Ketubot 94

כגון שנמצאת אחת מהן שדה שאינה שלו ובבעל חוב מאוחר שקדם וגבה קמיפלגי

The case is where it is discovered that one of the fields in the estate is not his field, e.g., the husband had stolen it from someone else. Consequently, it is likely that the field will be repossessed, and if it is used to pay the marriage contract of one of the first three wives, that wife stands to lose out. And they disagree with regard to a creditor whose promissory note was dated later than that of another creditor, and yet he collected his debt before the other creditor, leaving nothing for the other creditor to collect. This is parallel to the case of the wives if the fourth wife collects her marriage contract and then one of the earlier wives loses the field she has been paid.

תנא קמא סבר מה שגבה לא גבה

The first tanna holds that what the creditor has collected, he has not fully collected, i.e., he will have to give up the property he collected so that the creditor with the earlier promissory note can collect his debt. Similarly, if the property given to one of the first three wives is repossessed and there is nothing left for her to collect, the fourth wife will have to relinquish the property that she had been paid to accommodate the wife who preceded her.

ובן ננס סבר מה שגבה גבה

And ben Nanas holds that what the creditor has collected, he has collected, i.e., it is not taken from him in order to pay the earlier creditor. Consequently, according to the first tanna, there is no need for the fourth wife to take an oath before she collects the property, because whatever she collects can be taken from her in order to pay the other wives. According to ben Nanas, since the property the fourth wife collects cannot be taken from her, she must take an oath that she is collecting this property legally in order to ensure that none of the other wives will lose out because of what she collects.

(אמר) רב נחמן אמר רבה בר אבוה דכולי עלמא מה שגבה לא גבה והכא בחיישינן שמא תכסיף קמיפלגי

Rav Naḥman said that Rabba bar Avuh said: Everyone agrees that what the later creditor has collected, he has not collected, i.e., it may be repossessed by the earlier creditor. Rather, they disagree here as to whether we are concerned that perhaps she will deplete the field and cause its value to depreciate.

מר סבר חיישינן שמא תכסיף ומר סבר לא חיישינן שמא תכסיף

One Sage, ben Nanas, holds that we are concerned that perhaps she will deplete the field. If she is not required to take the oath, she will understand that her hold on the land is uncertain, as it is possible that one of the other wives will repossess it. Consequently, she will try to reap the maximum benefit from the field in the short term without investing in the field for the long term, and thereby depleting the field. The Sages therefore imposed an oath upon the fourth wife. And one Sage, the first tanna, holds that we are not concerned that perhaps she will deplete the field and we can assume that it will retain its original value. Therefore, there is no reason to impose an oath upon the fourth wife.

אביי אמר דאביי קשישא איכא בינייהו דתני אביי קשישא יתומים שאמרו גדולים ואין צריך לומר קטנים

Abaye said: There is a practical difference between them, the first tanna and ben Nanas, with regard to the ruling of Abaye the Elder, as Abaye the Elder taught: The orphans with regard to whom the Sages said that one cannot collect property from them without taking an oath include adult orphans, and, needless to say, orphans who are minors. Even adult orphans are not necessarily aware of the business affairs of their parents, and one can easily press claims against the estate that take advantage of their ignorance. Therefore, anyone who wishes to collect money from the estate is required to take an oath.

תנא קמא לית ליה דאביי קשישא ובן ננס אית ליה דאביי קשישא

The first tanna does not accept the ruling of Abaye the Elder and therefore holds that the fourth wife does not have to take an oath when collecting her marriage contract. And ben Nanas accepts the ruling of Abaye the Elder and therefore holds that the fourth wife must take an oath before collecting part of the estate.

אמר רב הונא הני תרי אחי ותרי שותפי דאית להו דינא בהדי חד ואזל חד מינייהו בהדיה לדינא לא מצי אידך למימר ליה את לאו בעל דברים דידי את אלא שליחותיה עבד

§ Rav Huna said: In a case of two brothers or two partners who have legal proceedings against another individual, and one of them went to attend to the legal proceedings against him and lost, the other brother or partner cannot say to the litigant: I am not legally answerable to you, i.e., I am not bound by the verdict because I was not represented in the legal proceedings. Rather, the brother or partner who appeared in court is considered to have acted as his agent.

אקלע רב נחמן לסורא שיילוהי כי האי גוונא מאי

The Gemara relates that Rav Naḥman once happened to come to Sura. They asked him: What is the halakha in a case like this one presented by Rav Huna, where only one of the two brothers or partners attends the court proceedings?

