MISHNAH: If somebody was married to two women when he died, the first one [The wife whose ketubah is dated earlier.] precedes the second [Since a ketubah is a mortgage lien, the holder of the earlier mortgage has the right to foreclose any real estate before the holder of the later mortgage may foreclose. The rules of this Chapter are in essence rules of privileged creditors in bankruptcy proceedings since they become irrelevant if the estate is large enough to satisfy everybody.] , and the heirs of the first precede the heirs of the second [If the wives die before they have collected their respective ketubot, the heirs collect these from the estate (Mishnah 4:10).] . If the first one he had married died [The husband then inherits his deceased wife’s property; only after his death can the first wife’s children claim her ketubah as inheritance.] , then he married the second one and he himself died, the second and her heirs [The widow is a mortgage holder, a creditor of the estate; the first wife’s children are heirs. The heirs can lay their hands on the estate only after all outstanding obligations are paid. If the widow dies before she is paid, her claim passes to her heirs.] precede the heirs of the first.
HALAKHAH: “If somebody was married to two women,” etc. The Mishnah refers to ketubah, but for sustenance both are equal [If both widows prefer not to receive their ketubah but to be sustained by the estate, they have to be treated equally. The statement is also in Tosephta 10:1.] . Between ketubah and burial, what has precedence [The estate is only sufficient either for the expenses of the man’s burial or his widow’s ketubah. The question is not answered, maybe because it never arose in practice. Since the deceased has to be buried before questions about payment are asked, it seems that the burial is charged to public welfare.] ? Between ketubah and a loan attested to by witnesses, what has precedence [For R. Tarphon in Mishnaiot 9:2–3, the creditor has precedence since he depends on the testimony of witnesses who might die but the widow depends on the written ketubah.] ? Between ketubah and daughters’ dowry, what has precedence? For him who says [R. Ḥanina in Halakhah 6:6, against R. Joḥanan (Notes 93, 96–97). The disagreement is also quoted in 13:3 (36a 1. 15).] , one collects for dowry from mortgaged property, daughters’ dowry has precedence. But for him who says, one does not collect for dowry from mortgaged property, daughters’ dowry does not have precedence.
It says only, “she died”. Therefore, if she was divorced, her status is that of a creditor [If the first one was divorced, her claim has preference over the claims of the second and her heirs.] . As it was stated [Tosephta 10:1.] : “He married a woman and wrote her a ketubah. He divorced her but did not pay the ketubah. He married another woman and wrote her a ketubah. He took back the first one and wrote her a ketubah in addition to the first ketubah [Then the husband died and his estate is not sufficient to satisfy all three ketubot.] . The [second ketubah] of the first [wife] has precedence over that of the second [wife] and her heirs, and the second [wife] and her heirs have precedence over the heirs of the first. [That text is elliptic but its meaning is clear; it is not necessary to assume that the original text was that of the Tosephta and was shortened in transmission. The Tosephta reads: “The first ketubah of the first [wife] has precedence over the second and her heirs; the second and her heirs have precedence over the second ketubah of the first.” Any prior document has precedence over any later one.] ”
Ben Azay [Later in the discussion, the author is called Ben Nanas in ms., editio princeps, and all ms. sources of the Babli, 90b. However, in the Constantinople edition with the commentary of Joshua Benvenist, the name is Ben Azay in both occurrences. Ben Nanas is mentioned in Mishnah 5.] says [This refers to the second case in the Mishnah, where the first wife died and the second becomes a widow. In that case, the husband inherited the first wife’s property; the first wife’s children have claim to inherit their mother’s ketubah only by rabbinic institution, cf. Mishnah 4:10, whereas the widow (or her children in her stead) has a contractual claim on the estate. If the estate is larger than the sum of the two ketubot by at least “one excess denar”, there is no problem. All children can inherit their mother’s ketubah and part of the remainder. But if the estate is not sufficient and payment of the “ketubah of male children” instituted in 4:10 would eliminate biblical inheritance rules, the question is whether rabbinic inheritance can or cannot supersede biblical inheritance (which would treat all children equally except that a male firstborn counts for two.)] , the heirs of the first say to the heirs of the second: If you are creditors, take what is yours and leave [The rabbinic institution of “ketubah of male children” eliminates the biblical laws of inheritance. The sons of the second wife take their mother’s ketubah as inheritance from their mother, not their father; what remains of the estate is taken by the sons of the first wife as “ketubah of male children”. In Tosephta 10:1, this is presented as anonymous rule: “If there is an excess denar, both parties take their mothers’ ketubot and the remainder is split evenly; if there is no excess denar, the second wife or her heirs take her ketubah and the remainder is divided evenly.] ; otherwise let us split evenly between yourselves and us [If the sons of the second wife want to deprive the sons of the first of their “ketubah of male children”, they lose their own ketubah and everybody becomes an heir in biblical law. Since this would be to the detriment of the sons of the second wife, the first alternative is operative.] . Rebbi Aqiba said to him: Biblical inheritance “jumped” on the sons of the second; they take their mother’s ketubah and come back to split [The sons of the second wife take their mother’s ketubah under the rules of creditors and the remainder is biblical inheritance split among all sons since rabbinic inheritance decrees cannot eliminate biblical rules if the estate is too small.] . Rebbi Mana [R. Mana II, contemporary of R. Yose ben R. Abun.] said, they disagree if there is an excess denar [It is very difficult to accept that the second marriage invalidates the “ketubah of male children” of the first marriage.] . But if there is no excess denar, even Rebbi Aqiba will agree with Ben Nanas [Later in the discussion, the author is called Ben Nanas in ms., editio princeps, and all ms. sources of the Babli, 90b. However, in the Constantinople edition with the commentary of Joshua Benvenist, the name is Ben Azay in both occurrences. Ben Nanas is mentioned in Mishnah 5.] that both parties split evenly [It is equally difficult to accept that the ketubah of the second has the status of a creditor’s claim only for the widow but not for their heirs. Since the argument of R. Yose ben R. Abun is reasonable, there seems to be no possibility to claim a copyist’s corruption.] . Rebbi Yose ben Rebbi Abun said to him, a situation which was stated without disagreement you turn into a disagreement. They must disagree if there is no excess denar. But if there is an excess denar even Ben Nanas [Later in the discussion, the author is called Ben Nanas in ms., editio princeps, and all ms. sources of the Babli, 90b. However, in the Constantinople edition with the commentary of Joshua Benvenist, the name is Ben Azay in both occurrences. Ben Nanas is mentioned in Mishnah 5.] agrees with Rebbi Aqiba that biblical inheritance “jumped” on the sons of the second; they take their mother’s ketubah and come back to split [The sons of the second wife take their mother’s ketubah under the rules of creditors and the remainder is biblical inheritance split among all sons since rabbinic inheritance decrees cannot eliminate biblical rules if the estate is too small.] .
