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)

(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. What is the case?

(b)How will this explain the opinion of ...

1. ... the Tana Kama (who exempts her from swearing)?

2. ... ben Nannes (who obligates her to swear)?

(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 it. In that case, why does ben Nannes obligate the fourth wife to swear to the one whose land turns out to have been stolen?

(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. What does the Beraisa say?

1)

(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?

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.

(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. And 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.

(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; whereas according to Tana Kama, it is only to orphans who are still Ketanim, that one is obligated to swear.

2)

(a)What does Rav Huna say about one brother or partner who goes to Beis-Din with a claimant and loses the case?

(b)How did Rav Nachman try to prove this from our Mishnah, where each subsequent woman has to swear to the next one?

(c)Why is there in fact, no proof from there? What is the difference between the two cases?

(d)In which case will we accept Rav Huna's ruling in any event?

2)

(a)Rav Huna rules that if one brother or partner goes to Beis-Din with a claimant and loses the case - he acts as the Shaliach 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 Kesubah.

(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 Kesubah 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 may well be entitled to refuse to pay unless the claimant takes him to court independently.

(d)We will accept Rav Huna's ruling in any event however - if 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 Beis-Din.

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3)

(a)According to Rav, if two people produce a Shtar on the same, each one claiming that the owner sold him the field, they divide it between them. What does Shmuel say?

3)

(a)According to Rav, if two people produce a Shtar, 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 d'Dayna').

4)

(a)Rebbi Meir holds that it is the witnesses who sign on a Get who validate it. What does Rebbi Elazar say?

(b)According to Rebbi Elazar, why are witnesses then required to sign on the Get?

4)

(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 over.

(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).

5)

(a)How do we attempt to connect the Machlokes between Rav and Shmuel with that of Rebbi Meir and Rebbi Elazar. Why might Rav hold like Rebbi Meir and Shmuel like Rebbi Elazar?

(b)On what grounds do we try to reject this contention? Like whom will Rav and Shmuel hold, and what will then be the basis of their Machlokes?

(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. What had Rav told Rav Yehudah?

5)

(a)We attempt to connect the Machlokes between Rav and Shmuel with that of Rebbi Meir and Rebbi Elazar, inasmuch as - Rav holds like Rebbi Meir, who holds that the key witnesses are those who sign on the Shtar, 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 Shtar 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 d'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 d'Dayna'.

(c)It is the latter contention however, that is unacceptable, because of another statement by Rav. 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.

6)

(a)How does Shmuel initially reconcile his own opinion with the Beraisa that states 'Shnei Shtaros ha'Yotz'in b'Yom Echad, Cholkin'?

(b)What is the problem with this explanation from the Seifa, which states 'Kasav l'Echad u'Masar l'Acher, Zeh she'Masar Lo, Kanah'?

(c)How then, does Shmuel reconcile this with his own opinion?

6)

(a)Shmuel initially reconciles his own opinion with the Beraisa that states 'Shnei Shtaros ha'Yotz'in b'Yom Echad, Cholkin' - by establishing it like Rebbi Meir, even though he holds like Rebbi Elazar.

(b)The problem with this explanation from the Seifa, which states 'Kasav l'Echad u'Masar l'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 d'Dayna'.

7)

(a)The Chachamim in the Beraisa to which we just referred, say 'Yachloku'. What is the case?

(b)What do 'Kan Amru' say?

7)

(a)The Chachamim, in the Beraisa to which we just referred and who 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, he found that Reuven had died too.

(b)'Kan Amru' - holds that Levi should give the money to whomever he sees fit ('Shuda d'Dayna').

8)

(a)In the morning, Rami bar Chama's mother wrote her Kesubah out to him. What did she do in the evening?

(b)Rav Sheshes placed the Kesubah in the possession of Rami bar Chama. What objection did Rav Nachman raise when Rav Sheshes initially claimed that this was because his document was dated earlier?

(c)What did Rav Nachman subsequently rule?

8)

(a)In the morning, Rami bar Chama's mother wrote her Kesubah out to him. In the evening - she wrote it out to his brother Mar Ukva (though it was not known to whom she handed it first).

(b)Rav Sheshes placed the Kesubah 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 on a document).

(c)Rav Nachman subsequently - placed the Kesubah in the possession of Mar Ukva bar Chama.

9)

(a)When Rav Sheshes claimed that, like Rav Nachman, he had based his ruling on 'Shuda d'Dayna', Rav Nachman claimed that Rav Sheshes was not a Dayan, and therefore had no authority to apply 'Shuda d'Dayna'. What other argument did he present to prove Rav Sheshes wrong?

(b)Why would Rav Sheshes otherwise have had the law on his side?

(c)How did Rav Nachman obtain the authority of a Dayan?

(d)Who finally received the Kesubah?

9)

(a)When Rav Sheshes claimed that, like Rav Nachman, he had based his ruling on 'Shuda d'Dayna', Rav Nachman claimed that Rav Sheshes was not a Dayan, and therefore had no authority to apply 'Shuda d'Dayna' - and besides, he argued, that was not the reasoning that he had initially given for his ruling.

(b)Otherwise, Rav Sheshes would have had the law on his side - because, once, based on 'Shuda d'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 Yeshiva - though it is unclear exactly what this means).

(d)It was Mar Ukva bar Chama who finally received the Kesubah due to the ruling of Rav Nachman.

10)

(a)What did Rav Yosef rule when two claimants came before him, one with a document (of sale) dated the fifth of Nisan, the other, with a document dated Nisan Stam?

(b)What reason did he give to the other claimant for his ruling?

(c)And what did he tell the latter, when he asked him for a document dated from Rosh Chodesh Iyar, authorizing him to claim from others fields which the purchasers may have acquired from the seller (who had accepted responsibility) from then on?

(d)What then, could he do to recoup his losses from the purchasers?

10)

(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 Stam - 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'Chavero, Alav ha'Re'ayah', he would have to prove that his Shtar was written earlier than his friend's.

(c)And when the latter asked him for a document dated from Rosh Chodesh Iyar, authorizing him to claim from others fields which the purchasers may have acquired from the seller (who had accepted responsibility) from then on - he replied that, vis-a-vis the purchasers, 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 them, seeing as they had left him that field).

(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 would be able to claim from the purchaser using both documents (and claiming from the later date - Rosh Chodesh Iyar).

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