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.rmwion yofip π'ψηίη η»3ψ .κιη ηοι

Mishnah 1: If somebody was married to two women when he died, the first one1 precedes the second2, and the heirs of the first precede the heirs of the second3. If the first one he had married died4, then he married the second one and he himself died, the second and her heirs5 precede the heirs of the first.

1 The wife whose is the heirs collect these from the estate dated earlier. ( 4:10). 2 Since a ketubah is a mortgage 4 The husband then inherits his lien, the holder of the earlier mortgage deceased wife's property; only after his has the right to foreclose any real death can the first wife's children estate before the holder of the later claim her ketubah as inheritance. mortgage may foreclose. The rules of 5 The widow is a mortgage this Chapter are in essence rules of holder, a creditor of the estate; the privileged creditors in bankruptcy first wife's children are heirs. The proceedings since they become heirs can lay their hands on the estate irrelevant if the estate is large enough only after all outstanding obligations to satisfy everybody. are paid. If the widow dies before she

3 If the wives die before they is paid, her claim passes ι ο her heirs. have collected their respective ketubot, HALAKHAH 1 463

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IP nojis I'}!* I*)?! npiip niia nto-;3 .maywpn ip

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Halakhah 1: "If somebody was married to two women," etc. The

Mishnah refers to ketubah, but for sustenance both are equal6. Between ketubah and burial, what has precedence7? Between ketubah and a loan attested to by witnesses, what has precedence8? Between ketubah and daughters' dowry, what has precedence? For him who says9, 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.

6 If both widows prefer not to asked, it seems that the burial is receive their ketubah but to be charged to public welfare. sustained by the estate, they have to be 8 For R. Tarphon in Mishnaiot 9:2- treated equally. The statement is also 3, the creditor has precedence since he in Tosephta 10:1. depends on the testimony of witnesses 7 The estate is only sufficient who might die but the widow depends either for the expenses of the man's on the written ketubah. burial or his widow's ketubah. The 9 R. in Halakhah 6:6, question is not answered, maybe against R. Johanan (Notes 93, 96-97). because it never arose in practice. The disagreement is also quoted in 13:3 Since the deceased has to be buried (36a 1. 15). before questions about payment are

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>γηί>> VP"PP πψ-ρη ΓΡΟψη·) .η>\ίηίη η>>3ψ£ τι>?"ρρ rowing .rmv/N-in τ · τ It says only, "she died". Therefore, if she was divorced, her status is that of a creditor10. As it was stated11: "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 ketubah12. 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.13"

10 If the first one was divorced, assume that the original text was that her claim has preference over the of the Tosephta and was shortened in claims of the second and her heirs. transmission. The Tosephta reads: 11 Tosephta 10:1. "The first ketubah of the first [wife] has 12 Then the husband died and his precedence over the second and her estate is not sufficient to satisfy all heirs; the second and her heirs have three ketubot. precedence over the second ketubah of 13 That text is elliptic but its the first." Any prior document has meaning is clear; it is not necessary to precedence over any later one.

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Hi' Ü33 15 IN "»3H 1JV DW W ON !71N ,1pi>n3 13H IJV DW ^Νψ} HALAKHAH 1 465 mpni ")QI< rain? ·ρ>\?ίη rnin nuh-p .ηΐ'ρ^ι

.•ρρ^τη

Ben Azay14 says15, the heirs of the first say to the heirs of the second:

If you are creditors, take what is yours and leave16; otherwise let us split evenly between yourselves and us17. Rebbi Aqiba said to him: Biblical inheritance "jumped" on the sons of the second; they take their mother's ketubah and come back to split18. Rebbi Mana19 said, they disagree if there is an excess denar20. But if there is no excess denar, even Rebbi

Aqiba will agree with Ben Nanas14 that both parties split evenly21. 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 Nanas14 agrees with Rebbi Aqiba that biblical inheritance "jumped" on the sons of the second; they take their mother's ketubah and come back to split18.