Debts diminish and, equally, debts add [In determining whether an estate is larger than the sum of the ketubot due, one deducts debts payable by the estate and adds debts due to it. The Babli agrees, 90b.] . How is this? If there was a field which in the future would return in the jubilee year, you consider it virtual [The example is purely theoretical since the institution of the jubilee disappeared under the Israelite monarchy; cf. Introduction to Tractate Ševi‘it. The practical implication is that the “ketubah of male children” is due even if the estate reaches the required size only by counting contracts far into the future.] [property].
How is that [This sentence does not refer to anything; it seems to be a copyist’s error.] ? If he preliminarily married Rachel, definitively married Leah [By combining preliminary and definitive marriage (cf. Chapter 1, Note 24).] , and only then definitively married Rachel. In the opinion of the rabbis, Rachel has precedence; in the opinion of Rebbi Eleazar ben Azariah she does not have precedence [In Mishnah 5:1, R. Eleazar ben Azariah holds that a ketubah becomes executable only after definitive marriage; therefore, Leah’s ketubah in effect should predate Rachel’s even though Rachel’s was executed earlier, at the time of her preliminary wedding. For the rabbis, the date of the contract is the determining factor.] . They say, even Rebbi Eleazar will agree that since in the end he definitively married Rachel, Rachel has precedence [R. Eleazar ben Azariah agrees that if both contracts are executable, the dates of the contracts determine precedence. He only holds that before definitive marriage the contract is not executable.] . To what can this be compared? To one who took out a loan from another person and said to him, if I have not paid it back by twelve months, all my properties shall be mortgaged to you. If the twelfth month arrived and he has not paid back, his properties become mortgaged from that moment on [The moment of the loan. If the debtor had sold any real estate in the meantime, the creditor can have regress on it since the contract predates the sale even if it becomes executable only later.] . But if he said, all my properties shall be mortgaged to you only after twelve months, they become mortgaged only after twelve months. The status of the days in between [The days between the signing of the contract and the end of 12 months when the contract becomes executable.] is in dispute between Rebbi Meïr and the rabbis [There are many disputes between R. Meïr and the other rabbis and it is a matter of conjecture to which dispute this refers. R. Moses Margalit points to a baraita quoted in the Babli Baba meṣi‘a 13b, in which R. Meïr states that a loan contract allows regress on alienated property only if this was stated in the contract; but the rabbis hold that such regress is a matter of law and does not have to be stated explicitly.] . In Rebbi Meïr’s opinion, the properties became pledged by the document [The alienation clause becomes activated only after 12 months; it cannot apply to properties sold during these months.] . In the rabbis’ opinion, the properties became pledged by the money [The moment the loan money changed hands, the alienation clause became executable whether written or not.] .
MISHNAH: If somebody was married to two women who both died, and then he died, and the orphans demand their mothers’ ketubot, if [the estate] is sufficient only for both ketubot they split evenly [If there are n sons, the estate is divided into n equal parts. If one of the children is a male firstborn, the estate is divided into n+1 parts and the firstborn takes two. If there are no sons, only n daughters, the estate is divided into n equal parts.] . If there was an excess denar, these take their mother’s ketubah and those take their mother’s ketubah [The remainder is split evenly between the heirs.] . If the orphans say [If the ketubot were unequal, the sons of the mother with the larger ketubah would be interested to receive the ketubah rather than the inheritance. Similarly, if the ketubot were equal but one wife had few sons, the other many, the few sons would gain if they could split their mother’s ketubah between them and not have to share with their many halfbrothers. These are willing to take some property at an inflated value in order to receive more than the other woman’s sons.] , we accept the properties of our father for the value of an extra denar in order to take their mother’s ketubah; one does not listen to them but one appraises the properties in court.
HALAKHAH: “If somebody was married to two women,” etc. That refers to what Rebbi Immi said, that a man should be induced to give generously to his daughter [Halakhah 4:12, Note 238.] . If that is so, then even if there is no excess denar [If the “ketubah of male children” was instituted so that people would increase their daughters’ dowries in the knowledge that the money will be transferred to their grandchildren, it does not seem reasonable to restrict the rules to sufficiently large estates.] ? Rebbi Abun said, in case you can uphold their words with the words of the Torah, you uphold their words with the words of the Torah [If the estate is large enough, one can distribute the “ketubah of male children” and still have an estate which is distributed according to biblical law (Num. 27:6–11). Cf. M. A. Friedman, Jewish Marriage in Palestine, Tel Aviv 1980, vol. I, pp. 381 ff.] . But in case you cannot uphold their words with the words of the Torah, you disregard their words and uphold the words of the Torah.
