Children inherit their parents’ estate. If a child is not yet the age of majority when this happens, a court can appoint a steward to act as their agent as the estate is divided up. And what happens if the child feels that the court-appointed agent did not represent them well and they got less than they should have?
Rav Nahman says that Shmuel says: They can protest the division and demand redistribution of the property.
Shmuel holds that upon reaching majority, when they have standing to represent themselves, orphans can challenge the division of property. Yet, Rav Nahman — who quotes this tradition — himself thinks otherwise:
When they have grown up, they cannot protest. If so, what advantage is there to the power of the court?
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This is part of the Talmud’s larger discussion, in the opening pages of chapter two, about agents. In general, when a person appoints an agent to act on their behalf, the agent is considered to be an extension of the person who empowered them to act, as long as they act according to the instructions that they have been given. If the agent goes off script, or does not act in the interest of the one who appointed them, their actions can be challenged.
Shmuel grants the same opportunity to those who have been represented by court-appointed agents. In our case, he allows orphans who have come of age to speak up for themselves if they believe that they have been misrepresented.
Rav Nahman disagrees. In his view, court-appointed agents are not the same as regular agents, but extensions of the court and therefore their actions should be held in higher esteem. After all, he argues, what good is it to have courts if their actions can be challenged in court?
Shmuel’s position has merit. A society should be judged by the way it treats its most vulnerable members. If a court-appointed agent does not adequately protect the rights of their charge, there should be an opportunity for recourse. Further, if an injustice has been done and we have the ability to correct it, we should be able to do so.
But is this always true? If decisions made by court authorities are subject to challenge, even years later, what authority have we really invested in our leaders? Are there times when the cost of reexamining decisions from the past is higher than any benefit that may come from doing so? Are there times when accepting what happened and moving on is the most prudent option? Rav Nahman’s position, it appears, has merit as well.
For some, there is a clear answer here; although, those who fall in this category may not all agree. For the rest, there is more thinking required to arrive at the balance of the two.
We’ve already encountered many conversations about the role of the courts, about agents and stewards, and about orphans and widows — and we’ll see many more before we complete this Daf Yomi cycle. Why? Because the Talmud sees no clear answer here. The rabbis know full well that for every Shmuel, there is a Rav Nahman, and more often than not, both have a valid point. Precedent, context, ethics, practicality and common sense all have a role to play in the process of figuring this out and it may be that the more you dig, the more unsure you might be about what the right answer is.
The debate between Shmuel and Rav Nahman, along with the related, parallel, tangential and other texts that come along with it, spark a long conversation in the Talmud. And, it’s not just the content that is important — the message is also in the medium.
Read all of Kiddushin 42 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 24th, 2023. If you are interested in receiving the newsletter, sign up here.
