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Kollel Iyun Hadaf, Jerusalem

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Kesuvos 94



(a) According to Shmuel, the basis of the Machlokes between the Tana Kama and ben Nannes, who argue over whether the fourth wife is obligated to swear or not, is whether a later creditor who seizes his debt before an earlier one, may retain what he seized or not. The case is - when the field claimed by one of the earlier wives turns out to be stolen (though the real owner has not yet claimed it), in which case, the field that the fourth wife is now claiming is likely to fall into the above category (should the owner of the stolen field claim it from the previous wife).

(b) This will explain the opinion of ...

1. ... the Tana Kama, who exempts her from swearing - because he maintains that a later creditor who seizes his debt before an earlier one is not permitted to retain what he claimed anyway, so why obligate the fourth woman (who will automatically be forced to give it up when the owner claims his field from the earlier one) to swear already now?
2. ... ben Nannes, who obligates her to swear - because otherwise, we are afraid that the woman who is now about to lose her field will also lose her claim, since he holds that once a later creditor claims his debt, he is permitted to retain what he claimed.
(c) According to Rav Nachman Amar Rabah bar Avuhah, even ben Nannes agrees that a later creditor who seizes his debt before an earlier one, must return what he seized. The reason that ben Nannes obligates the fourth wife to swear to the one whose land turns out to have been stolen - is because otherwise, we are afraid that she will suspect that she is about to lose the field, and get out of it whatever she can whilst she still has it, without taking care to look after it.

(d) In the opinion of Abaye, it is not to one of the wives that the fourth wife is obligated to swear, but to the orphans. According to him, the basis of the Machlokes between the Tana Kama and ben Nannes is a Beraisa quoted by Abaye Keshisha - which states that when Chazal obligated anyone who claims from orphans to first swear, they did not differentiate between minors and grown-ups. ben Nannes subscribes to this view, the Tana Kama disagrees.

(a) Rav Huna says that one brother or partner who goes to Beis-Din with a claimant and loses the case - acts as the Sheli'ach of his brother or partner (automatically obligating him to pay his half).

(b) Rav Nachman tried to prove this from our Mishnah, where each subsequent woman only has to swear to the next one - but not to the subsequent women who come to claim their Kesuvah.

(c) In fact, however, there is no proof from there - because exactly the same Shevu'ah that each woman swears to the one woman (that she did not receive her Kesuvah from her husband) she will swear again to the other (so what is the point of making her take the same oath again?); whereas in the case of brothers of partners, the second brother or partner can argue that he has a counter argument against the claimant that the first defendant did not have. Consequently, he is entitled to refuse to pay unless the claimant takes him to court independently.

(d) We will accept Rav Huna's ruling however - in the event that the brother or partner was in town when the claimant took his brother or partner to court, because if he had something to say, he should have gone with them to Beis-Din.



3) According to Rav, if two people produce a Sh'tar, each one claiming that the owner sold *him* the field, they divide it between them. According to Shmuel - the Beis-Din try to assess to whom the seller would have preferred to sell it, and give him the benefit of the doubt ('Shuda de'Dayna').


(a) Rebbi Meir holds that it is the witnesses who sign on a Get who validate it. According to Rebbi Elazar - it is the witnesses before whom it is handed over.

(b) According to Rebbi Elazar - witnesses are required to sign on the Get because of 'Tikun ha'Olam' (in case the witnesses who saw the handing over, die or go overseas).

(a) We resolve the question whether their Machlokes extends to other documents by connecting the Machlokes between Rav and Shmuel with that of Rebbi Meir and Rebbi Elazar. Rav holds like Rebbi Meir - who holds that the key witnesses are those who sign on the Sh'tar, in which case, each claimant has irrefutable evidence that he is the purchaser, and the only solution is division. Whereas Shmuel holds like Rebbi Elazar - who goes after the witnesses before whom the Sh'tar was handed over. Seeing as they are unavailable (otherwise we would know *from them* to whom the owner handed it first), neither claimant has proof that he is the owner. Consequently, he applies 'Shuda de'Dayna'.