Rebbi Judah bar Pazi in the name of Rebbi Yose ben Ḥanina: If one of the brothers died, they all split evenly [If he dies without issue, all his paternal brothers inherit from him.] . Rebbi Mana said, that is necessary if they did not yet divide the estate. You should not say that he should be considered nonexistent and his house should inherit from him [If the estate had been distributed by the time of his death, this would be a simple case of inheritance; in the absence of children his maternal brothers would inherit. But if the estate was not yet distributed, the question is whether the heirs are considered to have acquired their part at the moment of their father’s death or whether they acquire only at the time of the actual distribution. Clearly, for the part of the estate which is distributed under biblical law, all surviving full and halfbrothers inherit equally. But for the “ketubah of male children”, in the second case, only the maternal brothers share his part, while in the first they all share. R. Mana states here that an inheritance is acquired at the time of death of the bequeather. In the Babli, Baba batra 107a, this latter opinion is attributed to Rav; Samuel holds that “brothers at the distribution of the estate have the status of buyers from one another”, i. e., their status is determined only at the time of distribution. Since the Babli follows Samuel in money matters, it will deny R. Mana’s assertion.] . If there was a (male) firstborn, you say the firstborn takes a double portion [Deut. 21:16–17. In that example, the firstborn takes /3 since there are only two sons.] . What does he take? A double portion among his house or among all brothers [Is the “ketubah of male children” of the other wife exempt from the biblical rule of the firstborn?] ? Rebbi Hoshaia stated: If there were two groups of daughters, they all split evenly [Mishnah 4:10 refers only to male children. If all children are female, they each receive an equal share of the estate.] . If there was a firstborn, you say the firstborn takes a double portion. What does he take? A double portion among his house or among all ketubot? [It is not clear why this question is repeated since R. Hoshaia does not deal with sons at all and a female firstborn has no special rights.]
At which point in time does one appraise? The students of Rebbi Mana say, at the end [At the time of distribution.] . Rebbi Yose ben Rebbi Abun said to them, are you not those who speak in the name of your teacher, “that is necessary if they did not yet divide the estate” [If the share of each son in the “ketubah of male sons” is determined at the moment of their father’s death, the value of the estate must be determined at that moment since the “ketubah of male sons” depends on that value.] ? But one assesses from the first moment [The moment of the father’s death. This is asserted in the Babli, 91a/b, by Rav Naḥman, the highest authority in money matters. In his opinion, the status of the estate is not connected with the point in time at which the heirs take possession of their inheritance.] !
MISHNAH: If the estate contained expected property, it does not have the status of property in actual possession [If the expected inheritance from a grandfather would bring the father’s estate over the limit for distribution of the “ketubah of male sons”, it cannot be counted until it becomes due. Similarly, the double portion of a male firstborn is restricted to “all that is present with him” at his father’s death (Deut. 21:17); the firstborn has no special rights to any inheritance from other members of their family coming to the sons after the father’s death.] . Rebbi Simeon says, even if there was no mortgageable property [Movables.] , it does not count unless there is mortgageable property [Real estate. R. Simeon holds that a ketubah is a mortgage lien and, therefore, cannot be satisfied by movable property.] in the value of at least a denar more than the two ketubot.
HALAKHAH: “If the estate contained expected property,” etc. Rebbi Mana said, they disagree about the basic claim of the two ketubot [It is not totally clear what “the basic claim of the ketubah” means. Is it only the required 100/200 zuz or is it that amount plus any dowry which became the husband’s property, to exclude any sum the husband wrote into the ketubah in excess of minimum and dowry? The second version is preferred by the classical commentators.] . Rebbi Simeon says, real estate, but the rabbis say, movables. But for the excess denar everybody agrees that it is movable. Rebbi Yose ben Rebbi Abun said, everybody agrees about the basic claim of the two ketubot that it must be real estate. Where do they disagree? About the excess denar, where Rebbi Simeon says, real estate, but the rabbis say, movables. Rebbi Abba bar Zavda in the name of Rav: But in Syria they routinely collect from bronze and bedspreads [Articles of trade, at places were Jews were not traditionally land owners.] . Rebbi Abbahu in the name of Rebbi Joḥanan: Only from bedspreads of that night [He wants to restrict the recovery of the ketubah to the articles of the dowry brought by the bride.] . Rav Samuel bar Naḥman in the name of Rebbi Joḥanan: The people in Arabia routinely collect from camels and spices [Since they are bedouin traders, they do not possess any real estate; their equivalent of real estate are camels (affirmed in the Babli, 67a, by the same authors); their object of trade is spices.] . Similarly, only from spices of that night [Since it would be nonsensical to require the spices brought by the bride to be available to the widow; the condition about bedspreads is also nonsensical.] ? Rebbi Ḥuna’s widow collected from movables following her place’s custom [The famous Gaonic decree that ketubot be paid from movables is nothing but an application of the Yerushalmi rule that local conditions overrule general statements.] .
