Ketubot 94b — the Talmud in English

And

if

Shmuel, who says

shuda de-dayanei is preferable to division, since he holds

like Rabbi Elazar, who says that the witnesses of delivery

of the bill of divorce

are determinative.

The dispute between Rabbi Meir and Rabbi Elazar is concerning a bill of divorce, and likewise concerning the other documents: whether the signatures of the witnesses on the bill of divorce or on the document are the principal matter, for they are what give the bill of divorce or the document its validity; or perhaps the witnesses of the delivery of the bill of divorce or the document are the principal matter, because they are the ones who give it its validity, since it is only at the time of the delivery of the bill of divorce to the woman or of the sale document to the purchaser that the recipient of the document acquires the validity of the bill of divorce or of the document. And the witnesses sign the bill of divorce or the document only for the betterment of the world, in case there will not be witnesses of delivery here.

Rav held that the signatures of the witnesses on the document are the principal matter of the document, and therefore he held: they divide it, since once the hour was not written in the document, the hand of both of them is equal regarding the field by virtue of the document in the possession of each one, which was signed by the witnesses on that day.

But Shmuel held that the delivery of the document in the presence of witnesses of delivery is the principal matter, and it follows that when he delivered the document in the presence of witnesses to the first purchaser, his acquisition took effect, and only he has power over the field, whereas the second did not acquire at all, and the signed document in the possession of the second has no significance, because the signed document cannot be more than witnesses of delivery.

And since it is not known which of the two received the document first, we say shuda de-dayanei, which is preferable to division, because through division the first purchaser will certainly lose half of his share. And we must assume that the seller’s intention was to transfer his field to the one who was dear to him, and he hastened to deliver the document to him, while he deceived the other.

And the Gemara rejects:

No

was this the matter over which Rav and Shmuel disagreed!

Rather,

everyone

holds

like Rabbi Elazar,

who holds that the witnesses of delivery are determinative, and everyone agrees with his words concerning a bill of divorce.

And here,

concerning two sale documents issued on one day, where there is grounds to say shuda and there is grounds to say they divide it,

in this they disagree:

Rav holds that division is preferable

to shuda, because at least the true purchaser will receive half.

And Shmuel holds that shuda de-dayanei is preferable

to division, because the true purchaser has a chance of receiving his entire share.

And we challenge this:

Can you establish Rav as holding like Rabbi Elazar?

But Rav Yehuda said in the name of Rav: The halakha is like Rabbi Elazar concerning bills of divorce!

And

when I stated it

these words of Rav

before Shmuel, he said

the halakha is like Rabbi Elazar, that the witnesses of delivery are the principal matter,

even concerning documents.

By inference

you learn this:

Rav holds

that

concerning documents it is not

said that the halakha is like Rabbi Elazar; and how did we establish Rav here, concerning documents, as holding like Rabbi Elazar?

And therefore the Gemara retracts and says:

Rather, it is clear,

it is clear that

Rav holds like Rabbi Meir

concerning documents, but not concerning bills of divorce.

And Shmuel holds like Rabbi Elazar,

whose view is the halakha even concerning documents.

The following beraita challenges Shmuel,

from that which was taught:

Two documents

of sale

issued on one day

concerning one field,

they divide it!

A refutation of Shmuel!

Shmuel could say to you: This

beraita

is according to whom? It is

according to the view of

Rabbi Meir,

and according to his words one cannot say shuda, since the hand of both of them is equal regarding the field, whereas I hold like Rabbi Elazar.

But the Gemara continues to challenge:

Come and say the latter clause

of the beraita:

He wrote

a document

for one,

but did not deliver it to him,

and

he wrote a document for another person, and

delivered

the second document

to

the

other person,

and only afterward delivered it to the one for whom he had written first, behold,

the one to whom he delivered

the document first is the one who

acquired it.

And if it is

according to Rabbi Meir,

why did he acquire

only the second one?

For Rabbi Meir said

that

the signing witnesses are determinative,

and according to his words the hand of both of them is equal! Rather, it is necessarily the case that the beraita is according to the view of Rabbi Elazar, and it is demonstrated from the first clause that division is preferable to shuda, and not like Shmuel!

