KESUVOS 94 (18 Iyar, Lag b'Omer) - dedicated by Avi and Lily Berger of Queens, N.Y., in memory of Lily's father, Mr. Benny Krieger (Chananel Benayahu ben Harav Yisrael Avraham Aba), zt"l, who passed away on Lag ba'Omer 5763. Mr. Krieger exemplified Ahavas Chesed, Ahavas Torah and Ahavas Eretz Yisrael.

1)

TWO LOAN DOCUMENTS FOR THE SAME DAY [documents:competing:loans]

(a)

Gemara

1.

93b (Mishnah): If all the Kesuvos have the same date, whichever comes first, even by an hour, collects first. In Yerushalayim they used to write the hour. If all have the same hour and there is only 100 in the estate, they share it equally.

2.

(Rav): If two documents have the same date, the bearers split the property.

3.

(Shmuel): We apply Shuda (it is left to the judges' discretion).

4.

Rav holds like R. Meir, who says that the witnesses who sign on a document empower it (therefore, both documents take effect simultaneously from the date written). Shmuel holds like R. Elazar, who says that the witnesses who see a document given to the recipient empower it (therefore, only the one that was given first is valid).

5.

Question (against Shmuel - Beraisa): If two documents have the same date, they divide the property!

6.

Answer #1: The Beraisa is like R. Meir. Shmuel holds like R. Elazar.

7.

Objection (Seifa): If he wrote to Levi, and then wrote and gave over to David, David acquires.

i.

If it is like R. Meir, why does (only) David acquire? He holds that the witnesses who sign empower the document (both should acquire equally)!

8.

Answer #2: (The Beraisa is like R. Elazar.) Tana'im argue about whether division or Shuda is better;

i.

(Beraisa - Chachamim): (If Reuven sent a gift to Shimon, and Shimon died before the gift reached him and Reuven died before the gift returned,) the heirs of Reuven and Shimon divide the property;

ii.

Here (in Bavel) they said the Shali'ach does as he wants (i.e. Shuda).

9.

Bava Basra 34b (Rav Nachman): If Reuven and Shimon each claimed 'I inherited this land (or ship) from my fathers', Kol d'Alim Gavar.

10.

Question: Why is this different than two documents with the same date?

i.

(Rav): If two documents have the same date, the bearers split the property.

ii.

(Shmuel): We apply Shuda (it is left to the judges' discretion).

11.

Answer: There, we will never know which document was given first. Here, perhaps one will bring witnesses later (we do not want to give a ruling that might be overturned later).

12.

Question: Why is Rav Nachman's case different than the following?

i.

(Mishnah): Levi traded his cow for Shimon's donkey, or sold his slave to Shimon. The cow or slave (was not in front of us at the time of the sale; later, we see that it) gave birth. Levi claims that the birth was before the trade or sale (so the child was not included), Shimon claims it was after, and he acquired a pregnant mother, so the child is his). They divide the value of the child.

13.

Answer: There, each has Drara d'Mamona (grounds to suspect that it is his; alternatively, Beis Din would have a doubt even without their claims);

i.

Here, it belongs to one, the other is simply lying.

(b)

Rishonim

1.

Rif and Rosh (10:13): Rav and Shmuel discuss documents for land, e.g. purchases or gifts. If they were admissions or loans, a Mishnah (93b) teaches that they divide the money.

i.

Rebuttal (Ran 53b DH Aval): This is not a proof. Perhaps the Mishnah is R. Meir! Also, the Tana does not discuss Shuda at all. He teaches only how to divide. There are cases in which all agree that Shuda does not apply and they divide, e.g. they are for the same hour, or a Shali'ach acquired on behalf of many recipients!

2.

Rif and Rosh (45b and 9:11): If Shmuel were unlike the Mishnah, we would have challenged him from it, not from the Beraisa! Even though the Yerushalmi challenged Shmuel from the Mishnah, we rely on the Bavli. According to the Yerushalmi, that Shmuel discusses loans, the Halachah follows Rav (who says that they divide), for the Mishnah is like him. Regarding purchases or gifts, the Halachah follows Shmuel (Shuda). In Bava Basra (34b), Rav Nachman taught about two people who claim 'I inherited this from my fathers', the law is unlike two documents with the same date. We answered that there, we will never know which document was given first. We asked why Rav Nachman's law is different than we do not know whether a cow for slave gave birth before or after it was sold. We answered that there, each has Drara d'Mamona. In Rav Nachman's case, it belongs absolutely to one or the other. We did not give this answer regarding two documents. This shows that regarding two documents, there is not Drara d'Mamona for both. Rather, it belongs to one or the other. This shows that it cannot refer to loan documents. Also, if Levi borrowed money from different people on different dates and later bought property, they divide, it, for both had a lien on it. The same applies to two documents on the same day regarding property the borrower already owned!

3.

Rosh (10:13): Liens take effect from the time that is Muchach (we know that the document was written before this), i.e. the day after the date. It is not Muchach on the date, for we do not know if it was written in the morning or afternoon.

i.

Hagahos Ashri: R. Baruch says that even though the Halachah follows Shmuel against Rav in monetary matters, here the Halachah follows Rav because we hold that when there is a doubt, we divide the money. The Yerushalmi says that the Mishnah of three Kesuvos opposes Shmuel.

4.

Rambam (Hilchos Malveh 20:3): If there are documents for the same day, if one of them collected, whether land or Metaltelim, he acquired.

i.

Rebuttal (Ra'avad): What is his source? Chachamim say that they divide! We never find that they said 'or whoever collects first acquires'!

5.

Rosh (9:11): We say that collection of a later creditor is invalid. If the liens started together, collection is valid. R. Yonah proves that collection helps only in Beis Din. If a buyer improved land, he has a lien on the Shevach (improvements) to collect Acharayos (if a creditor will take the land). Even though he holds the Shevach, the creditor takes half of it, because the buyer did not get it through Beis Din. This proof is valid for land, but collection of Metaltelim helps even if it was not in Beis Din.

(c)

Poskim

1.

Shulchan Aruch (CM 104:8): If there are many creditors for the same day, or the same hour in a place where they write hours, no one has precedence for collection. Whoever collects first acquires, whether land or Metaltelim.

i.

Question (Shach 17): The Shulchan Aruch rules like the Rif (the start of the lien depends only on the date, from when it is Muchach. If it was given beforehand, this is like a Milveh Al Peh.) The Shulchan Aruch gives precedence to an earlier Milveh Al Peh. Why does he say that there is no precedence? (The Prishah (9) asks similarly against the Tur.)

ii.

Answer #1 (Ketzos ha'Choshen 13 DH v'Od): The Shulchan Aruch holds that Shuda is whom we suspect the giver favored. There is no Shuda regarding loans, for people borrow even from people they do not love (Ran 44a).

iii.

Answer #2 (R. Akiva Eiger): One answer in Tosfos says that they divide lest people be discouraged from lending. The Pnei Yehoshua says that since there is Drara d'Memona, letter of the law division is better. Further, the Shulchan Aruch does not hold that the lien begins from when it is Muchach. (In 43:23, if Yosef's document was dated only 'Nisan', we say 'perhaps it was from Nisan 1, and Kalev (whose document says 'Nisan 5') collected before him improperly. We do not say that Yosef's lien does not begin until Iyar!

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