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) "SHUDA" VERSUS "CHALUKAH"
OPINIONS: The Gemara discusses a case in which two people are each holding a Shtar Mechirah (deed of sale) for the purchase of the same field from the same seller. Both Shtaros were written on the same day, and each person holding a Shtar claims that he is the recipient of the field. Obviously, however, the field was sold to only one of them. Rav and Shmuel disagree about how Beis Din is to resolve the conflict. Rav says "Cholkin" -- Beis Din is to split up the property among the two claimants. Shmuel says that "Shuda d'Dayanei" is preferable -- the judges decide to whom to give the entire field.
The Gemara concludes that Rav, who rules that the field is divided, follows the view of Rebbi Meir who states that "Edei Chasimah Kartei," the witnesses who sign the Shtar make the Shtar take effect. Shmuel, who rules that the field is given to whomever the judges decide, follows the view of Rebbi Elazar who states that "Edei Mesirah Kartei," the witnesses who witness the Shtar as it is delivered to the recipient make the Shtar take effect.
Shmuel's opinion is easy to understand. Since Shmuel maintains "Edei Mesirah Kartei," whichever Shtar was delivered first to its recipient is the valid Shtar. When the second Shtar was given afterward to someone else, it did not represent a valid sale because the property did not belong to the original owner and was not his to sell. However, it is not known which Shtar was given first, and there is no way to know from the text in the Shtaros themselves which of the two was given first. Since neither party is able to prove that his Shtar was given first, the judges must decide the case on their own. Their options are either to split the property between the two claimants out of doubt, or to choose one of the two claimants and give the entire field to him.
(The Rishonim disagree about how the judges "choose" ("Shuda") one of the claimants to whom to give the entire field. Rashi explains that "Shuda d'Dayanei" means that the judges choose to whom to give the property in question by trying to determine, based on logical considerations, to whom the seller would have preferred to give the field. Tosfos (85b, DH Shuda, and 94b, DH Leima) disagrees with Rashi and says that "Shuda d'Dayanei" means that the judges give the field to whomever they please. They need not base their decision on whom they think the seller preferred, but rather they base their decision on whatever considerations they deem appropriate, such as which of the two claimants needs the property more, or which of the two is a Talmid Chacham.)
The Gemara understands, at this point, that it generally is preferable to resolve the case with "Shuda d'Dayanei" rather than to split the property, because by using "Shuda d'Dayanei" there is at least a possibility that the correct person will receive the entire field. Therefore, according to Shmuel, the judges give the entire field to one of the two claimants.
What, though, is the reasoning behind Rav's opinion, that the property is to be divided because of "Edei Chasimah Kartei"? "Edei Chasimah Kartei" means that the primary testimony on a Shtar which effects the legal transfer of property is the signatures of the witnesses in the Shtar. A Shtar which attests to the transfer of property but contains no signatures of witnesses is worthless. Why, though, should that affect the Halachah in this case? As far as the transfer of the property is concerned, the first Shtar which was actually delivered to the recipient should be the one which makes the sale take effect. Writing the Shtar alone does not cause the transferal of ownership of the field. Even if writing the Shtar alone would effect a transfer of ownership, in this case it is not known which of the two Shtaros was written first, since the hour of the writing of the Shtar is not written in the Shtar. The case should be decided with a "Shuda d'Dayanei"!
There are a number of approaches among the Rishonim to this question:
(a) RASHI explains that according to the opinion that "Edei Chasimah Kartei," any details of importance must be written in the Shtar. If the time of the Kinyan was omitted from the Shtar (that is, the witnesses who signed it did not know the time of the Kinyan and are not testifying about it), that shows that the time was not important to the buyer and seller. Therefore, the one who received the document first is not necessarily the true owner.
Who, then, is the true owner? If the Shtaros were written and delivered on the same day, which of the two Shtaros take effect first? The answer is that there is no way to know. One of the Shtaros takes effect first, but there is no way to know which one.
Since Rashi explains that "Shuda d'Dayanei" means that the judges determine to whom to give the field based on logical considerations, in this case "Shuda d'Dayanei" cannot apply -- there is no possible way to determine who the logical owner should be. (This case is comparable to a man who gives Kesef Kidushin simultaneously to five sisters and says, "One of you five shall be Mekudeshes to me"; one of them becomes Mekudeshes but it is impossible to know which one.) Since "Shuda d'Dayanei" cannot be done, the only option which remains according to Rav is to split the field.
(b) TOSFOS (citing his Rebbi) and other Rishonim disagree with Rashi. They explain that "Shuda d'Dayanei" means that the judges choose the recipient based on their own preferences and not necessarily based on logical deduction. Therefore, "Shuda d'Dayanei" is applicable even in this case, when there is no logical way to determine which Shtar took effect first.
