Monday, December 03, 2007

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.