14 Later in the discussion, the institution, cf. Mishnah 4:10, whereas author is called Ben Nanas in ms., editio the widow (or her children in her princeps, and all ms. sources of the stead) has a contractual claim on the Babli, 90b. However, in the estate. If the estate is larger than the Constantinople edition with the sum of the two ketubot by at least "one commentary of Joshua Benvenist, the excess denar", there is no problem. All name is Ben Azay in both occurrences. children can inherit their mother's Ben Nanas is mentioned in Mishnah 5. ketubah and part of the remainder. But 15 This refers to the second case in if the estate is not sufficient and the Mishnah, where the first wife died payment of the "ketubah of male and the second becomes a widow. In children" instituted in 4:10 would that case, the husband inherited the eliminate biblical inheritance rules, the first wife's property; the first wife's question is whether rabbinic children have claim to inherit their inheritance can or cannot supersede mother's ketubah only by rabbinic biblical inheritance (which would treat 466 KETUBOT CHAPTER TEN all children equally except that a male sons of the second wife, the first firstborn counts for two.) alternative is operative. 16 The rabbinic institution of 18 The sons of the second wife "ketubah of male children" eliminates take their mother's ketubah under the the biblical laws of inheritance. The rules of creditors and the remainder is sons of the second wife take their biblical inheritance split among all sons mother's ketubah as inheritance from since rabbinic inheritance decrees their mother, not their father; what cannot eliminate biblical rules if the remains of the estate is taken by the estate is too small. sons of the first wife as "ketubah of 19 R. Mana II, contemporary of R. male children". In Tosephta 10:1, this is Yose ben R. Abun. presented as anonymous rule: "If there 20 It is very difficult to accept that is an excess denar, both parties take the second marriage invalidates the their mothers' ketubot and the "ketubah of male children" of the first remainder is split evenly; if there is no marriage. excess denar, the second wife or her 21 It is equally difficult to accept heirs take her ketubah and the that the ketubah of the second has the remainder is divided evenly. status of a creditor's claim only for the 17 If the sons of the second wife widow but not for their heirs. Since want to deprive the sons of the first of the argument of R. Yose ben R. Abun is their "ketubah of male children", they reasonable, there seems to be no lose their own ketubah and everybody possibility to claim a copyist's becomes an heir in biblical law. Since corruption. this would be to the detriment of the

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.1 ιπίκ n^ri jpN -mry? rmriy κνη mw

Debts diminish and, equally, debts add22. How is this? If there was a field which in the future would return in the jubilee year, you consider it virtual23 [property]. HALAKHAH 1 467

22 In determining whether an jubilee disappeared under the Israelite estate is larger than the sum of the monarchy; cf. Introduction to Tractate ketubot due, one deducts debts payable Sevi'it. The practical implication is by the estate and adds debts due to it. that the "ketubah of male children" is The Babli agrees, 90b. due even if the estate reaches the 23 The example is purely required size only by counting theoretical since the institution of the contracts far into the future.

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V?a*n vTtfl .o>pD?n ia»n3}i -i\?\?>a *I>N)O >a*n n>riyi ϊχ

How is that24? If he preliminarily married Rachel, definitively married

Leah25, and only then definitively married Rachel. In the opinion of the , Rachel has precedence; in the opinion of Rebbi Eleazar ben

Azariah she does not have precedence26. They say, even Rebbi Eleazar will agree that since in the end he definitively married Rachel, Rachel has precedence27. 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 on28. But if he said, all my properties shall be mortgaged to you only after twelve months, they become mortgaged 468 KETUBOT CHAPTER TEN only after twelve months. The status of the days in between29 is in dispute between Rebbi Meir and the rabbis30. In Rebbi Me'ir's opinion, the properties became pledged by the document31. In the rabbis' opinion, the properties became pledged by the money32.

24 This sentence does not refer to predates the sale even if it becomes anything; it seems to be a copyist's executable only later. error. 29 The days between the signing of 25 By combining preliminary and the contract and the end of 12 months definitive marriage (cf. Chapter 1, Note when the contract becomes executable. 24). 30 There are many disputes 26 In Mishnah 5:1, R. Eleazar ben between R. Meir and the other rabbis Azariah holds that a ketubah becomes and it is a matter of conjecture to executable only after definitive which dispute this refers. R. Moses marriage; therefore, Leah's ketubah in Margalit points to a baraita quoted in effect should predate Rachel's even the Babli Baba mesi'a 13 b, in which R. though Rachel's was executed earlier, Meir states that a loan contract allows at the time of her preliminary wedding. regress on alienated property only if For the rabbis, the date of the contract this was stated in the contract; but the is the determining factor. rabbis hold that such regress is a

27 R. Eleazar ben Azariah agrees matter of law and does not have to be that if both contracts are executable, stated explicitly. the dates of the contracts determine 31 The alienation clause becomes precedence. He only holds that before activated only after 12 months; it definitive marriage the contract is not cannot apply to properties sold during executable. these months.

