Daf Yomi - Kesuvos 95 - Highlights

Two documents in Nissan

There were two documents regarding the sale of the same piece of property that were brought before Rav Yosef. In one of the documents, it was recorded that the document had been written on the fifth of Nissan, while the other document said that it had been written in Nissan (but no specific date was mentioned). Rav Yosef gave the property to the one whose document was dated on the fifth of Nissan. The other fellow asked Rav Yosef, “Why should I lose out”? Rav Yosef replied, “You are at a disadvantage because perhaps your document was signed on the twenty-ninth of Nissan.” He asked Rav Yosef, “Will the master write for me a document stating that I may seize any properties sold by the seller from Iyar and on?” Rav Yosef responded, “The purchasers can tell you, ‘your document was signed on the first of Nissan (and therefore, the buyer holding the document dated on the fifth of Nissan took the property that actually belongs to you).’”

The Gemora asks: is there any remedy for this buyer?

The Gemora answers: The holders of the two documents should write out authorizations for each other (so that the purchasers cannot rebuff any of them because he can demand reimbursement for himself or on behalf of the other fellow, who appointed him as a “power of attorney” to seize the property for him). (94b – 95a)

Mishna

The Mishna states: If one was married to two wives, and sold his field (which was pledged for their kesuvos), and the first wife wrote to the purchaser, “I have no right or claim against you,” (after the husband dies) the second wife may take from the purchaser, and the first one from the second one (since the first one waived her rights in this property only to the purchaser), and the purchaser from the first one (since she waived her rights to him); and they go around in circles until they reach a compromise among themselves. And similarly, this would apply to a creditor and a woman who is her husband’s creditor. (95a)
Surrendering her Rights
The Gemora asks: Does she in fact surrender her rights to the property when she waived her rights to the purchaser? But we learned in a braisa: If one says to his fellow (a partner in the field): “I have no claim or rights regarding this field,” or he says: “I have no business with it,” or he says: “My hand is removed from it,” it is considered as if he said nothing (since he is not stating that he is giving his share to his partner)?

The Gemora answers: The Mishna is discussing a case where the buyer made a kinyan (chalipin; one took a kerchief from the other in order to formalize the transfer) with the wife.

The Gemora asks: Why does the kinyan help? Let the wife say that she only agreed to the sale in order to please her husband (for this way, it would be easier for him to sell the property)? The Gemora proves that this is a valid claim from a Mishna in Gittin (55b).

Rav Zeira answers in the name of Rav Chisda: Our Mishna is following the opinion of Rabbi Meir and the Mishna in Gittin is following the opinion of Rabbi Yehudah. For we learned in a braisa: If a husband wrote a contract for the first buyer of a field of his wife, and she did not sign a consent form and then he wrote a contract for another buyer of a field of hers and that she did sign for, she loses thereby her claim to her kesuvah (if her husband has no free property left; she cannot obviously collect from the second field because she has agreed that the husband should sell it; she cannot recover her kesuvah even from the first buyer since he will claim that when he had bought his field, her husband was still left in the possession of that field which he subsequently sold to the second purchaser); these are the words of Rabbi Meir. Rabbi Yehudah, however, said: She may claim, “I merely meant to please my husband; what claim can you have against me?” Rebbe ruled anonymously in our Mishna in accordance with Rabbi Meir and he ruled in Gittin like Rabbi Yehudah.

Rav Papa answers: Our Mishna can be referring to a divorcee (where, she obviously cannot claim that she only waived her right to please her husband), and it would be according to everyone.

Rav Ashi offers an alternative answer: Both Mishnayos reflect the view of Rabbi Meir, for Rabbi Meir maintains his view (that she would forfeit her kesuvah) only there, where two buyers are concerned, since in such a case, they can tell her, “If you only consented in order to please your husband, you should have done so in the case of the first buyer,” but where there is only one buyer, even Rabbi Meir would admit that the sale is invalid. And our Mishna is referring to a case where the husband had first written a contract for another buyer (and his wife did not agree, and then he made another sale, which is the case of our Mishna, where she did agree; she cannot present the claim that she only consented to please her husband, for she should have done the same by the first sale as well). (95a)
Collecting from Mortgaged Property when Free Property has been Ruined
The Gemora cites a Mishna in Gittin (48b): A creditor may not collect from mortgaged property (that has been sold) when there is still available free property (by the debtor).

The Gemora inquires: If the free property became ruined, may the creditor collect from the properties that have been sold?

