Our Gemara on Amud Aleph discusses the legal process known as Shuda Dedayni, which we can translate as judicial discretion. That is, in certain legal situations where there is no evidence to prove one litigant’s possession over the other, the judges are allowed discernment and subjective impressions to use in their rulings. This is different from what we discussed in the prior daf, whereby via Kol De’alim Gavar, the judges recuse themselves. The difference is that here there is no intrinsic prior assumption of possession on either side. The classic case of Shuda Dedayni is when two people are in possession of contracts of transfer with the same date of completion. There is no claim of prior possession and each has an equally valid proof. Some Rishonim hold Shuda Dedayni is simply a discretionary act, while others hold that there was an expectation that the judge would employ intuition or below-threshold evidence to make his ruling (see Rashbam and Tosafos.) Rashbam says, the judges can somehow sense or determine whom the gift-giver felt closer to, and therefore whom he wanted to receive it.

 

This idea is similar to what we saw in yesterday’s blogpost, Psychology of the Daf Bava Basra 34. For the inhabitants of a Utopian world, where there is sensitivity to divine guidance, people feel the connection to their material objects.

 

As noted, the original case of Shuda Dedayni involved a situation where there were two contracts of sale, with the same date of execution. Aderes Eliyahu (Korach) uses this idea to develop a beautiful theological point, to better understand the following two teachings (Kiddushin 40a, and Chagigah 15a):

 

מחשבה טובה מצרפה למעשה, שנאמר: ״אז נדברו יראי ה׳ איש אל רעהו ויקשב ה׳ וישמע ויכתב ספר זכרון לפניו ליראי ה׳ ולחשבי שמו״. מאי: ״ולחשבי שמו״? אמר רב אסי: אפילו חשב אדם לעשות מצוה ונאנס ולא עשאה – מעלה עליו הכתוב כאילו עשאה.  

 

The Gemara further teaches: The Holy One, Blessed be He, links a good thought to an action…Rav Asi said: Even if a person intended to perform a mitzvah but due to circumstances beyond his control he did not perform it, the verse ascribes him credit as if he performed the mitzvah.

 

Secondly, there is a teaching that the righteous takes his portion and the portion of his wicked peer’s in the Garden of Eden.

 

Regarding the first teaching Aderes Eliyahu asks, what is the significance of the phrase, “links”? Is it not sufficient to state, “recognizes” or considers “equal”? What does it mean to link the thought to the deed? Regarding the second teaching, what does it really mean, to “take his wicked peer’s portion”? I think God can give him more of his own portion - why does God need to take it away from the wicked person?  Is this some kind of heavenly recycling program?

 

Aderes Eliyahu explains that the good intentions and thoughts related to a physical mitzvah are comparable to a soul and body. To accomplish something in the physical world you need action or a body, but without the intention or spirit animating the physical act, it is dull and lifeless like a corpse. He then surmises, given the disposition of the righteous person, as he is constantly trying to walk with God and the imperfections of life, he may have hundreds of thoughts that were never executed by action. The opposite can be said of the wicked, who occasionally may perform a good deed, but the good intention is usually missing. Thus you have “orphan” mitzvos, and intentions, floating around in the cosmic ether, while God matches up and links the intentions of the righteous with the actions of the wicked.

 

So far so good. But what if God pairs up as many intentions of the righteous with corresponding non-intentional, empty actions of the wicked as could be found, and yet there is still a surplus of good actions and deeds without any intentions left to link up with?  Aderes Eliyahu says this is comparable to the case of the two contradictory contracts, and a divine Shuda Dedayni is performed, whereby the righteous person whose soul is more linked to the corresponding wicked person’s soul, will take possession of his share of the mitzvah action. 

 

What does Aderes Eliyahu mean by the link of a wicked person’s soul to a righteous person? My guess is that there are different personality types, and whether they are employed for good or evil is a choice. As we are taught in Gemara Shabbos (156a):

 

One who was born under the influence of Mars will be one who spills blood. Rav Ashi said: He will be either a blood letter, or a thief, or a slaughterer of animals, or a circumciser. 

 

The implication is, the trait is inborn but the choice of behavior is based on individual morals and self management.

 

The righteous person with similar personality characteristics and challenges as his evil doppelgänger is then the deserving person to take possession of the unclaimed good deed, since he passed the test. 

 

My additional thought is, if we follow the Rashbam’s definition of Shuda Dedayni, the judicial determination is made based on a sense of what the gift giver would have wanted, which comes from investigating to whom he was closest. If so, perhaps in regard to surplus empty mitzvah deeds lacking intention, the righteous person who feels closest to the mitzvah and/or closer to God, is the one who takes possession.