MISHNAH: If somebody was married to three women when he died, the ketubah of one was a mina [100 zuz.] , of the other one 200, and of the other one 300. If the estate is only 100, they divide equally. If it was 200, the one who claims a mina takes 50, and those who claim 200 and 300 each take three gold denars [1 gold denar was worth 25 silver denars. 3 gold denars equal 75 zuz, 6 gold denars 150 zuz.] . If it was 300, the one who claims a mina takes 50, the one who claims 200 takes a mina [100 zuz.] , and the one who claims 300 takes six gold denars [1 gold denar was worth 25 silver denars. 3 gold denars equal 75 zuz, 6 gold denars 150 zuz.] . Similarly, if three who invested together lost or gained they would split in this manner [This refers to the proportional distribution of the last case. Loss and gain of a stock company are distributed per share.] . [This Mishnah poses difficult problems. First, it deals with a scenario that cannot arise since Mishnah 1 stated that a ketubah which precedes in time has to be satisfied from the estate before the later ketubah can be claimed. Therefore, the case of the Mishnah presupposes that the husband married three woman simultaneously. While this is possible in theory, it is excluded in practice. The problem is a practical one if applied to the case that the amount available in bankruptcy proceedings is not sufficient to cover all claims of equal rank. At first glance, it seems that the Mishnah is inconsistent, applying three different rules to three different cases. Since the Mishnah must guide the judge to correctly apportion payment of claims c1, c2,c3 if the available amount a < c1+ c2+ c3, for all a between 0 and c1+ c2+ c3, it is obvious that the Mishnah has to be explained by one single consistent formula or algorithm. In addition, the algorithm must be applicable to any number n of claims. In the tenth Century, Saadya Gaon suceeded in reducing the number of different rules employed in the Mishnah to two (Oṣar Hageonim Ketubot p. 310). A complete discussion of the Geonic treatment of the Mishnah was given by I. Francus, שיטת הגאונים בפירוש משנה וברייתא, סיני פכו-פכז (תשס-תשסא) קצה-ריב (M. H. Katzenellenbogen Memorial Volume). The first complete solution of the problem of finding a uniform rule for all three cases was given by R. J. Aumann and M. Maschler, Game Theoretic Analysis of a Bankruptcy Problem from the Talmud, J. Econom. Theory 36(1985) 195–213. In the framework of the theory of cooperative games, the authors show that the distribution of the Mishnah corresponds to the nucleolus strategy in game theory. Using only elementary mathematics, a single distribution formula covering all cases was given by M. Balinski in: Quelle équité, Pour la science 311 (September 2003) 82–87; What is Just? Am. Math. MONTHLY 112(2005), 502–511. While these authors succeed in explaining the Mishnah in itself, they do not explain the interpretation given to the Mishnah by the Talmudim. Nor do they explain why in both Talmudim the Mishnah is rejected out of hand. The explanation of the Babli is in language close to the Yerushalmi but translated into mathematical formulas the results are quite different; in both Talmudim the proposed explanation results in a procedure which is not monotone; i. e., it is possible that if the available amount a is increased, the payouts for some claimants are decreased. The solutions both of Aumann/Maschler and Balinski are monotone, increasing with a. Balinski shows that the Mishnah can be understood in terms of a different distribution problem in Mishnah Baba meṣiʻa 1:1, as indicated by Alfasi (Ketubot 10, 51b in the Wilna ed.). Since this problem is also the basis of the arguments in both Talmudim, Balinski’s method is explained first. In Baba meṣiʻa there are two claimants for an amount of 1. The first claims it all, the second claims ½. Both claims are of the same status. Then the first is awarded 3/4, the second 1/4. While the claims are in ratio 2:1, the awards are in ratio 3:1. The reason given is the rule ascribed to Symmachos, a student of R. Meïr, that “money in doubt is split evenly” [Babli Baba meṣiʻa 2b, Baba qama 35b; Yerushalmi Baba meṣiʻa 8:5 (11d 1. 18); cf. Chapter 2, Notes 9 ff.]. Since the second claimant asks only for ½, the other half is awarded to the first claimant. The first half is in doubt; therefore it is split evenly between the two parties, resulting in the awards mentioned. In order to arrive at a mathematical formulation, assume that n claims ci are advanced, c1< c2 < … < cn. If several claims were identical they would be consolidated into a single claim and the award split evenly between the participants. For any amount a available for distribution, the payout for claimant i is pi(a), p1(a)+ p2(a)+ … + pn(a)= a. We also introduce the sum of the claims, S =c1 + c2+ … + cn and M= S/2. For n = 2, Symmachos’s argument determines the payouts uniquely: If a ≤ c1, the entire sum is in dispute, p1(a)= p2(a)= a/2. Therefore, p1(c1)= p2(c1)= c1/2. If c1 < a ≤ c2, the amount a - c1 belongs to claimant 2 and p1(a)= c1/2, p2(a)= a-c1+c1/2= a-c1/2, and p1(c2) = c1/2,p2(c2)= c2-c1/2. If c2< a, both claimants have equal rights to the excess over c2, p1(a)= c1/2+(a - c2)/2 p2(a) = c2-c1/2+(a-c2)/2=(a+c2-c1)/2. If a = c2+c1 = S, all claims are satisfied in full. Using the function min(x,y) = smaller of x or y, Balinski did express the formulas given above by (1) pi(a) = min(ci/2, λ) where λ is chosen so that p1(a)+ p2(a)= a;i = 1,2. An inspection of the formulas shows that the distribution is symmetric about the middle value of the claims: (2) pi(M-x)+ pi(M+x)= ci. This means that the distribution for M ≤ a ≤ S is determined