Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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Choice of the Judges

The law was taught (Kesuvos 94) regarding a case of someone who 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.

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