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Using Tactics to Strong-Arm a Person Into a Settlement to Avoid Bais Din

Rabbi Yosef Greenwald

Case: A former customer of mine is calling me to a Din Torah over several thousand dollars that I owe him. I know he doesn’t have conclusive proof of these debts, and I can easily deny their existence. Of course, I wouldn’t actually do that, but can I threaten that I will deny it in order to force him to come to a settlement?

Question: Can you employ tactics to push a claimant to a compromise?

Answer: The answer is no, doing so would be tantamount to theft.

The gemara in Bava Kama [40b] indicates that the owner of an ox that damaged someone would theoretically be allowed to hide it so as to avoid paying. [A shor tam that damaged only pays out of the actual value of the ox; if the ox is gone the owners do not have to pay.] Tosafos asks the following question, how could that possibly be allowed; hiding money that is owed is simply theft? Tosafos answer that the person does plan on paying for the damage. The Gemara means that he could use the possibility of evasion as a bargaining chip against the victim to gain a compromise.

Based on this answer, Maharshal records that people involved in a dispute would often rely on this Tosafos to employ various tactics to force their litigant to a compromise. He roundly condemns this practice, citing the Terumas Hadeshen who explains Tosafos to be citing a theoretical argument, not a practical one. Shiltai Hagiborim actually does seem to allow these practices somewhat, provided that there is no deceit involved. However, the Shulchan Aruch rules unequivocally that such “methodology” is prohibited and akin to theft.

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