if it is determined for 0 ≤ a≤M. In the Mishnah here, it should be sufficient to indicate the distribution up to an estate of 300 if the sum of claims is 600. But the generalization of the procedure for n = 2 to n > 2 is not trivial. As Balinski points out, an arbitrary distribution function which yields the given values for a = ci and satisfies (2) is compatible with the Mishnah. His own solution is to postulate (1) for i = 1, … n. Then (2) is satisfied and the distribution is monotone. For example, {p1(400),p2(400),p3(400)} = {100-p1(200),200-p2(200),300-p3(200)} = {50,125,225}. The problem with this solution, as with most other solutions proposed in the last 1000 years, is that the Talmudim take another view. The solution of the Babli is easily described as a recursive computational procedure. We assume that p1(a),…,pi-1(a) have been determined; leaving an amount ai to be distributed. We determine pi(ai). If ci ≥ ai, pj(ai) = ai/(n-i) for j = i, … n. Otherwise, all claims larger than ci are consolidated into one claim Ci = ci+1 + … + cn and pi(ai) is the payout assigned to claimant #i in the two-person distribution problem for claims ci, Ci and amount ai. The fictitious second claimant then receives Pi(ai) = ai+1 and the process continues. In the example of the Mishnah, c1 = 100, c2 = 200, c3 = 300. For a = 100, by the first alternative pj(100) = 100/3 for all j. For a = 200, c1 = 100, C1 = 400. Therefore, 100 is assigned to the second party and 100 is split evenly. This yields p1(200) = 50, P1(200) = 150. Since 200 > 150, the latter amount is split evenly, resulting in p2(200) = p3(200) = 75. For a = 300, one sees that p1(300) = 50, P1(300) = 250; p2(300) = 100 = 200/2, p3(300) = 50 + 200/2 = 150. This explains the numbers stated in the Mishnah, but what about a = 101? In that case, p1(101) = 50, P1(101) = 51; p2(101) = p3(101) = 51/2 = 25.5. This clearly is unacceptable; the procedure of the Mishnah has to be rejected. The explanation of the Yerushalmi (cf. Note 69) is not so clearly stated but it seems to be the following: The procedure also is recursive. If ci ≥ ai,pj(ai) = ai/(n-i) for j = i, … n. Otherwise, one considers all two-person problems between claimants i and i+1,…, n. In praxi, this means that one has only to split between ci and cn. If ci < ai < cn then pi(ai) = ci/2. If cn < ai then write ai = cn + δ. Claims n and i overlap to the amount ci - δ. This means that pi(ai) = δ + (ci - δ)/2 = (ci + δ)/2. For a ≤ M, the numbers obtained for Babli and Yerushalmi coincide; the Yerushalmi’s method also is not monotone. The results for a > M disagree. For example, for the data of Mishnah 4, the Yerushalmi gives p1(400)=100, p2(400)=100, p3(400)=200 while the Babli gives p1(400)=50, P1(400)=350; p2(400)=100, p3(400)=250.]
HALAKHAH: “If somebody was married to three women,” etc. Samuel said, sharpness of the judges [Samuel seems to indicate that the court has to investigate and choose the method of distribution which seems most appropriate for the case before them, to whom to give real estate and to whom money or securities. The translation of שוחדא is tentative. In the Babli, the word appears as שודא which either is derived from the Aramaic root שדי “to throw” (interpreted to mean that the court may “throw” the properties to the party it feels has the best claim) or it is identical with Galilean שוחדא because of the disappearance of ح in Babylonian speech. I am proposing to derive שוחד̇א from Arabic شحذ “to sharpen (a knife)”, Mishnaic Hebrew שחז.] . As in the case of two mortgages written on one field, to whom the court wants to hand it over in possession they hand it over [If the field is too small to be useful as property if divided up. The holder of the second mortgage (assuming both were written on the same day) has to be indemnified with money; this is Samuel’s position in Babli 94a.] . The Mishnah disagrees with Samuel: “If the estate is only 100, they divide equally. [Does this not indicate that all three women have to be treated exactly equally?] ” Was this said for the sharpness of the judges [The Mishnah speaks only about the value, not about the mode of distribution.] ? And did we not state: If the heirs inherited an instrument of indebtedness, the male firstborn takes a double portion [Since a documented claim is as good as collected, such a document is counted as ready money, not as future claim (cf. Note 50). In Babli Baba batra 124a and in Tosephta Bekhorot 6:17 the firstborn is given the right to refuse a double portion of secured future claims and then not pay double part of future secured claims against the estate.] ; and if an instrument of indebtedness was presented to them, the male firstborn pays a double portion. Was this said for the sharpness of the judges [This is not a case that allows of judicial discretion.] ? Rebbi Abin in the name of Samuel: There is no difference, whether two mortgages were written on one field or one mortgage was written on two fields, on whom the court decide they hand it over in possession.
Samuel said, if they empower one another [To deal separately with the co-wife claiming the smallest amount. In the Babli, 93a, Samuel explains that the second wife empowered the third to represent her also; cf. Note 62. Unless all parties agree to the procedure, the estate has to be distributed proportional to the claims. It is difficult to see why all parties should agree; the procedure of the Mishnah is eliminated from practical use.] . If the third empowered the second to deal with the first. She said to her, is not a mina due to you [If the amount available is larger than a mina, the first has to split the mina only with one co-wife.] ? Take 50 and leave!
