Rav Yehudai Gaon in Bava Batra
On Bava Batra 62b, the Rashba notes that there is a section which is from Rav Yehudai Gaon. Specifically, there are two versions of a statement by Rava, describes as ikka deAmrei. Reacting to that, we have:
שָׁמְעִינַן מִתַּרְוַיְיהוּ לִישָּׁנֵי דְּרָבָא, דִּבְשָׂדֶה לָא שַׁיַּיר וְלָא מִידֵּי. וְשָׁמְעִינַן נָמֵי, דְּהֵיכָא דְּמַבְלַע, וְלֵיכָּא עֲלֵיהּ רִיכְבָּא דְּדִיקְלָא, וְלָא הָוֵי תִּשְׁעַת קַבִּין – קָנָה. לָא מַבְלַע, וְאִיכָּא עֲלֵיהּ רִיכְבָּא דְּדִיקְלָא, וְהָוֵי תִּשְׁעַת קַבִּין – לֹא קָנָה.
We conclude according to both versions of the statement of Rava that even if the seller withheld something for himself along the fourth boundary, he did not withhold anything at all in the field itself. And we also conclude according to both versions that where the fourth boundary is included within the space defined by the two adjacent boundaries, and there is no row of trees on it and it is not an area fit for sowing nine kav of seed, the buyer acquires it. And furthermore, we conclude according to both versions that if the fourth boundary is not included within the two adjacent boundaries, and there is a row of trees on it, or it is an area fit for sowing nine kav of seed, the buyer does not acquire it.
מַבְלַע וְאִיכָּא עֲלֵיהּ; לָא מַבְלַע וְלֵיכָּא עֲלֵיהּ – אִתְּמַר לַהּ לְהַאי גִּיסָא, וְאִתְּמַר לַהּ לְהַאי גִּיסָא. שׁוּדָא דְּדַיָּינֵי.
If the fourth boundary is included within the two adjacent boundaries, and there is a row of trees on it or it is fit for sowing nine kav of seed, or if the fourth boundary is not included within the two adjacent boundaries, and there is no row of trees on it nor is it fit for sowing nine kav, the ruling in these cases was stated in this direction, that the land adjacent to the fourth boundary is acquired by the buyer, and it was stated in that direction, that this land is not acquired by the buyer, depending upon which version of Rava’s statement is accepted. Since there is no clear ruling in these cases, the decision is left to the discretion of the judges, who must rule in accordance with what appears to them to be the intention of the seller.
Rashba writes:
שודא דדייני. כתב ר"ש ז"ל: ומיהו בשאר מקומות דמספקא לן בתרי לישני הלכתא כמאן, לא אמרינן שודא דדייני, עד שיפרש התלמוד כי הכא, אלא המוציא מחבירו עליו להביא ראיה. ע"כ. ויש אומרים [שזה] מלשון רב יהודאי גאון ז"ל. ומ"מ לו שומעין בזה, שקבלתו מרבנן סבוראי.
Quoting R”Sh: Generally speaking, when there’s a dispute between two internal variants and we’re uncertain how to rule, we do not say shuda de-dayanei. Only where the Talmud explicitly says this, such as here, do we say shuda de-dayanei. Otherwise, the operating principle is hamotzi meichaveiro alav hara’aya. End quote. And some say that this text in the gemara is from Rav Yehudai Gaon. And despite this, we would listen to him in this, for he received it (this tradition of applying shuda de-dayanei) from the Savoraim.
That is, shuda dedayni (to use the Yeshivish pronunciation), judicial discretion, is a closed set, and only those times that the gemara explicitly says to apply it can we apply it. We aren’t free to apply it to other cases (of conflicting lishnas of the gemara), but hamotzi meichaveiro should prevail.
Saying it is Rav Yehudai Gaon should mean:
this isn’t part of the closed set, since it’s post-Talmudic
Rav Yehudai Gaon examined the gemara himself, and came to this conclusion. Maybe he doesn’t hold it is a closed set
If we disagree with Rav Yehudai Gaon about the application of this principle, since he isn’t the gemara, we, meaning Rishonim like Rashba or late Acharonim like Josh-ba, should discard this application of shuda dedayni and apply hamotzi.
Instead, Rashba says that we would rule like Rav Yehudai Gaon regardless, because he’s conveying a Savoraic tradition. That’s possible. However, I’ll make trouble and say:
There is no evidence of this, other than something circular. One cannot apply shuda dedayni on one’s own, so if Rav Yehudai said it, it wasn’t on his own, so it must have been from earlier tradition.
Even if it was from the Savoraim, that is post-Ravina and Rav Ashi, and even if you say (debatable) that you cannot contest named Amoraim, or the gemara, Savoraim are another story.
I would have to explore the topic of shuda dedayni in much greater detail, but I’d either say that we can rule like Rav Yehuda Gaon in this case, and maybe make it an open set of cases, if we can figure out something characteristic of this case. Alternatively, we can hold like Rishonim like Rosh in other cases and simply argue on Rav Yehudai Gaon.
Note Rashba wasn’t entirely sure that this is Rav Yehudai Gaon. Sometimes, it is clear that something comes from Rav Yehudai Gaon, and the manuscripts themselves denote it. See for instance this Scribal Error post on Bava Metzia.
The scribe writes leshon Rav Yehudai Gaon in the margins at the start, or else peirush at the start, and ע”כ, ad kan at the end.
In this case, I couldn’t find this denoted in any manuscript. However, aside from Aramaic and anonymous, which is characteristic of every Stamma de-Gemara, there is the somewhat weird language of שָׁמְעִינַן מִתַּרְוַיְיהוּ לִישָּׁנֵי דְּרָבָא. Some manuscripts have something more standard, like תרי, but something seems off about it.
What also suggests Rav Yehudai Gaon at play here is considering the strata of the gemara. When you have an ikka de’amrei, that itself is connective tissue of Stamma, maybe Savoraic, where scribes or reciters take note of different traditions and so are relating each of those. I might expect the Stamma to discuss within one, or both of those variants, the implications. Here, an author is looking at the two variants together, שָׁמְעִינַן מִתַּרְוַיְיהוּ לִישָּׁנֵי דְּרָבָא, and analyzing what is common to them. That awareness and reaction to a prior text may more it to a later, even Geonic, stratum.