Tosfos explains that those who maintain "Edei Chasimah Kartei" rule that if a document lacks information vital to the Kinyan, the Shtar cannot create a Kinyan. Although the "Edei Mesirah" know the information, since it is not written in the Shtar the property cannot be transferred with the Shtar. The Shtaros in the case of the Gemara here did not have the time of day written in them, and thus it was impossible to determine based on the Shtar whether the Kinyan was made earlier or later in the day. The only thing that can be determined based on what was written in the Shtar is that the Kinyan was made before the last second of the day. Therefore, the Shtar will create a valid Kinyan only at the end of the day, regardless of what point in the day it was actually delivered.
Accordingly, if there are two Shtaros that have the same day written in them (with no time written in them), they both take effect at the same moment (i.e. at the last moment of the day) regardless of when they were delivered. Since they take effect at the same moment, each recipient legally owns half of the field and they become partners in the ownership of the field. This is why Rav says that the field is to be divided. There is no doubt whatsoever as to who owns the field, for they both own the field!
The RITVA questions this approach of Tosfos based on the Gemara in Gitin (17b). The Gemara there clearly says that if a Get contains an ambiguous date (such as the month without the day of the month), the Get takes effect at the time at which it is given, and not at the last moment of the month. (Tosfos must maintain that the Gemara there follows the opinion of Rebbi Elazar, that "Edei Mesirah Kartei.")
(c) RABEINU TAM (also cited by Tosfos) gives an entirely different approach. Rabeinu Tam says that a "Shuda" is better than splitting the property only when it is impossible for the field to actually belong to both parties. In such a case, if the field is divided equally, it will look strange when Beis Din splits the property when everyone knows that it cannot belong to both parties. On the other hand, if there is even a remote possibility that the property belongs to both parties, it is better to split the property than to give to one of them the entire property based on the judges' choice. People who see it split will assume that the judges investigated the matter and decided that the remote possibility was the truth. This is a better alternative than "Shuda," which leaves the ownership of the field dependent upon the whims of the judges.
As explained earlier, according to the opinion that "Edei Mesirah Kartei" the first one to receive the Shtar is the true owner. For all practical purposes it is impossible for the two Shtaros to have been delivered at the same moment to both parties. The seller, who obviously is trying to fool one of the recipients by selling or giving him a field that is not his, would not dare to give it to one party in front of the other, for they would immediately realize his deceitfulness. Rather, he gives the first Shtar to one recipient, and then, at a later time and after the first one has left, he gives the second Shtar to the second recipient.
Since no possibility exists that the Shtaros were given at the same time, it is not possible that both recipients own the property. Only one recipient can own the property. Therefore, the preferred ruling is "Shuda d'Dayanei."
However, according to Rav who rules "Edei Chasimah Kartei," since the writing and signing of the Shtar is the primary act which accomplishes the Kinyan, when the seller delivers the Shtaros to the recipients he probably has in mind at that time that they should take effect only in the order in which they were written. Even if the Shtar that was written second is given over first, it does not transfer the field to the recipient because the seller intended that it take effect after the other Shtar, which was written first, takes effect. If the two Shtaros were written at the same moment (such as when they were signed by different witnesses), regardless of which one is delivered first both Shtaros take effect at the same moment; the property becomes acquired by both of the recipients, and each one receives half of the property.
Rabeinu Tam asserts that there exists a possibility that both Shtaros were signed by different witnesses in different places at the same moment, so that the seller's plot was not revealed. Moreover, even if the second Shtar was signed by the same witnesses who signed the first Shtar, as long as they signed the second Shtar while the seller was still involved in the proceedings of the first Shtar ("Asukim b'Oso Inyan"), it is considered as if both were signed at the same moment. Since there is a possibility that the Shtaros were signed simultaneously and that the property actually belongs to both recipients, it is better to split it than to leave it to the judges' discretion.
(d) The RITVA explains that the question of whether "Shuda d'Dayanei" or "Chalukah" is preferable is simply a matter of statistical probability. He explains that Rebbi Elazar ("Edei Mesirah Kartei") and Rebbi Meir ("Edei Chasimah Kartei") disagree about a Shtar delivered on the day after it is written. If "Edei Mesirah Kartei," the date written in the Shtar is irrelevant to the Kinyan. The Kinyan takes place at the time at which the Shtar is delivered. Consequently, if the Shtar is delivered after the date written in the Shtar, the Shtar is invalid because it is a Shtar Mukdam (pre-dated; see Insights to Rosh Hashanah 2:2).
According to those who say "Edei Chasimah Kartei," the moment the date of the Shtar arrives the Shtar is considered to have been delivered through the principle of "Edav b'Chasumav Zachin Lo" -- witnesses, through the act of signing the Shtar, make the Shtar take effect (Bava Metzia 13a). If only the day, but not the hour, is written in the Shtar, the Shtar takes effect at the last moment of that day, whether or not it has been delivered. Therefore, regardless of when it is eventually delivered, it is not a Shtar Mukdam. In summary, if "Edei Chasimah Kartei," there are two ways to transfer ownership through the Shtar: either by delivering the Shtar or by writing the time in the Shtar and waiting for the time of the Shtar to arrive.
