Ketubot 94b (צד:) — the Talmud in English

And

if

Shmuel, who says

that shuda de-dayyanei is preferable to division, holds

in accordance with Rabbi Elazar, who says that the witnesses to the delivery

of the bill of divorce

effect its validity.

The dispute between Rabbi Meir and Rabbi Elazar applies to a bill of divorce, and likewise to the other documents: Is the signature of the witnesses on the bill of divorce or on the document the essential element, as it is what gives the bill of divorce or the document its validity? Or perhaps the witnesses to the delivery of the bill of divorce or document are the essential element, since they are the ones who give it its validity; for it is only at the time of delivery of the bill of divorce to the woman, or of the deed of sale to the buyer, that the recipient acquires the validity of the bill of divorce or document. The witnesses sign the bill of divorce or document only for the betterment of the world, in case witnesses to the delivery will not be present.

Rav held that the signatures of the witnesses on the document are the essential element of the document. Therefore, he held that they divide the field, since, as the time was not written in the document, the rights of both are equal in the field by virtue of the document held by each of them, which was signed by the witnesses on the same day.

Whereas Shmuel held that delivery of the document in the presence of witnesses to the delivery is the essential element. Consequently, when he delivered the document in the presence of witnesses to the first buyer, his acquisition took effect, and only he has rights to the field; whereas the second buyer acquired nothing at all. The signed document held by the second buyer has no significance, because the signed document cannot be more effective than witnesses to the delivery.

And since it is not known which of the two received the document first, we say shuda de-dayyanei, which is preferable to division, because through division the first buyer would certainly lose half of his share. We must assume that the seller intended to transfer his field to the one who was dearer to him, and therefore delivered the document to him first, while deceiving the other.

And the Gemara rejects this:

No

this is not the issue over which Rav and Shmuel disagreed!

Rather,

everyone

holds

in accordance with Rabbi Elazar,

who holds that the witnesses to the delivery effect the document’s validity, and everyone concedes his position with regard to a bill of divorce.

And here,

with regard to two deeds of sale issued on the same day for the same field, where there is reason to say shuda and reason to say that they divide,

this is the issue over which they disagree:

Rav holds that division is preferable

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

And Shmuel holds that shuda de-dayyanei is preferable

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

And we challenge this:

Can you establish that Rav follows Rabbi Elazar?

But Rav Yehuda said that Rav said: The halakha is in accordance with Rabbi Elazar with regard to bills of divorce!

And

when I stated

these words of Rav

before Shmuel, he said

that the halakha is in accordance with Rabbi Elazar, that the witnesses to the delivery are the essential element,

even with regard to documents.

By inference

you learn

that Rav holds

that

with regard to documents, he does not

say that the halakha is in accordance with Rabbi Elazar. How, then, did we establish that Rav follows Rabbi Elazar here, with regard to documents?

Therefore, the Gemara retracts and says:

Rather, it is clear,

it is clear that

Rav follows Rabbi Meir

with regard to documents, but not with regard to bills of divorce.

And Shmuel follows Rabbi Elazar,

whose ruling applies even to documents.

The following beraita raises an objection

to Shmuel: It was taught:

Two deeds of sale

for the sale of a field

issued on the same day

for one field

are divided!

This is a conclusive refutation of Shmuel!

Shmuel could have said to you: This

beraita,

whose opinion is it? It is

in accordance with the opinion of

Rabbi Meir,

and according to him one cannot say shuda, since the rights of both are equal in the field; whereas I hold in accordance with Rabbi Elazar.

But the Gemara continues to challenge this:

Come and hear the latter clause

of the beraita:

If he wrote

a document

for one

but did not deliver it to him,

and

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, then

the one to whom he delivered

the document first is the one who

acquired the field.

And if it is

the opinion of Rabbi Meir,

why did only the second acquire

the field?