Rather, the Gemara answers:

It is a dispute among tannaim

who disagreed on the matter whether shuda is preferable or division, and Shmuel holds like the one who says that shuda is preferable.

For it was taught:

One who sent a maneh to his fellow, and the agent went and did not find him until he had died, and the sender also died, and it is uncertain to whom the money belongs, whether to the heirs of the sender or to the heirs of the one to whom it was sent—

and the Sages

of the Land of Israel

say: They divide it! And here

[in Babylonia]

they said: Whatever the third party wishes

[the agent]

he shall do, according to what seems right in his eyes, that is, shuda!

Rami bar Hama’s

The mother

of

Rami bar Hama

had property.

She wrote them

in a document

to transfer the property to Rami bar Hama—

in the morning,

in the morning.

In the evening,

toward evening, on that same day,

she wrote them

in a document

to Mar Ukva.

But it was not known to whom she had delivered the document first.

Rami bar Hama came before Rav Sheshet

with his document, and

he established him

and Rav Sheshet established him

in the property,

in his property.

Mar Ukva came before Rav Nahman, and he established him

Rav Nahman established Mar Ukva

in the property.

Rav Sheshet came before Rav Nahman

and

said to him,

Rav Sheshet said to Rav Nahman:

What is the reason the Master acted this way,

to establish Mar Ukva in the property, after I established the property as being in the possession of Rami bar Hama?

He said to him,

Rav Nahman said to Rav Sheshet:

And what is the reason the Master acted this way,

to place the property in the hands of Rami bar Hama?

He said to him,

Rav Sheshet said: Because

he preceded

the writing of his document, which was written in the morning!

He said to him,

Rav Nahman:

Is it that

we are sitting

in Jerusalem,

that we write the hours

of the sale in the document? And since they do not write the hours in the document, the earlier writing of the document does not give precedence to the first over the second on the same day!

And Rav Sheshet continued and asked:

Rather, Master, what is the reason he acted this way

to place him in the hands of the second one and did not say that they should divide it?

He said to him,

Rav Nahman:

I carried out shuda de-dayanei, because I hold that the second one was dear to her, and she delivered it to him first, and I rule according to Rabbi Elazar, that the witnesses of delivery are determinative!

because I believe that the second purchaser was favored by the owner, and she delivered the document to him first. And I rule in accordance with Rabbi Elazar, who says that witnesses to the delivery effect the document’s validity!

He said to him,

Rav Sheshet:

I too,

let my decision to place him in the hands of the first one be like

“shuda de-dayanei,”

for it is the judge’s decision that determines [and he can decide according to what seems right in his eyes], and since I placed the property in the hands of Rami bar Hama, he acquired it by the law of shuda de-dayanei, and you cannot remove it from his possession.

He said to him,

Rav Nahman said to Rav Sheshet:

First, I am a judge,

by the authority of the Exilarch and the academy,

whereas the Master is not a judge,

he is not.

And furthermore, from the outset,

behold,

you did not come to it in this capacity

[you did not establish the property in the hands of Rami bar Hama under the principle of shuda de-dayanei], rather, you erred and placed it in his hands because of the earlier signing of his document, and this is not correct, since they do not write the hours here!

There were two documents

of sale concerning the same field

that came before Rav Yosef.

One was written on the fifth of Nisan, and one was written with Nisan stated without specification.

Rav Yosef established that one

man who had the document in his possession

of the fifth of Nisan, in the property.

The other one said to him: But I,

why

should I lose!?

He said to him: You,

since the document does not contain the date of the day in the month of Nisan,

your hand is on the lower level,

because

perhaps you mean the twenty-ninth of Nisan!?

He said to him: If so, I want to exercise my right to collect the money I paid the seller even from encumbered property, for it is written in my document that if I do not receive the field, or if it is removed from my possession, the seller is responsible for returning my money, and all his property is encumbered for this.

If so, I wish to exercise my right to collect the money I paid the seller even from liened property, since my document states that if I do not receive the field, or if it is taken from me, the seller is responsible for returning my money, and all his property is liened for this purpose!