I once made the grave mistake of promising the last cookie to two children. After dinner, both approached me simultaneously, looking expectant. As both mother and judge, what should I have done? Here’s what the Gemara on today’s page says:
Two deeds that are issued on the same day:
Rav said: They divide.
Shmuel said: It is at the discretion of the judges.
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On this particular evening, I divided the cookie, and both children were satisfied (they’re sweet kids). Shalom bayit, peace in our house, was restored. Was I ruling like Rav, who insists on splitting what was promised? Or Shmuel, who says it is up to the discretion of the judge? Though I split the cookie as Rav recommends, if I’m honest, I was operating more like Shmuel, arrogating to myself the power to decide. Had things been different — if one child had misbehaved and lost dessert privileges, or if a second dessert option more palatable to one of them had turned up — I might have given the whole cookie to one child.
I like Shmuel’s solution for other reasons as well: Sometimes the proverbial cookie can’t be split. Or one party can demonstrate that they were offered the cookie earlier and therefore have a prior claim. (As we learn on today’s page, in Jerusalem they wrote not only the date but also the hour on contracts for just this reason.) In such cases, Shmuel’s ruling makes more sense, allowing for the possibility that the judge will do exactly what I did and split the cookie, but also leaving other options open.
The Gemara makes just this point. And then, as it often does, goes on to demonstrate the problem of Shmuel’s position with a story about what happened when a mother (like me) promised something to two of her children. Except in that case it wasn’t a cookie, it was a piece of property:
The mother of Rami bar Hama wrote a deed in the morning transferring ownership of her property to Rami bar Hama, and in the evening she wrote another deed transferring her property to Mar Ukva bar Hama.
Rami bar Hama came before Rav Sheshet, who established his right to the property. Mar Ukva came before Rav Nahman, who established his right to the property.
Rav Sheshet came before Rav Nahman and said to him: “What is the reason that the master (you) did this?” Rav Nahman said to him: “And what is the reason that the master (you) did this?”
Rav Sheshet said to him: “Because (Rami bar Hama’s deed) came first.” Rav Nahman said to Rav Sheshet: “Is that to say that we are sitting in Jerusalem, that we write the hours (on our legal documents)?”
Rav Sheshet asked Rav Nahman: “But what is the reason that the master did this?” Rav Nahman said to him: “It was the discretion of the judges.” Rav Sheshet said to Rav Nahman: “I also applied the principle of the discretion of the judges.” Rav Nahman said to him: “First, I am a judge, and the master is not a judge. Second, at the outset, you did not arrive at your conclusion for this reason.”
A quarrel about who owns a piece of property that a mother deeded to two sons quickly devolves into a quarrel between the judges who each rule in a different son’s favor. Rav Sheshet, ruling in favor of Rami bar Hama, states that the latter deserves the property because his deed was written in the morning, before his brother’s. Rav Nahman, ruling in favor of Mar Ukva bar Hama, rejoins that the time the deed was issued is not actually recorded, and that he is relying on Shmuel, who gives judges the power to decide in such cases. Rav Sheshet tries switching to this tack, saying that according to Shmuel he also has the power to decide, but Rav Nahman shuts him down: Not only is Rav Sheshet not a judge, says Rav Nahman, he also indicated with his earlier statement that his ruling was not based on Shmuel’s principle, but on the idea that Rami bar Hama’s deed was written first.
This is where the story ends. The rabbis — and their rulings — are at loggerheads. We don’t learn which brother received the property, nor if they split it, nor if the rabbis resolved their differences. Shmuel’s ruling, that cases of property deeded twice on the same day are decided at the discretion of the judge, though good in theory, has sown only chaos and strife.
I understand this story as a warning about the dangers of Shmuel’s position specifically, and about giving judges too much discretion in general. And yet, if I’m being honest, I’ll probably continue to arbitrate such disputes in my household according to Shmuel’s ruling. I’m not ready to let go of my power over cookie distribution.
Read all of Ketubot 94 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on October 8th, 2022. If you are interested in receiving the newsletter, sign up here.