“Similarly, if three who invested together lost or gained they would split in this manner.” [This paragraph has a differently worded parallel in Baba qama 4:1 (by a different editorial team) which explains the somewhat cryptic wording here: תַּמָּן תְּנִינָן. הָאַחֲרוֹן נוֹטֵל מְנָה וְשֶׁלְּפָנָיו חֲמִשִּׁים זוּז וּשְׁנַיִם הָרִאשׁוֹנִים דִּינָרֵי זָהָב. רִבִּי שְׁמוּאֵל בְּשֵׁם רִבִּי זְעֵירָא, וְכֵן לְשָׂכָר. אָמַר רַבִּי יוֹסֵי. הָדָא דְּרִבִּי זֵירָא פְּלִיגָא עַל דְּרַבִּי לָעָזָר. אָמַר רַבִּי מַנִּי. קַשְׁיָתָהּ קוֹמֵי רְבִּי יוּדָן. אָמַר לִי. לֹא מוֹדֶה רְבִּי לָעָזָר שֶׁאִם הִתְנוּ בֵּינֵיהֶן שֶׁזֶּה נוֹטֵל לְפִי כִּיסוֹ וְזֶה נוֹטֵל לְפִי כִּיסוֹ. שְׁוָרִים כְּמֻתָּנִים הֵן. חָזַר וְאָמְרָה קוֹמֵי רְבִּי יוֹסֵי. אָמַר לֵיהּ. בְּפִירוּשׁ פְּלִיגֵי. רִבִּי לָעָזָר אָמַר. סְתַמָּן חוֹלְקִין בְּשָׁוֶה. רְבִּי זְעֵירָא אָמַר, סְתַמָּן זֶה נוֹטֵל לְפִי כִּיסוֹ וְזֶה נוֹטֵל לְפִי כִּיסוֹ. וְכֵן שְׁלֹשָׁה שֶׁהִיטִּילוּ לַכִּיס פָּחֲתוּ אוֹ הוֹתִירוּ כָּךְ הֵן חוֹלְקִין. אָמַר רִבִּי בּוּן. נִרְאִין דְּבָרִים אִם נָֽטְלוּ מַרְגָּלִית. דְּיָכוֹל מֵימַר לֵיהּ אִילּוּלֵי עֲשַׂרְתָּא דֵינָרַיי לֹא הֲוִיתָה מְזַבִּין כְּלוּן. אֲבָל דָּבָר שֶׁדַּרְכּוֹ לֵחָלֵק מֵבִיאִין לָאֶמְצָע וְחוֹלְקִין. אָמַר רִבִּי לָֽעְזָר וַאֲפִילוּ דָּבָר שֶׁדַּרְכּוֹ לֵחָלֵק. דְּיָכִיל מֵימַר לֵיהּ אַתְּ פְּרַגְמָטַּיָּא דִידָךְ סַגִּין וְאַתְּ מַנְעָא מַזְבִּנְתָּא. אֲנָא פְּרַגְמָטַּיָּא דִידִי קָלִיל וַאֲנַא הֲפַךְ וּמִתְהַפֵּךְ בְּדִידִי וּמַטִּי בָךְ. עַד כְּדוֹן בְּשֶׁהָייְתָה פְּרַגְמָטַּייוֹ נְתוּנָה כָאן. תָֽיְתָה פְּרַגְמָטַּייוֹ נְתוּנָה בְּרוֹמֵי. דְּיָכִיל מֵימַר לֵיהּ. עַד דְּאַתְּ סְלִיק לְרוֹמֵי אֲנַא הֲפַךְ וּמִתְהַפֵּךְ בְּדִידִי וּמַטִּי בָךְ. "Similarly, if three who invested together lost or gained they would split in this manner." Rebbi Abun said, the statement looks reasonable if they bought a precious stone because he can say to him, without my ten denars you could not have bought anything. But anything that usually is split {smaller units that can be bought with less capital) one adds together and splits (proportionally to the capital invested). Rebbi Eleazar says, even things that usually are split [are divided evenly], because he can say to him, you have a lot of merchandise and you have difficulty selling it. 1 have little merchandise and turn it over rapidly and make as much as you do. So far if his merchandise was here. What if his merchandise was in Rome? He can say to him, by the time you went to Rome, I turn mine over rapidly and make as much as you do. There, we have stated: “If [the ox] gored an ox worth 200, the last one takes 100, the one before him 50, and the two first ones a gold denar.” Rebbi Samuel in the name of Rebbi Ze‘ira: The same holds for earnings. Rebbi Yose said, the statement of Rebbi Ze‘ira disagrees with Rebbi Eleazar. Rebbi Mani said, I asked this before Rebbi Yudan. He said to me: does Rebbi Eleazar not agree if they contracted between themselves that each can take according to his contribution? Oxen are as if contracted. He turned around and said this before Rebbi Yose, who answered him, they disagree explicitly: Rebbi Eleazar said, if nothing was said, they split evenly; Rebbi Ze‘ira said, if nothing was said, each takes according to his contribution. {This paragraph is a direct quote from Ketubot since the quote from “there” refers to here, Baba qama 4:1}.] Rebbi Eleazar said: You say that in case the tetradrachma lost or added value. But for earnings or losses they split evenly [Only results of financial operations are split per share. Results of personal effort by the shareholders are split evenly; they are socii pro aequa parte of Justinian’s legislation.] . That is difficult! One gave 100 denars and the other gave ten, and you say so? The colleagues say, he may say to him, by my contribution the merchandise rose. So far, if they ran after little merchandise [Expensive items, as explained in the parallel text.] . If there was much merchandise? Rebbi Abun bar Ḥiyya said, he may say to him, by the time you sold one piece, I am selling ten. That is, at a nearby place. If it was far away? Rebbi Hila said, he may say to him, by the time you go and return once, I am going and returning ten times. There [Mishnah Baba qama 4:1. Ex. 21:35 decrees that if an ox kills another ox, the owner of the attacking animal and the owner of the victim become co-owners of both the living and the dead animal. If the attacking ox attacks another one before it can be slaughtered, its co-owners now become co-owners with the owner of the second victim. The case quoted in the Mishnah is about an ox worth 200 zuz which attacks three oxen, each of which was worth 200 zuz but whose carcasses are not worth anything after the attack. Then the owner of the ox which was killed last takes half the combined value of the attacker and its victim as prescribed in the verse, 100 zuz. The owner of the second ox has a claim of 50% of the value of the combined value of the attacker and its victim. But since only 100 zuz remain of the value of the attacker and the victim is not worth anything, the second owner gets only 50 zuz. By the same argument, the owner of the first ox gets 25 zuz, the same amount as the owner of the attacker retains.] , we have stated: “If [the ox] gored an ox worth 200, the last one takes 100, the one before him 50, and the two first ones a gold denar.” Rebbi Samuel in the name of Rebbi [Ze‘ira]: The same holds for earnings [R. Ze‘ira interprets the Mishnah in Baba qama that in the company created by the attacking ox, the owner of the third victim contributed 200, the owner of the second 100, the owners of the first and of the attacker 50 each, and 50% of the value was lost as prescribed in the verse. Therefore, the Mishnah precribes proportional appropriations for a case which is not a financial operation; the Mishnah in Ketubot can be interpreted that in a company, all gains and losses have to be distributed in proportion to the capital invested.] . Rebbi Yose said, the statement of Rebbi Ze‘ira disagrees with Rebbi Eleazar. Rebbi Mana said before Rebbi Yudan: Does Rebbi Eleazar not agree if they contracted between themselves that each can take according to his contribution [Since in money matters, biblical law is not prescriptive.] ? Oxen are as if contracted. He turned around and said, they disagree explicitly: Rebbi Eleazar said, if nothing was said, they split evenly; Rebbi Ze‘ira said, if nothing was said, each takes according to his contribution [Since R. Ze‘ira is the later and higher authority, the Yerushalmi decides that all distributions must be proportional. The Babli, 93b, quotes the opinion attributed here to R. Eleazar in the name of Samuel as interpreted by Rav Hamnuna, it clearly decides that all distributions must be split equally.] .