When two Shtaros are written with the same date, there exists four possibilities as to when they were delivered: 1. They were delivered to both recipients simultaneously on the same day they were written. 2. They were delivered one after the other on the same day they were written. 3. They were delivered to both recipients simultaneously on a day after the day on which they were written. 4. They were delivered one after the other after the day on which they were written.
If "Edei Chasimah Kartei," in three of these four possibilities the field belongs to both of the claimants. Only if the Shtaros were delivered to the two claimants one after the other on the same day on which they were written does the first recipient acquire the field. If the Shtaros were delivered at the same time on the day they were written, or if they were delivered on a later day (whether at the same time or one after the other), they both take effect at the same time because "Edav b'Chasumav Zachin Lo." Therefore, it is better to split the field since three out of the four possibilities point to joint ownership of the field.
If, on the other hand, "Edei Mesirah Kartei," when the Shtaros were given on a later day they are invalid (and thus two of the four possibilities are not taken into consideration). Rather, it is assumed that the Shtaros were given on the day they were written, and thus there remain two possibilities: they were given to the recipients simultaneously (in which case they both own the field), or they were given one after the other (in which case the first recipient owns the field). Of the two possibilities, it is more probable that they were given one after the other. Therefore, "Shuda d'Dayanei," giving all of the property to one person, is preferable to splitting the property.

94b----------------------------------------94b

2) WHO IS AUTHORIZED TO MAKE A "SHUDA?"
QUESTION: The Gemara demonstrates that even according to Rebbi Elazar who maintains "Edei Mesirah Kartei," it is not obvious that "Shuda d'Dayanei" is better than "Chalukah." There is a Tana who rules that in any case of doubt, it is preferable to split the property. The Gemara proves this from a Beraisa which discusses a case in which a man sent a gift of money to his friend via a Shali'ach. The Shali'ach found that the friend had died, and upon his return with the money he found that the person who sent him had also died. The Gemara (Gitin 14b) asks who receives the money -- the heirs of the sender or the heirs of the recipient?
In that case there is no Shtar, and thus the factor of "Edei Mesirah Kartei" or "Edei Chasimah Kartei" is not relevant. Nevertheless, there is a Machlokes Tana'im what should be done with the money. The Chachamim say that it should be divided among the heirs of both parties, and in Bavel they ruled that the Shali'ach may give it to whomever he wants, which is comparable to "Shuda." (Rashi there explains that the Shali'ach does not give the money randomly to one or the other, but rather he gives it to the one to whom he thinks the sender would have most likely wanted the money to go; this is consistent with his explanation of "Shuda" in the Gemara here. See beginning of previous Insight.) The Gemara here says that this shows that there is a Machlokes Tana'im which is preferable, "Shuda" or "Chalukah," even in a case where "Edei Chasimah Kartei" is not relevant.
The Gemara later discusses a dispute between Rav Sheshes and Rav Nachman with regard to two Shtaros, written for the same field, given to two recipients. Rav Nachman tells Rav Sheshes that he is not qualified to make a "Shuda d'Dayanei," "because I (Rav Nachman) am a Dayan, and you (Rav Sheshes) are not a Dayan."
It seems from Rav Nachman's statement that only a Dayan may make a "Shuda." If this is true, why does the Gemara here say that the Shali'ach -- who is not a Dayan -- is entrusted to make a "Shuda" and distribute the money to whomever he deems appropriate?
ANSWERS:
(a) The RITVA and others prove from the case of the Shali'ach that it is not necessary to be a Dayan to perform a "Shuda." Rav Nachman means that he is the local Dayan, and his "Shuda" overrides a visiting Dayan's "Shuda."
Similarly, the HAGAHOS ASHIRI explains that Rav Nachman means that he is a greater, more expert Dayan, because he received authorization from the Reish Galusa to judge, and therefore his "Shuda" should override Rav Sheshes' "Shuda." (See also Rashi DH Ana Dayana.)
(b) Other Rishonim (RABEINU CHANANEL as cited by Tosfos DH Imei and in Kidushin 74a, DH Shuda) rule that only an established, expert Dayan like Rav Nachman may perform a "Shuda." (Rabeinu Chananel apparently maintains that "Shuda" is not a logical means of determining who the true owner is (as Rashi explains). Rather, it is a "Dayan's choice." An expert Dayan is entitled to choose the recipient based on considerations not directly related to the question at hand.) Why, then, in the case of the Shali'ach was the Shali'ach entitled to give the money to whomever he chose?
It seems that since the money was given to the Shali'ach willingly and is now in his hands, he has the authority to give it to whomever he deems appropriate. If, on the other hand, the money is not in the hands of a third party (such as in a dispute regarding the ownership of land, or when the two disputants are both holding the property), Beis Din must decide what to do with it, and they must do justice and cannot give it to the wrong person. Consequently, the only thing they can do is "Shuda d'Dayanei." Since "Shuda d'Dayanei" works through the mechanism of "Hefker Beis Din Hefker," only an expert Dayan may make a "Shuda," just as only an expert Dayan may make another person's property Hefker.

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