0)."  But when He saw that the world could not exist accordingly, Hashem presented "the divine aspect of mercy (/$; %9(/*.)" and coupled it up with /$; %$*0.

              We are obligated by the verse &%-,; "$9,*& to follow in His footsteps, and must therefore combine our sense of /$; %$*0 with our sense of /$; %9(/*..  If we follow only strict law the world cannot exist.

              An example of this is the teaching of Chazal in Pirkei Avot, -! %85$0 /-/$.  This roughly means that a rigid and intolerant pedagogue will not "make it" in the profession of Jewish education.

Talmudic Examples and Explanations

              Two examples of rabbinic behavior will illustrate how to act Lifnim Mishurat Hadin.  One example is a Gemara in Berachot 45b which speaks of the requirement of three men who eat together to make a Zimun.  The Gemara presents the rule that if two of the three men have complete their meal, the third must (as proper Derech Eretz - Rashi) stop and participate in a Zimun.  If only one person has finished his meal, the other two individuals are not required to interrupt their meal to accommodate the one individual who wishes to make a Zimun immediately.  Nevertheless, the Gemara relates that Rav Papa and a companion acted Lifnim Mishurat Hadin and interrupted their meal to allow Aba Mar Brei to recite the.

              Another example appears in Baba Metzia 83a.  The Gemara describes the following case (translated by Dr. Aaron Levine in "Economics and Jewish Law," p.28):

              Some porters [negligently (see Rashi and Maharsha)] broke a barrel of wine belonging to Rabbah Bar Bar Channah.  Thereupon he seized their garments; so they went and complained to Rav.  "Return their garment" he ordered.  "Is that the law," he inquired?  "Yes," he rejoined, "that you shall walk in the way of good people" (Mishlei 2:20).  Their garments having been returned, they observed, "We are poor men, have worked all day, and are hungry.  Are we to get nothing?"  "Go and pay them" he ordered.  "Is that the law," he asked?  "Yes," he rejoined, "and keep the path of the righteous" (Mishlei 2:21).

              Rashi explains that Rav's ruling was not strict law, but Lifnim Mishurat Hadin.

Importance of Lifnim Mishurat Hadin - Baba Metzia 30b

              The Talmud feels very strongly about the importance of a Beit Din ruling Lifnim Mishurat Hadin.  The Gemara in Baba Metzia 30b goes as far as to say that Jerusalem was destroyed because its courts ruled only according to strict justice, and not Lifnim Mishurat Hadin.  Tosafot (s.v. -!) points out a contradiction between this Gemara and the Gemara elsewhere (Yoma 9b) which explains that the destruction of the Beit Hamikdash was a result of Sinat Chinam (baseless hatred).  Tosafot answers that both the prevalence of the Sinat Chinam and the lack of judging Lifnim Mishurat Hadin were responsible for the destruction of the Temple.

              Rav Mordechai Willig (Beit Yitzchak 26:140) offers an alternate resolution to this contradiction.  He explains that Sinat Chinam arises because of the lack of acting Lifnim Mishurat Hadin.  People who are unwilling to compromise on certain issues will hate each other.

              Rav Willig laments that this is an all too prevalent problem.  He writes that this constitutes Sinat Chinam even if the person making the demands is, objectively speaking, actually correct.  Usually, both sides in a dispute are somewhat correct in their arguments.  As such, all parties should act Lifnim Mishurat Hadin.

Source of Lifnim Mishurat Hadin - Ramban

              The Gemara in Baba Metzia 30b presents Devarim 6:18 as the source for the importance of acting Lifnim Mishurat Hadin.  This Pasuk states, &3:*; %*:9 &%)&" "3*1* %', "you should do the straight and the good in the eyes of God."  Ramban explains:

              The intention of this Pasuk is to teach that while we must keep God's specific laws, we must also institute what is "the good and straight" in those areas which God did not issue any specific rules.  This is a great mater because it is impossible for the Torah to regulate every area of human behavior on both an individual and a communal level.  After the Torah presents a number of general ethical commands such as not to gossip, not to take revenge, it commands us to do good and right in all areas.

              Rav Yitzchak Cohen of Yeshiva University, one of the generation's great Baalei Mussar, once commented to me that everyone should read this Ramban dozens of times.

              The Ramban gives a number of examples.  A person should speak kindly and gently with all people and should have a good name.  Also, one should follow the Talmudic rule of "9 /79! (Baba Metzia 108a), that when selling property, one's neighbor automatically has the right to first refusal (see Dr. Aaron Levine's "Economics and Jewish Law," pp. 32-36 for a review of the parameters of this issue).

              A related principle is that of ,&5*0 3- /$; 2$&. (Ketuvot 103a), which calls on the Beit Din to coerce an individual into not acting like a resident of Sedom.  One is guilty of mimicking the evil behavior of Sodomites if he refuses to allow another to infringe upon his right, even though such infringement generates no loss for him and at the same time would have allowed the other person to secure a benefit or avoid a loss.  An example of this is a ruling of the Radvaz (Teshuvot, I:146) who dismissed a landlord's objection to allowing his tenant to make improvements in a rented apartment.  A landlord's refusal to permit a tenant to improve his living quarters is sodomite behavior because it causes no loss to the landlord.  There is no reason to withhold permission for the tenant to make improvements which will only enhance the value of the property.

Modern Applications - Severance Pay and Alimony

              Halacha does not specifically provide for severance pay or alimony.  Yet some twentieth century authorities have written that under certain circumstances, these payments should be made.  Both Rav Benzion Uzziel (the eminent Sephardic Chief Rabbi at the time of the establishment of Medinat Yisrael) and a (*5% Beit Din (Piskei Din Rabaniyim Vol.3 p.95 - the record of decisions rendered by Israeli Batei Din) found it appropriate for an employer to pay severance pay in case of an extended period out of work, impoverishment of the worker, or circumstances of dismissal.  Rav Yehuda Leib Graubart (Teshuvot Chavalim Bineimim, Even Haezer 55), an important Posek who served as a Rav in Toronto in the early twentieth century, presents similar considerations regarding alimony.

Coercing Lifnim Mishurat Hadin

              The Mordechai (Baba Metzia 257) cites a number of authorities who assert that a Beit Din may coerce a litigant to act Lifnim Mishurat Hadin.  However, the Beit Yosef (Choshen Mishpat 12 s.v. ,;" 9"*1& *9&(.) cites opinions which rule that a Beit Din may not coerce litigants to act Lifnim Mishurat Hadin.  The Rema (C.M. 12:2) cites both opinions without ruling which opinion is normative.  The Aruch Hashulchan (C.M. 12:2), though, makes an important point.  He writes:

              This disagreement is only if Beit Din may literally coerce a litigant to act Lifnim Mishurat Hadin.  However, all agree that a Beit Din may "verbally coerce" a litigant to act Lifnim Mishurat Hadin by telling him that he must act ethically, by rebuking him, and by conjuring up feelings of kindness towards his adversary.

Conclusion

              The great importance of acting Lifnim Mishurat Hadin is clear.  In fact, the Gemara (Berachot 7a) makes the startling statement that God prays that He should act Lifnim Mishurat Hadin.

              For further discussions of this issue, see Rav Aharon Lichtenstein's seminal essay "Does Jewish Tradition Recognize an Ethic Independent of Halacha?" published in "Contemporary Jewish Ethics."  Also see Rabbi Walter Wurzberger's work "Ethics of Responsibility," and Dr. David Shatz's review of this book (Tradition, Winter 1996 pp.74-95).