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Babylonian Talmud: Tractate Kethuboth

Folio 94a

[Their dispute relates to a case,] for instance, where It was found that one of the fields1  did not belong to him,2  their point of difference3  being the question [of the legality of the action] of a creditor of a later date who forestalled [one of an earlier date] and distrained [on the debtor's property]. The first Tanna holds that such distraint has no legal validity,4  and Ben Nannus holds that whatever he distrained on is legally his,5  R. Nahman in the name of Rabbah b. Abbuha replied: Both6  agree that the distraint [of a creditor of a later date] has no legal validity,7  but here they differ on the question whether provision is to be made against the possibility that [the fourth woman might] allow the ground to deteriorate. One Master8  is of the opinion that provision is to be made against the possibility that she9  might allow the ground10  to deteriorate,11  and the other Master is of the opinion that no provision need be made against such a possibility. Abaye replied: The difference between them6  is the ruling of Abaye the Elder who stated: The 'orphans' spoken of12  are grown-ups and there is no need to say that minors13  [are included].14  The first Tanna15  does not hold the view of Abaye the Elder while Ben Nannus upholds it.16

R. Huna stated: If two brothers or two partners had a lawsuit17  against a third party18  and one of them went with that person to law,19  the other20  cannot say to him,21  'You are not my party'22  because23  [the one who went to law] acted on his behalf also.24

R. Nahman once visited Sura25  and was asked what the law was in such a case.26  He replied: This is [a case that has been stated in] our Mishnah: THE FIRST MUST TAKE AN OATH [IN ORDER TO GIVE SATISFACTION] TO THE SECOND, THE SECOND TO THE THIRD AND THE THIRD TO THE FOURTH, but it was not stated, 'the first to the third'. Now, what could be the reason?27  Obviously28  because [the second] has acted on her behalf also.

But are [the two cases] alike? In the latter,29  an oath for one person is the same as an oath for a hundred,30  but in this case31  he32  might well plead, 'Had I been present I would have submitted more convincing arguments'.33  This,34  however, applies only when he32  was not In town [when the action was tried] but if he was in town [his plea is disregarded, since if he had any valid arguments] he ought to have come.35

It was stated: If two deeds36  bearing the same date37  [are presented in court,38  the property in question],39  Rab ruled, should be divided [between the two claimants], and Samuel ruled: [The case is to be decided at] the discretion of the judges.40  Must it be assumed that Rab follows the view Of R. Meir who holds that the signatures of the witnesses make [a Get] effective,41

