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buked her daughter for the bad reputation she had earned herself and
scolded her, “Why do all the townsfolk know about your bad ways?
I gave birth to ten sons and only one of them is your father’s, yet not
a single person in the town knows about it!” The woman’s husband
heard about this and before he died he wrote in his will,“All my assets
should go to one son [i.e. his one true son].” After the father died they
didn’t know which son was supposed to receive all his assets. They
came before Rabbi Banaah who told them,“Take sticks and beat your
father’s grave with them until he reveals to whom he intended to give
his assets. They all went to beat the grave except for one. Rabbi Ba-
naah ruled that that son was to receive all the assets.

Now, the Rashbam (s.v. chavotu) explains that Rabbi Banaah in-
tended to test them, for all those who were mamzerim would show
their brazenness and go to beat the grave. Rabbi Banaah ruled that
the assets should go to the one who was unwilling to beat his father’s
grave. The Rashbam explains (s.v. amar) that the father was proba-
bly fondest of the one who behaved modestly. “Rabbi Banaah ruled
correctly,” writes the Rashbam,“because the only relevant ruling here
is shuda de’diena [i.e. a judge is sometimes allowed to rule according
to his own judgment even though there is no explicit halachic basis
for his ruling] and this was such a ruling, to see which son would not
want to beat his father’s grave [he was the modest son] and this is also
the gemara’s ruling in the case of the man who said,‘My assets should
go to Tuviah’ [without specifying which Tuviah.’”

The Rashash expresses his surprise at the Rashbam, writing, “It
would have been simplest to explain that that was the son and that he
probably intended giving it to his son, because he left these instruc-
tions after having heard from his wife that nine of the sons were not
his.” In other words, the Rashash is arguing that it is altogether logical
to decide that was the real son and there is no need to explain Rav
Banaah’s ruling on the basis of shuda de’diena.

The Rashash’s comments seem very difficult to understood, for al-
though Rabbi Banaah’s idea was Divinely inspired, it is not logical that
this furnishes sufficient proof to determine monetary ownership and
conclusively prove an individual’s lineage. The Rashbam’s explanation

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