Special case of “Shuda d’Daini” – Bava Basra 62


Subscribe to the Daily Daf Yomi Summary here.

By: Rabbi Yaakov Montrose

The Gemora discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemora presents two versions of Rava’s position on the matter. According to both versions, if the fourth boundary is “muvla” — “absorbed” (see sketch in Rashbam D”H v’Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no hedge of palms on it or nine kav of seeds could be planted there), the area is included in the sale. In the opposite case, where the fourth boundary is not muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is muvla but the area is important, or the area is not important but it is not muvla). The Gemora concludes that the halachah is “shuda d’dayanei.”

The Rishonim explain that although “shuda d’dayanei” usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision, the application of “shuda d’dayanei” in this case is different. The Rishonim quote a tradition, which some say dates from the Rabbanan Savorai, that although in such a case the halachah should follow the second version of Rava, or the halachah should be “ha’Motzi me’Chaveiro Alav ha’Re’ayah” – the one who is exacting money from his fellow must bring the proof, the ruling of “shuda d’dayanei” here is “an logical decision” by the judges. What does this mean?

The Rosh explains that Rava actually said both statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava’s two statements are not contradictory; the halachah may differ depending on the details of the specific case. The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.

The Nimukei Yosef similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.

The Pilpula Charifta notes that the Rosh and Nimukei Yosef certainly take into account that the halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of “Damim Modi’im” – “the money shows” to decide a case. However, in this case, in which the ruling is “shuda d’dayanei,” the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.

The Rashbam writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do.

The Rambam (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account.