Kesubos 94 – Keep the Peace


yehoshua-bermanRami bar Chama and Mar Ukva bar Chama. Two of the big names in Shas. We can only imagine what type of zechusim their parents must have had to merit having two such sons. It’s important to keep that in mind when learning through the story of how their mother apportioned her property to her children. One fine morning, she wrote all her properties over to her son Rami, and later that day she wrote all her properties over to her son Mar Ukva. One cannot help but wonder why she did such a thing. Did she have second thoughts? Was she perhaps very old and forgot what she had already done? We really don’t know because the Gemara doesn’t disclose that part to us.

What it does tell us is that both Rami and Mar Ukva respectively went to a Rav for a psak as to what to do. Rami went to Rav Sheishes, and a bit later Mar Ukva went to Rav Nachman. Rav Sheishes paskened that the properties belong to Rami and Rav Nachman paskened that the properties belong to Mar Ukva. Not good. So, Rav Sheishes went to Rav Nachman to work it out. He said to Rav Nachman, “Why did you do that?” Rav Nachman responded with his own, “And why did you pasken as you did?”

“Because Rami’s shtar preceded that of his brother.”

“Do we live in Yerushalayim where they write the time of day in the shtar?”

“Ok, so what was your reasoning to pasken as you did?”

“I carried out a shudah d’daynei, a Beis Din appraisal of to whom it makes the most sense to award the properties.”

“Ok, in that case, let my psak – which preceded yours – also be on the basis of shudah d’daynei!”

“First of all, I am a dayan and you are not a dayan. Furthermore, your psak was not initially based on shudah d’daynei (but on a basis that does not apply here -Rashi-).”

And that was that.

From this maaseh, Tosafos learns that shudah d’daynei can only be executed by a dayan mumcheh. After all, Rav Sheishes was a giant talmid chacham and he still was not empowered to do so.

From the way Tosafos says it, it doesn’t sound as though Rav Nachman was necessarily a greater talmid chacham than Rav Sheishes. From Rashi, as well, the implication is that it was a more a matter of technical authorization. Rav Nachman had official sanction to adjudicate dinei Torah from the house of the Nasi and the Yeshiva, whereas Rav Sheishes did not. The question, though, of course is why is it that which makes all the difference specifically regarding shudah d’daynei?

There are two thoughts that come to mind. Perhaps one of them is correct. According to Rashi, shudah d’daynei means that it is up to Beis Din to surmise which one of these people most probably is the one whom the giver really wanted to have this gift. It is a matter of assessing to whom the mother felt closer, and therefore to whom she is more likely to have really wanted to give her properties. Tosafos (85b) argues and holds that it has nothing to do with trying to plumb the depths of the giver’s mind; rather, it is a form of extralegal power that Beis Din has – in the absence of any statutorily licit manner to settle the case – to award the properties to whomever they deem more worthy. Since there is no way to be able to settle the case on the basis of the laws that govern such situations, Beis Din is allowed to arbitrarily choose who wins.

Either way you look at it, shudah d’daynei is a mechanism that stands outside of the normal framework of the din. Therefore, only a dayan who carries official, expert sanction is empowered to employ this tool. It requires a degree of sensitivity for subtlety of psak that goes over and beyond the standard form of horaah (and even regular horaah is exceedingly complex and difficult). A subtlety that possibly may only belong to someone who is not just a dayan, but the most top-level, expert dayan. Another possibility could be that we cannot expect the litigants to accept such extralegal arbitration unless it is coming from the highest authority. Otherwise, we may not be able to fault the loser were he to refrain from following the psak.

In the case of the two brothers, Rami bar Chama and Mar Ukva bar Chama, it is clear that it was a bit of a sticky situation in terms of how it evolved. Equally clear, though, is that they would both accept whatever conclusion Rav Sheishes and Rav Nachman would come out with in the end. Rav Sheishes was not willing to naively nullify his opinion before that of Rav Nachman; however, when he heard Rav Nachman’s reasoning he accepted it and the case was settled.

The fact that all the individuals involved in this situation were Gedolei Torah certainly didn’t hurt in smoothing out what otherwise could have been a very unfavorable predicament. All too often, families are torn asunder by these types of developments. There is a yerusha – or some form of estate planning – and not everyone feels that they were given their fair share. Perhaps owing to a bit of ambiguity. It can happen in family businesses as well. As a wise man once put it, “In every pie there’s always going to be no more than 100%. If between all the players involved you add up to about 110% when you figure in what each one feels he deserves, you can work it out. But if the ‘I deserve x’ factor adds up to a total of 150%, you’ve got a serious problem; and the chances of the group staying together in the long run are not good at all.”

An exacerbating factor that can make such problems practically intractable – and which also happens to be a major bane of Batei Din across the globe – is when one or both of the disputants refuse to accept he psak of the Beis Din, and try to have it overturned by going to another Beis Din (or worse). On a very practical level, therefore, in addition to cultivating an attitude that resolution of such issues belongs to Beis Din, it is extremely advisable to make a habit of always including an arbitration clause in any and every business partnership or transaction. The clause should unequivocally state which Beis Din will be empowered to resolve any and all disagreements relating to the matter at hand, and that those decisions will be fully binding.

People are sometimes put off by even the mere mention of things like Beis Din and arbitration. “What am I,” they may react, “a baal machlokes that I need to start talking about Beis Din and arbitration?!” But the truth is, that the midah of din is so often the very tool that serves the goal of keeping the peace. Quite often, those people who don’t want to go to a din Torah for fear of coming across as a baal machlokes are the ones who wind up engendering terrible, protracted machlokes. Machlokes that can chalila tear apart friends and family. For good. Recognizing, though, and accepting from the outset, that disagreements are likely and almost inevitable, and that the only real way to properly deal with such eventualities is by adopting the absolute authority of Beis Din – and clearly delineating and agreeing to precisely which Beis Din – is the way that families and friends can have the best insurance plan for a long and lasting shalom.

Rabbi Yehoshua Berman serves as the Rosh Kollel of Kollel Reshet HaDaf in Ramat Beit Shemesh, Israel. In addition to having authored Reflections on the Parsha, Rabbi Berman regularly delivers shiurim on Halacha and Hashkafa, writes comprehensive chazara questions (in Hebrew) for the advanced Daf Yomi learner, and weekly words of inspiration from the Parsha. Rabbi Berman can be contacted at

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