28 The moment of the loan. If the 32 The moment the loan money debtor had sold any real estate in the changed hands, the alienation clause meantime, the creditor can have became executable whether written or regress on it since the contract not. HALAKHAH 2 469

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Mishnah 2: 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 evenly33. If there was an excess denar, these take their mother's ketubah and those take their mother's ketubah34. If the orphans say35, we accept the properties of our father for the value of an extra denar in order to take their mother's ketubak, one does not listen to them but one appraises the properties in court.

33 If there are n sons, the estate is ketubah would be interested to receive divided into n equal parts. If one of the ketubah rather than the inheritance. the children is a male firstborn, the Similarly, if the ketubot were equal but estate is divided into n+1 parts and the one wife had few sons, the other many, firstborn takes two. If there are no the few sons would gain if they could sons, only n daughters, the estate is split their mother's ketubah between divided into n equal parts. them and not have to share with their 34 The remainder is split evenly many halfbrothers. These are willing between the heirs. to take some property at an inflated 35 If the ketubot were unequal, the value in order to receive more than the sons of the mother with the larger other woman's sons.

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.rniri η:π Ο»Ϊ?οί "ΐοηητ i?\?io riniri ηιτ

Halakhah 2: "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 daughter36. If that is so, then even if there is no excess denar37? 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

Torah38. 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.

36 Halakhah 4:12, Note 238. 38 If the estate is large enough, one 37 If the "ketubah of male children" can distribute the "ketubah of male was instituted so that people would children" and still have an estate which increase their daughters' dowries in the is distributed according to biblical law knowledge that the money will be (Num. 27:6-11). Cf. M. A. Friedman, transferred to their grandchildren, it Jewish Marriage in Palestine, Tel Aviv does not seem reasonable to restrict the 1980, vol. I, pp. 381 ff. rules to sufficiently large estates.

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Rebbi Judah bar Pazi in the name of Rebbi Yose ben Hanina: If one of the brothers died, they all split evenly39. Rebbi Mana said, that is HALAKHAH 2 471 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 him40. If there was a (male) firstborn, you say the firstborn takes a double portion41. What does he take? A double portion among his house or among all brothers42? Rebbi Hoshaia stated: If there were two groups of daughters, they all split evenly43. 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 ketubotl44

39 If he dies without issue, all his Baba batra 107a, this latter opinion is paternal brothers inherit from him. attributed to Rav; Samuel holds that 40 If the estate had been "brothers at the distribution of the distributed by the time of his death, estate have the status of buyers from this would be a simple case of one another", i. e., their status is inheritance; in the absence of children determined only at the time of his maternal brothers would inherit. distribution. Since the Babli follows But if the estate was not yet Samuel in money matters, it will deny distributed, the question is whether the R. Mana's assertion. heirs are considered to have acquired 41 Deut. 21:16-17. In that example, 2 their part at the moment of their the firstborn takes /3 since there are father's death or whether they acquire only two sons. only at the time of the actual 42 Is the "ketubah of male children" distribution. Clearly, for the part of of the other wife exempt from the the estate which is distributed under biblical rule of the firstborn? biblical law, all surviving full and 43 Mishnah 4:10 refers only to halfbrothers inherit equally. But for male children. If all children are the "ketubah of male children", in the female, they each receive an equal second case, only the maternal brothers share of the estate. share his part, while in the first they 44 It is not clear why this question all share. R. Mana states here that an is repeated since R. Hoshaia does not inheritance is acquired at the time of deal with sons at all and a female death of the bequeather. In the Babli, firstborn has no special rights. 472 KETUBOT CHAPTER TEN

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At which point in time does one appraise? The students of Rebbi Mana say, at the end47. 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"48? But one assesses from the first moment49!

45 Probably one should read 11331, at that moment since the "ketubah of i. e., 11331 "your teacher" (R. Mana) male sons" depends on that value. instead of ·ρ33ΐ "the rabbis". 49 The moment of the father's 46 Almost certainly this should be death. This is asserted in the Babli, D'au) "one assesses". 91a/b, by Rav Nahman, the highest 47 At the time of distribution. authority in money matters. In his 48 If the share of each son in the opinion, the status of the estate is not "ketubah of male sons" is determined at connected with the point in time at the moment of their father's death, the which the heirs take possession of their value of the estate must be determined inheritance.

