11 Feb PARSHAS YISRO: THE WINNER IN A COURT CASE, ALSO LOSES

Our Sages teach
that the reason why
Yisro merited to
have a parsha in
the Torah named
for him was
because of the
counsel that he gave to his son-in- law,
Moshe. People lined up for Moshe to
adjudicate their civil disputes. Moshe
was busy hearing people’s disputes the
entire day. Yisro saw that this was very
draining on Moshe’s time and energy. He
gave his famous advice to set up a
hierarchical system of courts. He
instructed Moshe “You shall make
known to them the path in which they
should go and the deeds that they should
do” [Shemos 18:20].
The Talmud [Bava Metzia 30b] derives
two types of instruction from this pasuk.
“The path in which they should go” refers
to the letter of the law and “the deeds that
they should do” refers to action beyond

the letter of the law (lifnim m’shuras
hadin).
The concept of lifnim m’shuras hadin is
that even in a situation where a person
could take another person to court to
enforce his monetary legal rights and win
— he should still be prepared to
compromise more than the law would
require. He should not always enforce his
rights.
The Gemara there says in the name of
Rabbi Yochanan that Jerusalem was
destroyed because people insisted on
enforcing their rights based on Torah law,
rather than accepting the concept of
going “beyond the letter of the law”.
This is a rather frightening Gemara. The
very term “beyond the letter of the law”
seems to imply that I am fully within my
rights to insist on the letter of the law —
to take my adversary to a ‘Din Torah’ and
to demand justice. How could it be, then,
that Jerusalem was destroyed because
people insisted on their legal rights?

The Chofetz Chaim says that Yisro’s
advice to Moshe went beyond just setting
up a hierarchical court system. Part of his
advice was to teach the Jewish people
that there exists a concept of ‘lifnim
m’shuras hadin’. They were to be
instructed that it is not always necessary
or even appropriate to insist upon one’s
rights. There is a place for and a value in
compromise and non- judicial solutions
to disputes. That, in and of itself, was part
of the solution of lightening the judicial
burden. People would not always be
running to court with every argument.
They would start settling by compromise,
outside of court.
In practice, when two people come
before a Beis Din [Jewish court], the first
thing that the court advises them is to
settle via compromise (peshara) rather
than via a court case (din).
One of the commentaries on Shulchan
Aruch, the Sem”ah, questions why the
judges are allowed to implement such a
procedure. How can the judge, in good
conscience, advise a party to settle via
compromise when he feels that one of
the sides is 100 percent correct, and
entitled to full compensation or
restitution?
Normally one is forbidden to give
someone bad advice – be it spiritual or
financial. This is included in the
prohibition of not placing a stumbling
block in front of a blind person. So if
someone has an ironclad contract and
is fully entitled to 100 percent of his
claim, why is it not considered ‘bad
advice’ on the part of the judges to
suggest that he settle via compromise?
The Sem”ah answers that it is never
bad advice to suggest compromise.
Even though from a financial
perspective, one party may be short
changed, the long-term advantage of
emerging from the dispute as friends
rather than enemies outweighs any
financial loss. One might win the case
and receive his money, but buy an
enemy for the rest of his life. Therefore,
compromise is GOOD advice.
Good, you’ll nail him. You’ll be able to
take him to the cleaners. But then try
sitting at the same table with him at a
wedding. Try being in the same room

with him. It will never be the same again.
When two people go to court at each
other’s throats, the winner might win —
but he also loses. That is the way people
are. They do not forget.
This is what the Sem”ah is teaching.
“Yes, you might win your case — but
you will acquire an enemy for life. I’m
giving you good advice: Compromise.”
This was also the advice that Yisro gave
to Moshe. Lighten the load through
compromise. This is good advice for
every judge.
Rav Pam zt”l commented that now we
can understand the Gemara that says
Jerusalem was destroyed because they
insisted on adjudicating by Torah law,
rather than going “beyond the letter of
the law”. We had asked how that is
possible. “It’s not fair! Don’t I have my
rights to a Din Torah?”
The answer is that this Gemara
complements another Gemara [Yoma 9b]
which says that Jerusalem was destroyed
because of unreasoned hatred (sinas
chinam). How does one acquire sinas
chinam? Sinas chinam results from a
society where people act in a “dog eat
dog” manner. They are at each other’s
throats and are constantly taking each
other to court. It is possible for 10 people
seated together at a wedding to refuse to
talk to one another because they all lost
court cases with each other.
When the Gemara speaks about a society
that insists on Dinei Torah rather than
compromise and lifnim m’shuras hadin,
it is talking about a climate that breeds
unreasoned hatred. It was not the lack of
lifnim m’shuras hadin per say, but it was
the result of such a society — namely one
filled with baseless hatred — that caused
the destruction of Jerusalem.