But did

Rabbi Meir not say

that the witnesses to the signing effect the document’s validity? According to him, the rights of both should be equal! Rather, the beraita must be in accordance with the opinion of Rabbi Elazar, and it is evident from the first clause that division is preferable to shuda, contrary to Shmuel!

and according to him both purchasers have equal rights! Rather, the teaching must be according to Rabbi Elazar, and its first clause proves that dividing the property is preferable to the judge’s discretion, contrary to Shmuel!

Rather, the Gemara answers:

It is a dispute between tanna’im,

who disagreed over whether shuda is preferable or division, and Shmuel follows the one who says that shuda is preferable.

As it was taught:

In the case of one who sent a maneh to another, and the agent went but did not find him, as 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 Eretz Yisrael

say: They divide it! And here

in Babylonia

they said: Whatever the third party wishes

the agent

shall do, according to his judgment; that is, shuda!

The mother

of

Rami bar Ḥama

had property.

She wrote it

in a document

to transfer the property to Rami bar Ḥama—

in the morning,

in the morning.

In the evening,

toward evening, on that same day,

she wrote

the property in a document

to Mar Ukva.

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

Rami bar Ḥama came before Rav Sheshet

with his document, and

he established him

and Rav Sheshet placed him

in possession of the property,

of the property.

Mar Ukva came before Rav Naḥman, and he established him

Rav Naḥman placed Mar Ukva

in possession of the property.

Rav Sheshet came before Rav Naḥman

and

said to him,

Rav Sheshet said to Rav Naḥman:

Why did the Master do this,

placing Mar Ukva in possession of the property after I had placed the property in the possession of Rami bar Ḥama?

He said to him,

Rav Naḥman said to Rav Sheshet:

And why did the Master do this,

placing the property in the possession of Rami bar Ḥama?

He said to him,

Rav Sheshet said: Because

he preceded

in writing his document, as it was written in the morning!

He said to him,

Rav Naḥman:

Does that mean

that

we sit in Jerusalem,

where we write the hours

of the sale in the document? Since the hours are not written in a document, the fact that the document was written earlier does not give the first one precedence over the second on the same day!

And Rav Sheshet continued to ask:

But as for the Master, why did he do this,

placing it in the possession of the second rather than saying that they should divide it?

He said to him,

Rav Naḥman:

I applied shuda de-dayyanei,

because I hold that the second was dearer to her and that she delivered the document to him first, and I rule in accordance with Rabbi Elazar, that the witnesses to the delivery effect the document’s validity!

He said to him,

Rav Sheshet:

I too,

my decision to place it in the possession of the first is in accordance with

“shuda de-dayyanei”,

since the judge’s decision is determinative [and he may decide according to his judgment]; and since I placed the property in the possession of Rami bar Ḥama, he acquired it by virtue of shuda de-dayyanei, and you cannot remove it from his possession.

He said to him,

Rav Naḥman said to Rav Sheshet:

First, I am a judge,

by authority of the Exilarch and the academy,

whereas the Master is not a judge

at all.

And furthermore, from the outset,

it is the case that

you did not come to her on this basis [that is, you did not place the property in Rami bar Ḥama’s possession by virtue of shuda de-dayyanei]; rather, you erred and placed it in his possession because his document was signed earlier. That is not correct, since we do not write the hours here!

[you did not establish the property in Rami bar Hama’s possession by exercising the judge’s discretion]; rather, you made a mistake and established it in his possession because his document was signed earlier. That is not correct, since the hours are not written here!

There were these two deeds

of sale for the same field

that came before Rav Yosef.

One was dated the fifth of Nisan, and one was dated simply “Nisan.”

Rav Yosef placed that man

who held the document

dated the fifth of Nisan in possession of the property.

The other said to him: But I,

why should I

lose out!?

He said to him: You,

whose document does not contain the day of the month of Nisan,

have the inferior claim,

because

perhaps it means the twenty-ninth of Nisan!?

He said to him:

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!