Monday, December 22, 2008

Discretion of the Judges - Kiddushin 74

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The braisa continues: A judge is believed to say the following: “I found in favor of this person, and I found against this person.” This is only true if the litigants are still standing before him (for then, he is still responsible to remember how he ruled); otherwise, he is not believed.

The Gemora asks: But let us check to see who is holding the document in which it is written that the verdict was in his favor?

The Gemora answers: The braisa is referring to a case where the document was ripped up.

The Gemora asks: Why don’t we just rejudge the case?

The Gemora answers: The braisa is referring to a case where it was decided based upon “the choice of the judges” (and we therefore are concerned that he will not reach the same verdict the second time).

The Gemora in Kesuvos (85a) cites the following dispute: If a person sold the same field to two people on the same day, Rav says they should split the field, and Shmuel says the law is the choice of the judges (they should decide who to give it to).

The Rishonim disagree as to the method that the judges should use to give one of the claimants the entire field. Rashi explains that “the choice of the judges” means that the judges choose to whom the property in question should be given by attempting to determine, based on logical considerations, to whom the seller would have preferred to give the field.

Tosfos argues with Rashi and maintains that “the choice of the judges” means that the judges give the field to whomever they please. They need not base their decision on whom they think the seller preferred, but rather, they base their decision on whatever considerations they deem appropriate, such as which of the two claimants needs the property more, or which one is a Torah scholar.

The Gemora maintains, at this point, that in general, it is preferable to resolve the case with “the choice of the judges” rather than to split the property, because by using this method, there is at least a possibility that the correct person will receive the entire field. Therefore, according to Shmuel, the judges give the entire field to one of the two claimants.

Kollel Iyun HaDaf discusses why Rav would disagree and hold that the property is divided because of the witnesses’ signatures.