Original footnotes renumbered. See Structure of the Talmud Files
  1. Which the first three women had taken in payment of their respective kethubahs.
  2. I.e., it was found that the deceased husband had taken it by violence from a person who might appear at any moment to claim it, and any one of the three wives, that might thus be deprived of her field, would ultimately proceed 10 make her claim against the field that had been reserved for the fourth wife.
  3. In arguing the question whether the fourth woman may be asked by one of the other women to take an oath that she had not already collected her kethubah during the lifetime of their husband,
  4. And the creditor who holds the earlier-dated bond may consequently distrain on that property. Similarly in the case of the kethubah spoken of in our Mishnah, as that of the fourth woman bears the latest date, any of the other women, being in the position of earlier creditor, may distrain on her field wherever she is deprived of the field that had been allotted to her. And since the fourth may thus be deprived of her field by any of the others at any time there is no need to make sure of her claim by the imposition of an oath, and she, consequently, RECEIVES PAYMENT WITHOUT AN OATH.
  5. As the fourth woman (cf. supra note I) could not consequently be deprived of her field once it has been allotted to her SHE ALSO MAY NOT RECEIVE PAYMENT EXCEPT UNDER AN OATH.
  6. Ben Nannus and the first Tanna.
  7. Against the claims of an earlier creditor,
  8. Ben Nannus.
  9. The fourth woman.
  10. That has been allotted to her.
  11. If no oath were imposed upon her she would realize that her tenure of the property may only be temporary and would consequently exploit it to the full and neglect its amelioration. Hence the ruling that she also must take an oath before she receives payment.
  12. In the Mishnah supra 87a and Shebu. 45a: From orphans' property she cannot recover payment except on oath. (Cf. Mishnah Git, 48b: Payment from orphans can be received only from the poorest land).
  13. Who require greater protection.
  14. Cf. Git. 50a, Shebu. 47b.
  15. Who exempts the fourth woman from the oath.
  16. Our Mishnah does not refer to the particular case which Samuel mentioned and the oath is imposed upon the fourth woman as a protection of the orphans and not vis-_-vis the other women,
  17. In connection with their joint ownership.
  18. Lit., 'one'.
  19. And lost his case.
  20. Brother or partner.
  21. The third party.
  22. And so demand a new trial on his share.
  23. Lit., 'but'.
  24. Lit., 'he did his mission'.
  25. V. supra p. 383, n. 7'
  26. Dealt with by R. Huna.
  27. For exempting the first from taking an oath vis-_-vis the third.
  28. Lit., 'not?'
  29. Lit., 'there', that is our Mishnah.
  30. Once the woman has declared on oath that her husband had not paid her kethubah, her claim to it is established irrespective of the number of women who plead that she may have been paid by her husband.
  31. Lit., 'here'.
  32. The brother or partner who was not present at the trial.
  33. Which would have enabled him to win his case. Our Mishnah, therefore, provides no answer to the enquiry addressed to R. Nahman.
  34. That the plea, 'Had I been present etc.' is admissible.
  35. To court,
  36. Of a sale or a gift relating to the same property.
  37. Lit., 'coming forth in one day'.
  38. As the hour at which a deed was executed was not usually entered (except in Jerusalem) it cannot be determined which of the deeds is the earlier and which is the later document.
  39. I.e., the property of the donor or seller respectively which the holders of the deeds claim.
  40. [H], v. supra p. 541. n. 12. The judges are empowered to give their decision in favour of the claimant who in their opinion deserves it (so Rashi and R. Tam, Tosaf. B.B. 350 s.v [H[) According to Rashb. (B.B. loc. cit.) the judges estimate which of the two claimants the seller or donor was more likely to favour. This may also be the opinion of Rashi (cf. infra 94b s.v. [H] ad fin).
  41. Git. 3b. Lit., 'the witnesses of the signature cut (the marriage union)'. In the ease of a deed, too. the validity should begin on the date the signatures were attached. And since the two deeds bear the same date and no hours are specified (cf. supra p. 597, n. 22) the two should have the same force and there can be no other alternative but that of dividing the property equally between the two claimants.

Kethuboth 94b

and that Samuel follows the view of R. Eleazar who holds that the witnesses to the delivery [Of a Get] make it effective?1  — No, all2  follow the view of R. Eleazar,3  but it is the following Principle on which they differ here. Rab is of the opinion that a division [between the claimants] is preferable and Samuel holds that [leaving the decision to] the discretion Of the judges is prefer. able. But can you maintain that Rab follows the view Of R. Eleazar? Surely, Rab Judah stated in the name of Rab, 'The halachah is in agreement with R. Eleazar in matters Of divorce' [and he added.] 'When I mentioned this in Samuel's presence he said: "Also in the case of other deeds". Does not this then imply that Rab is of the opinion that in the case Of deeds [the halachah is] not [in agreement with R. Eleazar]?' Clearly. Rab follows the view Of R. Meir and Samuel that of R. Eleazar.

An objection was raised: 'If two deeds4  bearing the same date [are produced in court, the property In question] is to be divided. Is not this an objection against Samuel?5  — Samuel can answer you: This represents the view of6  R. Meir but I follow the view of R. Eleazar.7

But if this8  represents the view of R. Meir, read the final clause: 'If he9  wrote [a deed] for one man10  [and then he wrote a deed for,] and delivered it to another man, the one to whom he delivered [the deed] acquires legal possession'. Now if [this8  represents the view of] R. Meir why does he acquire possession? Did he not, in fact, lay down that the signatures of the witnesses11  make [a Get] effective?12  — This13  [is a question which is also in dispute between] Tannaim.14  For it was taught: And the Sages say [that the money]15  must16  be divided,17  while here18  it was ruled that the trustee19  shall use his own discretion.20

The mother of Rami b. Hama21  gave her property in writing to Rami b. Hama in the morning, but in the evening she gave it in writing to Mar 'Ukba b. Hama.22  Rami b. Hama came before R. Shesheth who confirmed him in the possession of the property. Mar 'Ukba then appeared before R. Nahman who Similarly confirmed him in the possession of the property. R. Shesheth, thereupon, came to R. Nahman and said to him, 'What is the reason that the Master has acted in this way?' 'And what is the reason', the other retorted, 'that the Master has acted in that way?' 'Because', the former replied, '[Rami's deed was written] first',23  'Are we then', the other retorted, 'living in Jerusalem where the hours are inserted [in deeds]?'24  'Then why [the former asked] did the Master act in this way?'25  '[I treated it,] the other retorted, [as a case to be decided] at the discretion of the judges'.26  'I too'' the first said, '[treated the case as one to be decided at] the discretion of the judges',27  'In the first place' the other retorted, 'I am a judge28  and the Master is no judge, and furthermore, you did not at first come with this argument',29

