Our Gemara on amud aleph discusses a legal process that seems odd and unfair. In certain situations, where there is strong compelling evidence on both sides and no hope to further clarify, the judges may arbitrarily decide to eddie in favor of one petitioner over the other. For example, Kesuvos (85b) deals with a case where a man’s deathbed wishes are to give his possessions to Tuvia. The problem is, there are two people named “Tuvia” in the city. Assuming no evidence is given, the judge can simply choose whom to award the bequest. This is known as Shuda De-Dayni, the “throwing” of the judges, in a sense that they can just throw out a decision.

Rashi and Tosafos argue as to the extent of this judicial privilege. Rashi says the judge is supposed to formulate an educated guess and rely on subtle indications when there is no hard evidence. The judge is to intuit who indeed was closer to the deceased, and who was the deceased more likely to favor. However, Tosafos holds that even this is not incumbent upon the judge and he may give it to either person based on his whims.

How is Tosafos’ position just? Looking through the cold hard lens of logic, one can say the point is that justice is impossible here. The judge is just expected to settle the matter and keep the peace so that there is an orderly resolution instead of ongoing quarrel. Nevertheless, it still feels wrong, and there should be a more moral basis for Tosafos’ understanding of Shuda De-Dayni.

Likutei Halakhos Choshen Mishpat Laws of Movable Property 4.2 explains that our possessions are drawn to us via divine decree. Our efforts at parnassah potentiate possession that was latent within the object. In a certain way, “It has our name on it.” Likkutei Halakhos says this is why we let the judge make a seemingly arbitrary decision because somehow he will be guided by intuition to connect the money to the owner. He compares this to a different case without evidence but strong possession on both sides, where the judges may withdraw and encourage the disputants to work out for themselves. Literally, “Whoever is stronger will prevail.”

Even according to Rashi, though the judge may be trying to look for concrete clues and indications, ultimately, the most influential factor still might be the metaphysical draw that brings possessions to a person. Believing that what is meant for you has a tendency to flow more easily can lead to a more relaxed, and non-obsessional attitude towards one’s efforts, such as we discussed earlier in Psychology of the Daf Kiddushin 59.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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