ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf 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?
(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.
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.
(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
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
(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).