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Mishnah 3: If the estate contained expected property, it does not have the status of property in actual possession50. Rebbi Simeon says, even if there was no mortgageable property31, it does not count unless there is mortgageable property52 in the value of at least a denar more than the two ketubot. HALAKHAH 3 473

50 If the expected inheritance from special rights to any inheritance from a grandfather would bring the father's other members of their family coming estate over the limit for distribution of to the sons after the father's death. the "ketubah of male sons", it cannot be 51 Movables. counted until it becomes due. 52 Real estate. R. Simeon holds Similarly, the double portion of a male that a ketubah is a mortgage lien and, firstborn is restricted to "all that is therefore, cannot be satisfied by present with him" at his father's death movable property. (Deut. 21:17); the firstborn has no

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Halakhah 3: "If the estate contained expected property," etc. Rebbi Mana said, they disagree about the basic claim of the two ketubot53. 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 474 KETUBOT CHAPTER TEN from bronze and bedspreads54. Rebbi in the name of Rebbi

Johanan: Only from bedspreads of that night55. Rav Samuel bar Nahman in the name of Rebbi Johanan: The people in Arabia routinely collect from camels and spices56. Similarly, only from spices of that night57?

Rebbi Huna's widow collected from movables following her place's custom58.

53 It is not totally clear what "the 56 Since they are bedouin traders, basic claim of the ketubah" means. Is it they do not possess any real estate; only the required 100/200 zuz or is it their equivalent of real estate are that amount plus any dowry which camels (affirmed in the Babli, 67a, by became the husband's property, to the same authors); their object of trade exclude any sum the husband wrote is spices. into the ketubah in excess of minimum 57 Since it would be nonsensical to and dowry? The second version is require the spices brought by the bride preferred by the classical to be available to the widow; the commentators. condition about bedspreads is also 54 Articles of trade, at places were nonsensical. were not traditionally land 58 The famous Gaonic decree that owners. ketubot be paid from movables is 55 He wants to restrict the nothing but an application of the recovery of the ketubah to the articles Yerushalmi rule that local conditions of the dowry brought by the bride. overrule general statements.

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Mishnah 4: If somebody was married to three women when he died, the ketubah of one was a mina59, 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 denars60. If it was 300, the one who claims a mina takes

50, the one who claims 200 takes a mina39, and the one who claims 300 takes six gold denars60. Similarly, if three who invested together lost or gained they would split in this manner61.62

59 100 zuz. applied to the case that the amount 60 1 gold denar was worth 25 available in bankruptcy proceedings is silver denars. 3 gold denars equal 75 not sufficient to cover all claims of zuz, 6 gold denars 150 zuz. equal rank. 61 This refers to the proportional At first glance, it seems that the distribution of the last case. Loss and Mishnah is inconsistent, applying three gain of a stock company are distributed different rules to three different cases. per share. Since the Mishnah must guide the judge 62 This Mishnah poses difficult to correctly apportion payment of problems. First, it deals with a claims c„ c2, c, if the available amount scenario that cannot arise since a < c, + c2 + c,, for all a between 0 and

Mishnah 1 stated that a ketubah which c, + c2 + c3, it is obvious that the precedes in time has to be satisfied Mishnah has to be explained by one from the estate before the later single consistent formula or algorithm. ketubah can be claimed. Therefore, the In addition, the algorithm must be case of the Mishnah presupposes that applicable to any number η of claims. the husband married three woman In the tenth Century, Saadya Gaon simultaneously. While this is possible suceeded in reducing the number of in theory, it is excluded in practice. different rules employed in the The problem is a practical one if Mishnah to two (Osar Hageonitn 476 KETUBOT CHAPTER TEN

Ketubot p. 310). A complete discussion quite different; in both Talmudim the of the Geonic treatment of the Mishnah proposed explanation results in a was given by I. Francus, O'juwn no'l» procedure which is not monotone; i. e., -own) I3B-1S9 'JO ,ΝΠ"Ί31 Π31»0 WITM it is possible that if the available 3'"i-?7¥f> (KDwn (Μ. H. Katzenellenbogen amount a is increased, the payouts for Memorial Volume). some claimants are decreased. The The first complete solution of the solutions both of Aumann/Maschler problem of finding a uniform rule for and Balinski are monotone, increasing all three cases was given by R. J. with a. Aumann and M. Maschler, Game Balinski shows that the Mishnah can Theoretic Analysis of a Bankruptcy be understood in terms of a different Problem from the , J. Econom. distribution problem in Mishnah Baba Theory 36(1985) 195-213. In the mesi'a 1:1, as indicated by Alfasi framework of the theory of (.Ketubot 10, 51b in the Wilna ed.). cooperative games, the authors show Since this problem is also the basis of that the distribution of the Mishnah the arguments in both Talmudim, corresponds to the nucleolus strategy in Balinski's method is explained first. In game theory. Using only elementary Baba mesi'a there are two claimants mathematics, a single distribution for an amount of 1. The first claims it formula covering all cases was given 1 all, the second claims /2. Both claims by M. Balinski in: Quelle equite, Pour are of the same status. Then the first is la science 311 (September 2003) 82-87; 3 1 awarded /4, the second /4. While the What is Just? Am. Math. MONTHLY claims are in ratio 2:1, the awards are 112(2005), 502-511. While these in ratio 3:1. The reason given is the authors succeed in explaining the rule ascribed to Symmachos, a student Mishnah in itself, they do not explain of R. Mei'r, that "money in doubt is split the interpretation given to the Mishnah evenly" [Babli Baba mesi'a 2b, Baba by the Talmudim. Nor do they explain qama 35b; Yerushalmi Baba mesi'a 8:5 why in both Talmudim the Mishnah is (lid 1. 18); cf. Chapter 2, Notes 9 ff.L rejected out of hand. The explanation Since the second claimant asks only for of the Babli is in language close to the l!2, the other half is awarded to the Yerushalmi but translated into first claimant. The first half is in mathematical formulas the results are doubt; therefore it is split evenly HALAKHAH 4 477 between the two parties, resulting in (1) Pi(a) = mm{ciHX) where λ is the awards mentioned. chosen so that ρ,(α) + P2

