Shuda De-Dayana – Awarding Disputed Monies in the Absence of Evidence
Typically, halakha provides several methods for resolving financial litigation in the absence of either eidim or written testimony captured in a shetar. Most alternate methods are designed to prove which party deserves the money based upon the strengths of their respective claims. A gemara introduces a rarely employed "last resort" option which is utilized in extreme situations. This option, known as shuda dedayana, allows the judges to award the disputed monies to the litigant of their choice. The primary example cited by the gemara is a situation in which a tract of land was sold to two different purchasers on the same day. In the absence of witnesses testifying which shetar was delivered first (assuming that the delivery of the shetar is the pivotal 'launch' of the shetar) we are deadlocked. Unable to determine the first purchaser, the Beit Din may perform shuda and award the item to the party it chooses.
Rashi and Rabeinu Tam engage in a classic debate regarding the shuda option. Rashi claims that Beit Din attempts to intuit the true owner. Even in the absence of halakhically valid testimony, Beit Din may be able to determine certain "likelihoods." For example, they may conjecture about the preferences of the original seller and which purchaser he was likely to prioritize. The decision can be rendered independent of the actual owner since we cannot determine the true owner. Similar indications emerge from the description of shuda in the Rambam in Hilkhot Zechiya U'matana 5:6.
By contrast, the Rabeinu Tam raises two instances of shuda which suggest that in fact, the judges may UNILATERALLY award the disputed money to the litigant of their choice. In fact, he cites a Yerushalmi which terms this procedure shochada (bribery of dayanim) rather than shuda (estimation of dayanim). This suggests that the litigant may even bribe or otherwise persuade the judges to arbitrarily favor him. Though this latter notion of shuda is quite arresting it seems to be more anchored to some of the gemarot which employ shuda in seemingly indeterminable situations.
It is quite clear that the Rabeinu Tam views shuda as a withdrawal from the process of pesak (halakhic adjudication) geared toward discovering the true owner. Unable to process this litigation, Beit Din enjoys the right to award to whichever party they chose - independent of the facts. However, according to Rashi it is not so clear how we view shuda. Would he agree that shuda constitutes a withdrawal from pesak - but is nevertheless implemented with some logic and some paralegal method? Instead of merely capriciously announcing a winner, Beit Din must locate some logic or some basis for their award. Yet even Rashi would concede that the actual invocation of shuda still represents a WITHDRAWAL from the formal process of pesak. Alternatively, may we claim that Rashi's shuda is structurally different from the Rabeinu Tam's and may be considered an actual PESAK? Since it ultimately is based on some form of evidence or intuition the awarding is the final option for Beit Din in determining the rightful owner.
Tosafot in Bava Batra (35a) cite a position of Rabbenu Chananel which imposes an interesting limitation upon the process of shuda. Based upon a gemara in Ketubot, Rabbenu Chananel claims that only a dayan mumcheh (a superior expert judge) may impose shuda. Tosafot in Kiddushin add a different requirement - that the judge be a permanent judge rather than merely a qualified one. Either way Tosafot claim – and base their claim on a gemara in Ketubot (94b) – that common judges may not impose shuda. This is consistent with their position that shuda is a withdrawal of pesak and an arbitrary award of the item. Tosafot challenge Rashi to defend this limitation. If Beit din is merely discerning the true intent of the original owner why can't any judge perform shuda? Tosafot see these limitations as a signal that shuda is a non-pesak form of arbitrary decision making.
The Rabbenu Yonah does indeed question Tosafot's reading of the gemara in Ketubot (94b), thereby allowing Rashi to disagree with Tosafot's premise that shuda may only be performed by expert or permanent judges. Yet even Rashi may be able to accept the premise of Tosafot. Maybe Rashi agrees that fundamentally shuda is not considered a pesak, even though the dayanim should attempt to anchor their NON-PESAK DECISION to the reality of the situation and the possible likelihoods. However, since it is not a form of pesak it demands unique personalities to invoke it.
This notion may also solve an additional concern according to Rashi. The gemara in Bava Batra raises shuda as a solution to a disputed field claimed by two litigants, each of whom asserts that they inherited the field. The Ramban, in his attempt to debunk Rashi's 'estimation' type of shuda questions what type of analysis can be conducted in this situation. In the aforementioned situation of two shetarot signed on one day Rashi maintains that the judges 'estimate' which of the two purchasers was closer to the seller. By assessing this they may conclude that he ultimately sold it to the closer of the two. By contrast, when two litigants dispute hard facts - namely which of their fathers owned the land, how can we estimate the owner? There was no delivery by a third party and we cannot estimate with which of the two he may have been closer.
Presumably, Rashi would answer this challenge by claiming that in a situation of disputed land we do estimate which of the two litigants possesses non-binding circumstantial evidence. Despite the fact that such peripheral evidence may not be acceptable in a classic litigation leading to conventional pesak, it may be acceptable according to Rashi since shuda may not constitute a classic pesak.
Yet another benefit which emerges if Rashi does not deem shuda an actual pesak is a solution to a question Tosafot raises from Kiddushin (74a). The gemara claims that judges can actually testify as to who they awarded the money as long as the litigants are still present. If the litigants have already departed they are not believed. The gemara questions the need for their testimony: Let them just repeat the judgment! To this the gemara responds that they issued the original pesak through shuda. Tosafot believe that the gemara intends that a second process is unacceptable since the judges may render a different outcome. As shuda is completely arbitrary the judges may award a different litigant. Without the confidence of an identical verdict we do not repeat the 'trial' and the only way to determine the victor is for the judges to actually testify as to who they awarded.
However, if shuda is an assessment – as Rashi claimed - why should they not reassess the situation with the confidence of concluding an identical verdict? Perhaps, Rashi would answer that since shuda is not considered the rendering of a pesak but rather a WITHDRAWAL from the process of pesak, once they assert shuda they can no longer reevaluate the case since they have already EXCLUDED themselves from pesak. The resistance to repeating shuda does not stem from fear of arriving at a different conclusion but rather from a LEGAL restraint; once they have abandoned the process of PESAK (by implementing shuda) they cannot return to pesak.