The Gemora attempts to resolve this inquiry from the following braisa: If a husband wrote a contract for the first buyer of a field of his wife, and she did not sign a consent form and then he wrote a contract for another buyer of a field of hers and that she did sign for, she loses thereby her claim to her kesuvah; these are the words of Rabbi Meir. Now, if you would think that if the free property became ruined, the creditor may collect from the properties that have been sold; while it is understandable that she has lost the right to collect her kesuvah from the second field, shouldn’t she be entitled to collect her kesuvah from the first field (which was akin to being ruined when she initially lost her right to collect from it)?

Rav Nachman bar Yitzchak answers: The braisa only meant that she lost her right to collect her kesuvah from the second field.

Rava challenges this answer: Firstly, the language of the braisa strongly indicates that she has completely lost her right to the kesuvah. Secondly, there is a different braisa, where it can be derived that in our case, the woman, after forfeiting her right to collect from the second field, cannot go and collect it from the first one!

The Gemora answers: There (by signing an agreement on the second sale), she has caused the loss with her own hands (and that is why she cannot collect from the first one; it is not similar to the case of our inquiry, where the field became ruined by itself).

Rav Yeimar said to Rav Ashi (attempting to resolve this inquiry): It is everyday incidents (that creditors collect from sold properties after free property has been ruined). For there was a borrower who once pledge a vineyard to the lender for ten years (the terms of this deal were that the creditor was to enjoy the produce of the vineyard during the ten years in payment of his loan, while the vineyard itself was to return to the borrower at the end of that period without any further payment or obligation on his part) but it aged after five years (and could not produce grapes any longer). When the lender came to the Rabbis, they wrote out a document allowing him to collect from the purchasers. (This demonstrates that creditors collect from sold properties after free property has been ruined.)

The Gemora notes: There also, it was they who caused the loss with their own hands to themselves. For, it is common knowledge that a vineyard should age, and they should not have bought any of the debtor’s mortgaged land.

The Gemora rules: The law, however, is that where free property has been ruined; they may collect from mortgaged property. (95a – 95b)
Abaye’s Ruling
Abaye said: If a man said to a woman, “My property shall be yours and after you (your death) it shall be given to so-and-so,” and then she got married (and later died), her husband is regarded as a purchaser of her property, and her successor has nothing in place of her husband.

The Gemora asks: In accordance with whose view was Abaye’s ruling made?

The Gemora answers: It is reflecting the opinion of the following Tanna. For it has been taught in a braisa: If one man said to another, “My property shall be yours and after you it shall be given to so-and-so,” and the first recipient went down and sold the property, the second one may take the property from those who bought it (after the first one dies); these are the words of Rebbe. Rabbi Shimon ben Gamliel ruled: The second one may receive only that which the first has left.

The Gemora asks: But could Abaye have issued such a ruling? Didn’t Abaye say: Who is a cunning rogue? One who advises (the first recipient) to sell the property in accordance with the ruling of Rabbi Shimon ben Gamliel.?

The Gemora answers: Did he say that she may marry? He only said that the woman got married. (95b)
Abaye’s Second Ruling
Abaye said: If a man said to a woman, “My property shall be yours and after you (your death) it shall be given to so-and-so,” and the woman sold the property and then died, her husband may take the property from the buyer, and the woman’s successor may take it from the husband, and the buyer may take it from the successor. And ultimately, the property remains in the possession of the buyer.

The Gemora asks: But why should this case be different from our Mishna which ruled in a similar case that and they go around in circles until they reach a compromise among themselves?

The Gemora answers: in the Mishna’s case, they are all suffering some loss (because the women are owed their kesuvah and the purchaser spent money on the property) but here, it is only the buyer who suffers the loss.

Rafram reported this ruling to Rav Ashi and he asked: Could Abaye have issued such a ruling? Didn’t he, in fact, rule that a man said to a woman, “My property shall be yours and after you (your death) it shall be given to so-and-so,” and then she got married (and later died), her husband is regarded as a purchaser of her property, and her successor has nothing in place of her husband.? (How could he rule in the second case that the successor takes it away from the husband?)

Rav Ashi replied: There, Abaye was discussing an unmarried woman (and perhaps the man did not wish that the property should go to the successor even if she would get married), but here, where she was already married, he was obviously saying that the successor should acquire it, and the husband should not. (95b)

WE SHALL RETURN TO YOU,
MI SHEHAYA NASUI

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