אמר להו מתניתין היא הראשונה נשבעת לשניה ושניה לשלישית ושלישית לרביעית ואילו ראשונה לשלישית לא קתני מאי טעמא לאו משום דשליחותה עבדה

He said to them: It is taught in a mishna: The woman he married first takes an oath to the woman he married second, the second to the third, and the third to the fourth. But it does not teach that the first wife takes an oath to the third or the fourth. What is the reason? Is it not due to the fact that when the second wife requires the first to take an oath, she is acting as the third wife’s agent as well, since they both share the same concern regarding the first wife?

מי דמי התם שבועה לאחד ושבועה למאה הכא אמר אילו אנא הואי טעיננא טפי

The Gemara responds: Is it comparable? There, in the case of the mishna, an oath to one is equal to an oath to one hundred, and there is no need for the first wife to take multiple oaths about the same matter. Here, however, in the case of the brothers or business partners, the second brother or partner can say: Had I been there, I would have presented a more convincing claim.

ולא אמרן אלא דלא איתיה במתא אבל איתיה במתא איבעי ליה למיתי:

The Gemara notes: We said that this doubt is taken into account only if the second brother or partner is not in town when the legal proceedings take place. However, if he is in town, he should come to court to participate in the legal proceedings, and if he fails to do so, it is clear that he is content to allow his brother or partner to represent him in court.

אתמר שני שטרות היוצאים ביום אחד רב אמר חולקין ושמואל אמר שודא דדייני

§ It was stated that in a case of two deeds that are issued, i.e., dated, on the same day, e.g., where an individual gave or sold the same item to two different people, Rav said: They divide it between them, as it is impossible to determine who it belongs to, and Shmuel said: The item is awarded according to the discretion [shuda] of the judges.

לימא רב דאמר כרבי מאיר דאמר עדי חתימה כרתי

The Gemara asks: Shall we say that Rav said his ruling in accordance with the opinion of Rabbi Meir, who said that signatory witnesses on the document effect the transaction? Here, since the seller or the giver of the field did not ask the signatory witnesses to note the exact time, it implies that he wished to give it to two people, but did not want to reveal that he was giving it to both of them.

ושמואל דאמר כרבי אלעזר דאמר עדי מסירה כרתי

And Shmuel said his ruling in accordance with the opinion of Rabbi Elazar, who said that witnesses of the transmission effect the transaction, i.e., the act of transferring the legal document to the beneficiary causes the transaction to take effect. Therefore, the fact that the two documents bear the same date is of no consequence because the documents were presumably not given to their beneficiaries simultaneously, and the property belongs exclusively to the individual who received his document first. Consequently, there is no reason to divide the property.

לא דכולי עלמא כרבי אלעזר והכא בהא קמיפלגי רב סבר חלוקה עדיפא ושמואל סבר שודא דדייני עדיפא

The Gemara responds: No, it is possible to say that everyone holds in accordance with the opinion of Rabbi Elazar, and here they disagree about the following: Rav holds that in a case of a doubt that cannot be resolved with regard to monetary law, division is preferable, and Shmuel holds that leaving the decision to the discretion of the judges is preferable.

ומי מצית מוקמת ליה לרב כרבי אלעזר והאמר רב יהודה אמר רב הלכה כרבי אלעזר בגיטין כי אמריתה קמיה דשמואל אמר אף בשטרות מכלל דרב סבר בשטרות לא אלא מחוורתא רב כרבי מאיר ושמואל כרבי אלעזר

The Gemara asks: Can you really establish that the opinion of Rav is in accordance with the opinion of Rabbi Elazar? Didn’t Rav Yehuda say that Rav said: The halakha is in accordance with the opinion of Rabbi Elazar with regard to bills of divorce? And Rav Yehuda related further: When I said this halakha in the presence of Shmuel, he said: The halakha is in accordance with the opinion of Rabbi Elazar even with regard to other legal documents as well. By inference, it is apparent that Rav holds that with regard to other legal documents, no, the halakha is not in accordance with Rabbi Elazar. Rather, it is clear that Rav holds in accordance with the opinion of Rabbi Meir, and Shmuel holds in accordance with the opinion of Rabbi Elazar.

מיתיבי שני שטרות היוצאים ביום אחד חולקין תיובתא דשמואל אמר לך שמואל הא מני רבי מאיר היא ואנא דאמרי כרבי אלעזר

The Gemara raises an objection from a baraita: In the case of two deeds that are issued dated the same day, the recipients of the deeds divide the property equally. Is this not a conclusive refutation of the opinion of Shmuel? The Gemara answers that Shmuel could have said to you: In accordance with whose opinion is this baraita? It is in accordance with the opinion of Rabbi Meir, and I said my opinion in accordance with the opinion of Rabbi Elazar.

