Monday, December 03, 2007

Kesubos 94b - Shuda vs. Chaluka

There is a machlokes between Rav and Shmuel when 2 shtaros go out on the same day, whether it is better to split the $ (rav), or better for the dayan to decide who to give it to (shmuel). It is meduyak in rashi at the start of the sugya that shuda is a better system provided that it is possible that one of them deserves it and not the other. Therefore, at the beginning of the sugya rashi has to justify why according to r' meir it is impossible to use shuda and that is because both contracts go into effect at the end of the day that they were written therefore both buyers own it equally and should divide. This assumption would presumably be based on rashi's interpretation of shuda, which is that the dayan decides who really deserves it (meaning based on the sellers relationship and other forms of evidence, the dayan tries to guess which one rightfully deserves the land).
On the other hand, Rabbeinu Tam seems to understand that dividing is actually a better solution, therefore so long as it is possible that both contracts went into effect simultaneously (such as they were signed at the exact same moment) even though it is possible that they were not, we would still prefer the method of chaluka. Rabbeinu Tam is forced to explain why according to R' Elazar is chaluka not viable, and that is because it is impossible that he gave over to both of them at the same time. It is only because chaluka is impossible that we implement shuda. This would presumably be based on Tosafos approach to shuda which is that the dayan does whatever he wants (see also tosafos 85b), therefore it is not a very good option and is only used when chaluka is not a possibility.

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