The mishnah on today’s daf presents a disagreement:
One who died and left behind a wife, a creditor and heirs, and he had a deposit or loan in another’s possession: Rabbi Tarfon says, “It is given to the weakest of them.”
Rabbi Akiva says, “One is not merciful in judgment, rather, it is given to the heirs, for all require an oath except for the heirs.”
If he left fruit detached from the ground, whoever took it first acquires it. If his wife took more than the value of her marriage contract or his debtor took more than the value of his debt, the surplus, Rabbi Tarfon says, goes to the weakest of them; Rabbi Akiva says one is not merciful in judgment, rather, it is given to the heirs, for all require an oath except for the heirs.
Rabbi Akiva argues that, according to the law, the heirs receive any deposits or extra produce that belonged to their father, as they are the only ones who can receive these items automatically — anyone else has to take an oath that they are owed and have not received money. The heirs receive the surplus of the estate because they have the strongest legal claim to it.
Rabbi Tarfon, on the other hand, argues that the estate’s surplus should not automatically go to the heirs, but to the most disadvantaged among those collecting revenue in the wake of the man’s death. Therefore, if the heirs are already quite wealthy and the widow is poor, she should receive the deposit or extra produce.
Rabbi Tarfon’s position seems merciful, and Rabbi Akiva’s seems just. In fact, Rabbi Akiva explicitly says: ein m’rachamim ba’din — one is not merciful in judgment. This may sound harsh, but support for Rabbi Akiva’s position is found in the Torah. Leviticus 19:15 exhorts:
You shall not render an unfair decision. Do not favor the poor or show deference to the rich. Judge your kin fairly.
On the other hand, it’s hard not to sympathize with Rabbi Tarfon’s position: Why should wealthy heirs receive an unexpected windfall when a poor widow is barely surviving?
The danger with implementing Rabbi Tarfon’s ruling, and in general with what the Talmud terms lifnim m’shurat ha’din — going beyond the letter of the law — is that it risks abuses in judgment. Deciding when a widow is sufficiently poor and heirs are sufficiently wealthy to enact this transfer is inherently subjective.
This debate plays out in later halakhic literature, where, according to Dr. Michael Vigoda, Ashkenazi decisors tend to incorporate the idea of going beyond the letter of the law into their judgements, while Sephardi decisors tend not to. In other words, Ashkenazi authorities favor Rabbi Tarfon, which Sephardi authorities stick with Rabbi Akiva. For example, Moses Maimonides, a.k.a. the Rambam (Sephardi), rules in the Mishneh Torah, Sanhedrin 20:4:
“One should not have pity on the poor. One shouldn’t say, ‘This one is poor and the other litigant is wealthy, and since I and the wealthy person are obligated to support him or her, I will acquit (the one who is poor) and thus support him or her in a respectful way.’ About this the Torah warns, ‘Do not glorify the poor in a dispute’ (Exodus 23:3) and ‘Do not favor the poor’ (Leviticus 19:15)”
Maimonides juxtaposes this ruling with similar warnings about applying the law justly, for instance, by not taking pity murderers. In the next few lines, he explicitly warns against potential abuses of partial judgment: showing favor to those with greater wealth, wisdom or stature. We can imagine that it was all-too-easy for courts, then as now, to do this.
During the High Holidays, when Jews perform teshuvah and repent their wrongdoings, the communal liturgy asks God, the judge on high, to be merciful rather than strict in judgment. And yet, on today’s page and in later legal writings, some rabbis admonish human judges to do the opposite — to apply the law strictly. Perhaps, then, there are different standards for human judges and the divine judge? Yet, elsewhere in the Torah, humans are enjoined to “do the right and the good in the eyes of God” (Deuteronomy 6:18), and we are expected to imitate God.
When do compassion and justice come together, and when do they diverge? If we do not know for sure, we only have the letter of the law to guide us. May our learning help us discern “the right and the good,” helping us to better make true justice a reality on earth.
Read all of Ketubot 84 on Sefaria.