Translation:Shulchan Aruch/Choshen Mishpat/12
Paragraph 1- When two parties come to court and one is easygoing and one is tough, before the claims have been heard or even if they have been heard but the judge does not know which way the ruling leans towards, a judge may say I do not want to process this case lest the judge finds the tough party liable and such party will pursue the judge. Once he has heard their claims and knows which way the ruling leans towards, he is not permitted to say he does not want to process the case. If the judge has been appointed by the public, he must hear the case. Similarly, if they were both tough parties, the judge must process the case. There are those that write that we nonetheless have the custom to not protest those that sin because there is a danger that they hand us over to the authorities.
Paragraph 2- It is a mitzvah to ask the parties up front if they prefer din or pshara. If they want pshara, we will make a pshara between them. Just as one is commanded not to twist din, so too is he commanded not to twist pshara to one party over the other. Any court that consistently performs pshara is praiseworthy. This that there is a mitzvah of pshara is only true before the conclusion of the case, even if he has heard the parties’ claims already and knows whom the case leans towards. Once the case has been concluded, however, and he says this party is innocent and this party is guilty, he is not permitted to make a pshara between them. An individual who is not a judge, however, is permitted to make a pshara between them, but not as an official case of law. If the court has obligated a party to take an oath, the court may make a pshara to avoid the punishment of an oath. A court cannot force a party to go beyond the letter of the law even if they feel it is appropriate. Some disagree.
Paragraph 3- A court has the right to be liberal with orphan money outside the strict law in order to save them from quarreling.
Paragraph 4- A court has the power to make decrees and place a cherem in order for the pshara to last and not allow the orphans to object when they get older.
Paragraph 5- A judge has the power to rule like a pshara in a situation where he cannot definitively determine the issue. He is not permitted to conclude the case without a ruling.
Paragraph 6- One who has a claim brought against him for money that he possesses is not permitted to search for ways to avoid paying in order to force the other party to agree to pshara and waive the rest. If he does so he will not fulfill his heavenly obligations until he pays back what rightfully belongs to the other party.
Paragraph 7- Even if the parties agree in court to pshara they can retract so long as they have not made a kinyan because pshara requires a kinyan, even with three judges. Once they have made a kinyan, however, they can no longer retract, even with a solo judge. Some say this only applies where there are at least two judges. A kinyan is not the only mechanism that would work. The same would apply if he gave a document on it or any other method of kinyan. There are those that say that when one accepts a kinyan on pshara he must give possession of the item so that it is not a kinyan on words as will be explained in the beginning of Siman 203.
Paragraph 8- A waiver does not require a kinyan. See later Siman 241.
Paragraph 9- If both parties agreed on pashranim with a kinyan and a 50 fine, one party cannot say after the pshara that I will pay the fine but not fulfill the pshara.
Paragraph 10- If one of the parties claims that the pashranim did not provide a set time to fulfill his requirement and that he can do it whenever he chooses, his claim is meaningless and he must do it immediately.
Paragraph 11- If Reuven threatened to hand Shimon over to the authorities if he does not give him the money that they were in court over, which Reuven had no rights to by law, and they made a pshara with a kinyan and a nullification of modaah, Shimon is able to retract.
Paragraph 12- Two people that had a dispute over a building on land and made a pshara without a kinyan, once they accepted the ruling and each party built a little in accordance with the ruling of the pashranim, they can no longer retract.
Paragraph 13- In the case of a pshara without a kinyan, if the defendant accepted their decree and signed a document in the form of an admission or obligation, he can no longer retract.
Paragraph 14- If one denies a deposit and enters into a pshara arrangement and the plaintiff forgives the defendant and subsequently discovers witnesses, he is able to retract.
Paragraph 15- The same applies to someone who did pshara because he did not have proof or a document and he later discovers it.
Paragraph 16- The rules of a pshara in error will be explained in Siman 25.
Paragraph 17- If a plaintiff is obligated to swear to his counterparty and the plaintiff asks the defendant to waive the oath and the defendant responds “it should be like you said,” the defendant cannot retract.
Paragraph 18- If there are numerous pashranim, some say we do not follow the majority and they all must come to a consensus.
Paragraph 19- In a case of pshara without a kinyan, if the parties gave collateral to the pasharanim, it is of no effect unless they said it is not an asmachta or that it takes effect now. If the collateral was a debt, it is of no effect.
Paragraph 20- Judges must try with all their ability to avoid judging via strict torah law.