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Kesuvos, 94


OPINIONS: The Gemara discusses a case where two people are each holding a Shtar Mechirah (deed of sale) for the purchase of the same field from the same person. Both Shtaros were written on the same day, and each person holding a Shtar claims that he is the recipient of the field. Obviously, though, the field was only sold to one of them. Rav and Shmuel dispute how Beis Din is to resolve the conflict. Rav says "Cholkin" -- Beis Din is to split it up ("Cholkin") 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 the reason why Rav says that the field is divided is because he holds like Rebbi Meir, who says that "Edei Chasimah Kartei," the witnesses who sign the Shtar make the Shtar take effect. Shmuel holds that the field is given to whomever the judges decide because he holds like Rebbi Elazar, who says that "Edei Mesirah Kartei," the witnesses in front of whom the Shtar is delivered to the recipient make the Shtar take effect.

Shmuel's opinion is easy to understand. Since Shmuel holds "Edei Mesirah Kartei," only the Shtar which was delivered first to its recipient was a valid Shtar. When the second Shtar was given afterward to someone else, it was not a valid sale because the property no longer belonged to the original owner; it was no longer 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 can prove on his own which 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 give him 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) argues 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 one is a Talmid Chacham.)

The Gemara holds, at this point, that in general it 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 split because of "Edei Chasimah Kartei?" "Edei Chasimah Kartei" means that the primary testimony on a Shtar that effects the legal transfer of property are the witnesses signed on the Shtar. A Shtar that 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 that was actually delivered to the recipient should be the one that makes the sale take effect, just like according to Shmuel. Writing the Shtar alone does not cause the transferal of the ownership of the field. Besides, even if writing the Shtar alone would effect a transfer of ownership, in our case we have no idea which of the two Shtaros was written first, since the hour of the writing of the Shtar is not written in the Shtar. We should still have to decide the case 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 on it did not know the time of the Kinyan and are not testifying about it), then it 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 for us 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 deduction, in this case "Shuda d'Dayanei" does not apply, since there is no possible way of deducting who the logical owner should be. (It 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 for us to know which one.) Since "Shuda d'Dayanei" cannot be done, the only option that remains according to Rav is to split the field.

(b) TOSFOS (citing his Rebbi) and other Rishonim argue with Rashi, because they explain that "Shuda d'Dayanei" means that the judges choose on their own, and not necessarily based on logical deduction. Therefore, "Shuda d'Dayanei" is applicable even when we have no logical way to determine which Shtar took effect first.

Tosfos explains that those who say "Edei Chasimah Kartei" maintain that if a document is lacking information that is vital to the Kinyan, then the Shtar cannot create a Kinyan. Even though 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 our Gemara did not have the time of day written in them, making it impossible to determine based on the Shtar whether the Kinyan was made earlier or later in the day. All we can determine 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, no matter at what point in the day it was actually delivered.

Hence, if there are two Shtaros that have the same day written in them (with no time written in them), they both will take effect at the same moment (i.e. at the last moment of the day) no matter 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 to split the property. We have no doubt whatsoever as to who owns the field. We know for certain that 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 be learning 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 in a case where it is impossible for the field to actually belong to both parties. In such a case, if the field is divided equally, then it will look strange for Beis Din to be splitting 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, then 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 that 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 we 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 is obviously trying to fool one of the recipients by selling or giving him a field that was not his, would not dare to give it to one party in front of the other, for they would immediately realize his treachery. Rather, he gives the first Shtar to one recipient, and then, at a later point 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 holds "Edei Chasimah Kartei," since the writing and signing of the Shtar is the primary act accomplishing the Kinyan, when the seller delivers the Shtaros to the recipients, he probably has in mind at that time that they should only take effect 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, that was written *first*, takes effect. If the two Shtaros were written at the same moment (such as when they were signed by different witnesses), then no matter which one is delivered first, both Shtaros take effect at the same moment, and the property becomes acquired by both of the recipients, with each one receiving half of the property.

Rabeinu Tam asserts that there does exist a possibility that both Shtaros were signed by different witnesses in different places at the same moment, without revealing the seller's plot. 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 they were both 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" is better or "Chalukah" is better is simply a matter of statistical probability. He explains that Rebbi Elazar ("Edei Mesirah Kartei") and Rebbi Meir ("Edei Chasimah Kartei") argue with regard to a Shtar that is delivered *on the day after* it is written. If "Edei Mesirah Kartei," then 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 (i.e. pre-dated; see Insights to Rosh Hashanah 2:2).

According to those who say "Edei Chasimah Kartei," the moment that 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 the Shtar does not have the hour written in it but only the date, at the last moment of that day the Shtar takes effect, whether or not it has been delivered. Therefore, no matter when it is eventually delivered, it is not a Shtar Mukdam.

In short, if "Edei Chasimah Kartei," then 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.

Now when two Shtaros are written with the same date, there exists four possibilities as to when they were delivered: (1) They could have been delivered to both recipients *simultaneously* on the *same* day they were written, or (2) they could have been delivered *one after the other* on the same day they were written. Alternatively, (3) they could have been delivered to both recipients *simultaneously* on a day *after* the day on which they were written, or (4) they could have been delivered *one after the other* after the day on which they were written.

If "Edei Chasimah Kartei," then 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 that 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), then 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 splitting the field.

If, on the other hand, "Edei Mesirah Kartei," then if the Shtaros were given on a later day, they are invalid (so two of the four possibilities are not taken into consideration). Rather, we assume that the Shtaros were given on the day they were written, and thus there are two possibilities: (1) they were given to the recipients simultaneously (in which case they both own the field), or (2) one after the other (in which case the first recipient owns the field). Of the two possibilities, we consider it to be 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.


QUESTION: The Gemara shows that even according to Rebbi Elazar, who holds "Edei Mesirah Kartei," it is not obvious that "Shuda d'Dayanei" is better than "Chalukah." There is a Tana who holds that whenever in doubt, it is preferable to split the property. The Gemara proves this from a Beraisa which discusses a case where 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 returning with the money he found that the person who sent him had also died. The Gemara (Gitin 14b) asks who gets 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 irrelevant. 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 our Sugya, see beginning of previous Insight.) Our Gemara says that this shows that there is a Machlokes Tana'im whether "Shuda" is better or "Chalukah" is better even in a case where "Edei Chasimah Kartei" does not play a role.

The Gemara later discusses a dispute between Rav Sheshes and Rav Nachman regarding two Shtaros giving away the same field which were 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 so, how could the Gemara say that the Shali'ach -- who obviously is not the Dayan -- is entrusted to make a "Shuda" and distribute the money to whomever he deems appropriate?


(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 is saying that he is the *local* Dayan, and his "Shuda" may therefore override a visiting Dayan's "Shuda."

Similarly, the HAGAHOS ASHIRI says that Rav Nachman is saying 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 by Tosfos Kidushin 74a, Dh Shuda) rule that only an established, expert Dayan like Rav Nachman may perform a "Shuda." (Rabeinu Chananel probably maintains that Shuda is not a logical means of determining who the true owner is, as Rashi suggested. Rather, it is a "Dayan's choice," allowing an expert Dayan to choose the winner based on considerations not directly related to the case at all.) Why, then, in the case of the Shali'ach, could the Shali'ach give the money to whomever he wants?

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 (e.g. in a dispute regarding the ownership of land, or if the two disputants are both holding the property), then 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 can make a "Shuda," just as an expert Dayan is required to make something Hefker.

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