(b) We try to reject this contention however - by establishing both Rav and Shmuel like Rebbi Elazar, and they argue over whether division is more logical or 'Shuda de'Dayna'.

(c) It is the latter contention however, that is unacceptable, because of another statement of Rav's. When Rav Yehudah quoted before Shmuel what Rav had said, he replied that the Halachah is like Rebbi Elazar by *all* documents - whereas Rav had told Rav Yehudah that the Halachah is like him by Gitin exclusively.

(a) Shmuel initially reconciles his own opinion with the Beraisa that states 'Sh'nei Sh'taros ha'Yotz'in be'Yom Echad, Cholkin' - by establishing it like Rebbi Meir, whilst he holds like Rebbi Elazar.

(b) The problem with this explanation from the Seifa, which states 'Kasav le'Echad u'Masar le'Acher, Zeh she'Masar Lo Kanah' - is that that is the opinion of Rebbi Elazar, not Rebbi Meir, as Shmuel just suggested.

(c) So Shmuel reconciles the Beraisa with his own opinion - by quoting a Beraisa, where there is a Machlokes Tana'im whether (according to Rebbi Elazar) we say 'Yachloku' or 'Shuda de'Dayna'.

(a) The Chachamim, in the Beraisa to which we just referred, say 'Yachloku' - are speaking in a case when Reuven sent Shimon with a Manah to pay Levi, and when he arrived, Levi had died. Then, when he returned, Reuven had died too.

(b) 'Kahn Amru' - holds that Levi should give the money to whomever he sees fit ('Shuda de'Dayna').

(a) In the morning, Rami bar Chama's mother wrote him her Kesuvah. In the evening - she gifted it to his brother Mar Ukva (though it was not known to whom she handed it first).

(b) Rav Sheishes placed the Kesuvah in the possession of Rami bar Chama. When he claimed that this was because *his* document was dated earlier - Rav Nachman objected on the grounds that it is only in Yerushalayim that it was customary to write the time of day into the document).

(c) Rav Nachman subsequently - placed the Kesuvah in the possession of Mar Ukva bar Chama.

(a) When Rav Sheishes claimed that, like Rav Nachman, he had based his ruling on 'Shuda de'Dayna', Rav Nachman claimed that Rav Sheishes was not a Dayan, and therefore had no authority to apply 'Shuda de'Dayna' - and besides, he argued, that was not the reasoning that he had initially given for his ruling.

(b) Otherwise, Rav Sheishes would have had the law on his side - because, once, based on 'Shuda de'Dayna', he had issued a ruling, Rav Nachman would have no right to countermand it.

(c) Rav Nachman obtained the authority of a Dayan - from the exilarch (and his Yeshivah - though it is unclear what Rashi means with this).

(d) It was Mar Ukva bar Chama who finally received the Kesuvah through the ruling of Rav Nachman.

(a) When two claimants came before Rav Yosef, one with a document (of sale) dated the fifth of Nisan, the other, with a document dated Nisan S'tam - he ruled in favor of the former.

(b) He explained to the other claimant that this was - because, based on the principle 'ha'Motzi me'Chaveiro, Alav ha'Re'ayah', he would have to prove that his Sh'tar was written earlier than his friend's.

(c) And when the latter asked him for a document dated from Rosh Chodesh Iyar, authorising him to claim from the purchasers of the seller (who had accepted responsibility) from then on - he replied that, vis-a-vis the purchaser, he would have to prove that his document did not refer to Rosh Chodesh Nisan (in which case, the field belonged to him, and he had no claim against the purchaser).

(d) The only solution (for him to recoup his losses from the purchasers) - was to ask his friend to lend him his document (dated the fifth) and to write him a power of attorney, authorizing him to claim from the purchaser in his name. Then he will able to claim from the purchaser using both documents (and claiming from the later date - Rosh Chodesh Iyar).

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