MISHNAH: If somebody was married to four women when he died, the first one [The wife whose ketubah is dated earlier.] precedes the second [Since a ketubah is a mortgage lien, the holder of the earlier mortgage has the right to foreclose any real estate before the holder of the later mortgage may foreclose. The rules of this Chapter are in essence rules of privileged creditors in bankruptcy proceedings since they become irrelevant if the estate is large enough to satisfy everybody.] , the second the third, and the third the fourth. The first one swears to the second [She has to swear that during their husband’s lifetime she did not receive any downpayment on the ketubah, so that she is fully entitled to the sum she is receiving from the executors of the estate. The second wife can demand this oath because every penny the first one receives dimishes her chances of being fully paid by the remaining estate.] , the second to the third, and the third to the fourth; the fourth is paid out without an oath [No oath is due to any co-wife since all had been paid in full; she might have to swear to the heirs.] . Ben Nanas said, should she be preferred because she is the last one? She also should be paid only after an oath [There is a possibility that the prior wives might be disadvantaged if the fourth is paid too much: If any ketubah was satisfied by transfer of title of a field that turned out to be mortgaged and was repossessed by the lender, that wife then has regress on the remainder of the estate and, therefore, has a vital interest that the fourth wife not be paid too much. The Babli, 94a, has some additional reasons for Ben Nanas’s opinion.] . If all [ketubot] were executed on the same day, one who precedes another one even if only by an hour has acquired [precedence]; therefore in Jerusalem one used to note hours [Not only the date but also the hour of the signing of a contract were written into the document.] . If [the documents] were all executed at the same hour and there is only one mina, they split evenly [As already noted in Mishnah 4.] .
HALAKHAH: “If somebody was married to four women when he died,” etc. Rebbi Abuna in the name of Rebbi Samuel: Following Ben Nanas, if one document was produced against (the wife) buyers, they all divide evenly [This sentence makes no sense; the word האשה clearly is wrong. In the absence of parallel sources, the exact wording cannot be reconstrued. The consensus of the commentators is that one must read approximately: “if one document was produced against [several] buyers, they all divide evenly”. The deceased husband had taken a loan which cannot be satisfied by a single property; if the mortgage document is presented after the wives’ ketubot were satisfied, they all have to contribute equally to the satisfaction of the mortgage. Clearly, the title “Rebbi” given to Samuel here is misplaced. A similar statement is attributed to Samuel in the Babli, 94a.] . Rebbi Aqiba [This seems to be a scribal error.] said before Rebbi Mana: Does this not disagree with Rebbi Samuel, since Samuel said, sharpness of the judges [Samuel seems to indicate that the court has to investigate and choose the method of distribution which seems most appropriate for the case before them, to whom to give real estate and to whom money or securities. The translation of שוחדא is tentative. In the Babli, the word appears as שודא which either is derived from the Aramaic root שדי “to throw” (interpreted to mean that the court may “throw” the properties to the party it feels has the best claim) or it is identical with Galilean שוחדא because of the disappearance of ح in Babylonian speech. I am proposing to derive שוחד̇א from Arabic شحذ “to sharpen (a knife)”, Mishnaic Hebrew שחז.] ? As in the case of two mortgages written on one field, to whom they want to hand it over in possession they hand it over [If the field is too small to be useful as property if divided up. The holder of the second mortgage (assuming both were written on the same day) has to be indemnified with money; this is Samuel’s position in Babli 94a.] . And here, he says so [Should the court not direct the claimant to one field, with the other buyers contributing money?] ? Not with two mortgages, what about one [In his opinion, the case of one claimant against multiple owners is not covered by Samuel’s original statement.] ? He did not hear what Rebbi Abin said in the name of Samuel: There is no difference, whether two mortgages were written on two fields or two mortgages were written on one field [It seems that the deviation of this quote from the original in Halakhah 4 is a scribal error, but this cannot be proved. Samuel’s statement can easily be applied to our case of a single document covering a multiplicity of real estate.] , to whom the court decide they hand it over in possession. Rebbi instituted that one follows Ben Nanas in matters of annona [Latin annona, the prestations in kind required by the Roman army in the provinces; cf. Peah 1, Note 85. It is not clear what the relationship is between the statement of Ben Nanas and the collection of taxes. Since the tax was imposed on the community to be repartitioned by the local person responsible, the latter could impose an oath on the tax payer that he declared his situation honestly.] , head taxes, and real estate taxes [Greek ἀναφορά “report, listing”. In the opinion of A. Gulak, this is the yearly tax which people paid who had the right to farm imperial domains in perpetuity; cf. S. Lieberman, תוספתא כפשוטה מעשר שני, p. 710.] .