אי רבי מאיר אימא סיפא כתב לאחד ומסר לאחר זה שמסר לו קנה ואי רבי מאיר אמאי קנה האמר עדי חתימה כרתי

The Gemara continues to ask: If this baraita is in accordance with the opinion of Rabbi Meir, say the latter clause of that same baraita: If he wrote a deed to one individual and then transmitted it to another individual, the one to whom the deed was transmitted has acquired the property. If the baraita is following the opinion of Rabbi Meir, why did the latter individual acquire the property? Didn’t Rabbi Meir say that the signatory witnesses on the document effect the transaction and not the witnesses to its transmission?

תנאי היא דתניא וחכמים אומרים יחלוקו וכאן אמרו מה שירצה השליש יעשה

The Gemara responds: The baraita cited above is entirely in accordance with the opinion of Rabbi Elazar. However, there is a dispute between tanna’im with regard to money whose ownership is uncertain, as it is taught in a baraita: In a case where an individual sent a sum of money to another via a messenger, and by the time the messenger arrived, the intended recipient had died, and in the meantime, the individual who had sent the money also died, the tanna’im disagree about what to do with the money. The Rabbis say: The heirs of the sender and the heirs of the intended recipient should divide the money. And here, in Babylonia, they said: The third party, i.e., the messenger, can do as he pleases with the money, a ruling that is comparable to the solution of leaving the decision to the discretion of the judges.

אמיה דרמי בר חמא כתבתינהו לנכסה לרמי בר חמא בצפרא לאורתא כתבתינהו למר עוקבא בר חמא

The Gemara relates that the mother of Rami bar Ḥama wrote a deed in the morning transferring ownership of her property to Rami bar Ḥama, and in the evening she wrote another deed transferring her property to another of her sons, Mar Ukva bar Ḥama.

אתא רמי בר חמא לקמיה דרב ששת אוקמיה בנכסא אתא מר עוקבא לקמיה דרב נחמן אוקמיה בנכסא אתא רב ששת לקמיה דרב נחמן אמר ליה מאי טעמא עבד מר הכי אמר ליה ומאי טעמא עבד מר הכי

Rami bar Ḥama came before Rav Sheshet and the latter established his right to the property. Mar Ukva, his brother, came before Rav Naḥman and the latter established his right to the property. Rav Sheshet came before Rav Naḥman and said to him: What is the reason that the Master did this, i.e., why did you issue this ruling? Rav Naḥman said to him: And what is the reason that the Master did this, i.e., why did you rule as you did?

אמר ליה דקדים אמר ליה אטו בירושלים יתבינן דכתבינן שעות אלא מר מאי טעמא עבד הכי אמר ליה שודא דדייני

Rav Sheshet said to him: Because Rami bar Ḥama’s deed preceded that of Mar Ukva. Rav Naḥman said to Rav Sheshet: Is that to say that we are sitting in Jerusalem, that we write the hours on our legal documents? The halakha is that in any place where the hours are not recorded on legal documents, it does not matter when during the day a document was written. Rav Sheshet asked Rav Naḥman: But what is the reason that the Master did this, ruling as you did? Rav Naḥman said to him: It was the discretion of the judges, i.e., I ruled this way since it seemed to me that this is the way the mother wanted it.

אמר ליה אנא נמי שודא דדייני אמר ליה חדא דאנא דיינא ומר לאו דיינא ועוד מעיקרא לאו בתורת הכי אתית לה

Rav Sheshet said to Rav Naḥman: I also applied the principle of the discretion of the judges and ruled as I did. Rav Naḥman said to him: One response to your point is that I am a judge, and the Master is not a judge, as Rav Sheshet did not serve in the official capacity of a judge. Furthermore, at the outset, you did not arrive at your conclusion for this reason, but due to your own theory with regard to the dating of the documents, which proved to be incorrect.

הנהו תרי שטרי דאתו לקמיה דרב יוסף חד הוה כתוב בחמשא בניסן וחד הוה כתוב ביה בניסן סתמא אוקמיה רב יוסף לההוא דחמשא בניסן בנכסים

The Gemara relates another incident in which an individual wrote two deeds about the same piece of property: There were these two deeds that came before Rav Yosef. In one deed, it was written that the owner of the field sold it to a particular individual on the fifth of Nisan, and in the other one it was written that he sold the same property to someone else in Nisan, without specifying on which day in Nisan the sale took place. Rav Yosef established that the one whose deed said the fifth of Nisan had the right to the property.

אמר ליה אידך ואנא אפסיד אמר ליה את ידך על התחתונה אימא בר עשרים ותשעה בניסן את

The other claimant said to Rav Yosef: Should I lose? After all, it is possible that my deed was written prior to the other deed. Rav Yosef said to him: You are at a disadvantage, because there is no specific date in your deed, allowing one to say that your deed is from the twenty-ninth of Nisan. Since you have no way to prove otherwise, the property is awarded to the one who has a more specific date recorded in his deed.

אמר ליה ונכתוב לי מר

The man said to him: Let the Master write me