Two deeds [of sale]30  were once presented before R. Joseph, one being dated,31  'On the fifth of Nisan',32  and the other was vaguely dated, 'In Nisan'. R. Joseph confirmed the [holder of the deed which had the entry,] 'fifth of Nisan' in the possession of the property. 'And I', said the other, 'must lose?' 'You', he replied, 'are at a disadvantage, since it may be suggested that your deed was one that was written33  on the twenty-ninth of Nisan'34  'Will, then, the Master', the other asked, 'write for me

Original footnotes renumbered. See Structure of the Talmud Files
  1. Cit. 9b. The date of the signatures is immaterial. Since, therefore, it is possible that the donor or seller has delivered the one deed before he delivered the other, the judges must use their discretion in deciding which of the two claimants was the more likely to have been favoured by the deceased.
  2., 'all the world', Rab and Samuel.
  3. Since his ruling is the accepted law (cf. Cit. 86b).
  4. V. supra p 597' nn. 20-23.
  5. Who maintained that it is left to the discretion of the judges to decide which of the claimants is to receive the property in dispute.
  6. Lit., 'this according to whom?'
  7. Since Samuel has Tannaitic authority for his view he may well differ from R. Meir.
  8. The Baraitha, the first clause of which has been quoted.
  9. The seller or donor.
  10. To whom, however, he did not deliver it until a later date (v. infra n. 7).
  11. Not the delivery of the document.
  12. And since the first deed was signed before the other, the holder of that deed should have acquired possession despite the fact that it was delivered to him after the second deed had been delivered to the other man. The Baraitha must consequently represent the view of R. Eleazar who, as is evident from the first clause, also upholds the ruling that the property in dispute must he divided, How then, in opposition to two Tannaim, could Samuel (cf. supra p. 598' n. 7) maintain his view?
  13. The point in dispute between Rab and Samuel,
  14. Cf. supra n. 2.
  15. Which a man sent through an agent to a certain person who, however, died before the agent could deliver It to him (v. Cit, 14b).
  16. If on returning the agent found that the sender also had died,
  17. Between the heirs of the sender and the heirs of the payee.
  18. In Babylon.
  19. [H] lit., 'the third party', I.e., the agent through whom the money was sent. The parallel passage (Git. 14b) reads, [H] 'the messenger. Colds, suggests that [H] which was an abbreviation for [H] was here wrongly read [H].
  20. A ruling which is based on the same principle as that of Samuel's in respect of the judges. The ruling of the Sages is followed by Rab while that adopted by the Rabbis in Babylon is followed by Samuel,
  21. Cf. B.B. 151a where an incident involving the same characters is recorded. The circumstances, however, are not exactly identical and the arguments involve totally different principles. The two records (v. Tosaf. [H]) obviously deal with two different incidents.
  22. And it was not known to which of the two the deed was delivered first.
  23. In the morning, while that of his brother was written in the evening.
  24. Of course not. Since in Babylon no hours were entered in deeds it is obvious that, in accordance with the usage of the place. if two deeds were written on the same day no preference is to be given to one because it was written a few hours earlier than the other, Rami, therefore, can claim no preference over Mar 'Ukba.
  25. Since both deeds have the same force the property should have been equally divided between Rami and Mar 'Ukba. Why was it all confirmed in the possession of the latter?
  26. I.e..following the ruling of R. Eleazar that it is the witnesses to the delivery that render a deed effective, he estimated that it was Mar 'Ukba, for whom his mother had been known to have had greater affection, to whom his deed had been delivered first.
  27. And since his decision was given first, R. Nahman should not have reversed it by relying merely on his own discretion,
  28. Appointed by the Exilarch and the academy (Rashi).
  29. He did not at first contend that he treated the case as one that was dependent on the discretion of the judges but submitted that Rami was entitled to the property because his deed was written first. As this submission was erroneous, since outside Jerusalem no hours were entered in deeds and the case was not tried in Jerusalem but in Babylon, his decision could well be reversed.
  30. Both relating to the same field that was sold under a guarantee for indemnification.
  31. Lit., 'written'.
  32. The first civil month in the Hebrew calendar corresponding to March-April.
  33. Lit., 'son of'.
  34. I.e., the last day of the month. Hence the priority of the claim of the holder of the presumably earlier deed.