As the following [This paragraph refers to the Mishnah which states that the date of a document determines its status in foreclosure proceedings.] . Relatives of Rebbi Yose bought fields from the family of Bar Tapqan. Those from the family of Bar Tapqan went and married women, and gave them šeqi‘in [The word שקיעין as designation of a document appears only in this paragraph. Since שקע means “to sink, to go down”, it is reasonable to assume that שקיעין are mortgages on real estate the usufruct of which is given to the creditor to reduce the amount due and finally to retire the mortgage. This is called מַשְׁכַּנְתָּא דְּסוּרָא“Suran mortgage” in the Babli (Baba meṣi‘a 67b, 110a; Baba batra 35b, 38a), and corresponds, in the interest-charging Gentile environment, to the ἀντίχρησις of the Digests (20,1,11,1) and the Egyptian papyri (P. Gron. 11), “substitution of usufruct for interest”. It seems that the men gave their brides documents on the fields they had sold which were predated before the date of the sale.] . They came and wanted to attack the relatives of Rebbi Yose [To take the usufruct of the fields for a fixed number of years.] . Rebbi Mana said to them: I know that at the moment at which you bought these fields, these šeqi‘in were not before you [A predated document is invalid.] .
MISHNAH: If somebody was married to two wives when he sold his field and the first wife wrote to the buyers “I have no claims against you”, the second takes from the buyer, the first from the second, and the buyer from the first [If the husband died and his estate did not suffice to satisfy the second wife’s ketubah, she can have regress on the field since she did not sign away her rights. Since the first wife’s ketubah has to be satisfied before the second wife has any claim, the first can take the field which by the action of the second was no longer the buyer’s property but becomes part of the estate. But since the first had given up any claim to that field, the buyer can claim it back from the first. Therefore, all three claimants are forced to agree to a compromise to have any use of the property.] ; they go on in circles until they compromise between them. The same holds for a creditor [If a loan was given in the value of two fields which the borrower then sold, and the creditor wrote to the second buyer that he would not exercise his rights against him; if the loan is foreclosed, the creditor can take the first field; the first buyer can indemnify himself by taking the second field; the creditor can take it from the first buyer but the second buyer can reclaim it from the creditor, etc.] and a woman who is a creditor [An only wife whose ketubah was secured by two fields which were sold by her husband, and who wrote to the second buyer that she would not exercise her claim against him. In the last two cases it is necessary that the renunciation be for the second buyer since if it were for the first, the second would have no regress on the first.] .
HALAKHAH: “If somebody was married to two wives,” etc. Rebbi Yose said, this means that if somebody borrowed from two persons and the second comes and says to him, get up and let us settle [He realizes that the borrower is not in a position to repay the entire loan. Since his loan is an essentially unsecured second mortgage, he can settle with the borrower to receive part of the mortgaged property. Even if the secured first mortgage giver will in the end foreclose, the second has the usufruct in the meantime and will have saved something.] , and [the borrower] says, will not in the end the first hear of it and come to foreclose, he [the second lender] may say let us settle, and if he forecloses, he forecloses. If he settled [In the text, either מן is superfluous or a word is missing and it should read מן השני.] , one may assume that the first will come and foreclose. If he settled with the first [The first, secured, mortgage holder settled with the borrower and in the foreclosing took only part of the field while he could have taken all of it. The question now is whether the piece of land is remaining in the borrower’s hand or if it was assumed to be foreclosed and then returned to the borrower. In the second case, the borrower took possession after the date of the second mortgage and the second lender has no regress. In the first case, the second lender may foreclose.] , Rebbi Phineas said, such a case came before Rebbi Jeremiah who said, he settled [The second lender may not foreclose.] . Rebbi Yose said, did he not write “what I shall acquire” [If the loan contract stipulated that all the borrower’s present and future real estate holdings are mortgaged, there should be no difference in the status of the property left after a compromise with the first mortgage holder.] ? It happens only with an heir [If the future clause really was in the contract, the second mortgage holder can foreclose from the original borrower. But if the borrower died and the heir settled with the holder of the first mortgage, the remaining land was acquired by the heir, not the borrower, and is not subject to the second mortgage.] . Rebbi Ḥanina said, even with a creditor it can happen if he did not write “anything I shall acquire”, or if he said, “you shall not be paid except from this. [If the mortgage was written on a specific piece of land, the lender cannot foreclose anything else.] ” Rav Mattaniah said, this follows him who said, for ketubah but not for stipulations [The court stipulations required for any ketubah as enumerated in Chapter 4, in particular the “ketubah of male sons”. Whether this stipulation can be satisfied by foreclosure is discussed in the Babli, 55a, and the Yerushalmi, Baba batra 8:6 (16b 1.23). The answer is positive in the Yerushalmi, negative in the Babli. For the Yerushalmi, the renunciation by the mother of her claim against the buyer is not valid for her heirs; they are free to foreclose in any case.] . But for him who said, for ketubah and for stipulations, does it not return?