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
(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
(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
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'
(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
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.