ל׳ בשבט ה׳תשע״ז (February 26, 2017)

Bava Batra 35a-b: The Discretion of the Judges

What should the court do in a civil case where the evidence does not allow for a clear-cut decision?

The Gemara on today’s daf raises the case of two contracts that have the same date, and there is no way of telling which one was written first. Both litigants claim that they bought the field and that it belongs to them. In such a situation, Rav says yaḥloku – they should divide the field between them; Shmuel rules shudda d’dayanei – it is left to the discretion of the judges.

Understanding the ruling of shudda d’dayanei is subject to different interpretations by the commentaries.

Rashi and the Rashbam explain that shudda d’dayanei means that the judges must do their utmost to determine which one of the two claimants is most likely right, and the property should be given to him. In our case, where the contracts seem to carry equal weight, the court will need to investigate which one the seller was friendly with and did more business with. Most of the rishonim, however, view shudda d’dayanei as power given to the court to make any decision that it chooses; they can give it to whichever litigant that they want to – although Tosafot point out that they cannot take a bribe from one side to decide in his favor. This appears to be the position of the Talmud Yerushalmi on this subject, as well.

Another approach to shudda d’dayanei appears in the Ge’onic responsa, which interprets it to mean that the judges should make a peshara – a compromise – which is also a reasonable method of dealing with a case where no clear decision can be reached.

Rabbeinu Ḥananel brings a tradition that shudda d’dayanei can only be applied in cases of disputes over land, but Tosafot disagree, and prove that it can be done in any civil case.

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