In order to arrive at a mathematical An inspection of the formulas shows formulation, assume that η claims c, are that the distribution is symmetric about advanced, the middle value of the claims: c, < c2 < ... < c„. (2) p,(M-x) + pAM+x) = ct. If several claims were identical they This means that the distribution for Μ would be consolidated into a single < a < S is determined if it is claim and the award split evenly determined for 0 < a < M. In the between the participants. For any Mishnah here, it should be sufficient to amount a available for distribution, the indicate the distribution up to an estate payout for claimant i is p,(a), of 300 if the sum of claims is 600. But ρ,(α) + p2{a) + ... + p„(a) = a. the generalization of the procedure for We also introduce the sum of the η = 2 to η > 2 is not trivial. As Balinski claims, S = c, + c2 + . . . + c„ and M= points out, an arbitrary distribution S/2. For η = 2, Symmachos's argument function which yields the given values determines the payouts uniquely: for a = c, and satisfies (2) is compatible If a < c„ the entire sum is in dispute, with the Mishnah. His own solution is p,(a) = p2(a) = a/2. to postulate (1) for i = 1, . . . n. Then Therefore, p,(c,) = p2(c,) = c,/2. (2) is satisfied and the distribution is If c, < a < c2, the amount a - c, monotone. For example, belongs to claimant 2 and (p,(400),p2(400),p3(400)} = p,(a) = c,/2, {100-p, (200),200-p2(200),:S00-p3(200)} p2(a) = a-ci+cj 2 = a-c,/2' = (50,125,225). and p,(c2) = cj2, p2(c2)= c2-c,/2. The problem with this solution, as If c2 < a, both claimants have equal with most other solutions proposed in rights to the excess over c,, the last 1000 years, is that the p,(a) = c,/2 + (a - c2)/2 Talmudim take another view. The p2(a) = crc,/2+(a-c2)/2 = (a+crc,)/2. solution of the Babli is easily described If a = c2+c, = S, all claims are satisfied as a recursive computational procedure. in full. Using the function minU,;y) = We assume that p,(a), . . . ,Ρί-,(α) have smaller of χ or y, Balinski did express been determined; leaving an amount at the formulas given above by 478 KETUBOT CHAPTER TEN to be distributed. We determine pXa,)· unacceptable; the procedure of the

If Ci > ah pjioi) = a,l{n-i) for ;' = /,... n. Mishnah has to be rejected. Otherwise, all claims larger than c, are The explanation of the Yerushalmi consolidated into one claim Ci = Cj+] + (cf. Note 69) is not so clearly stated but . . . + c„ and Pi(a,) is the payout it seems to be the following: The assigned to claimant #i in the two- procedure also is recursive. If ct > a,, person distribution problem for claims Pj(di) = a,/(«-i) for ;' = ;',... n. Ci, Ct and amount a,. The fictitious Otherwise, one considers all two-person second claimant then receives Pi(a,) = problems between claimants i and i+l,. aUl and the process continues. .., n. In praxi, this means that one has

In the example of the Mishnah, c, = only to split between ct and e„. If ct <

100, c2 = 200, c3 = 300. For a = 100, by at < c„ then p^ad = cj2. If c„ < at then the first alternative ρ,(100) = 100/3 for write at = cn + δ. Claims η and i all j. For a = 200, c, = 100, C, = 400. overlap to the amount ct - δ. This Therefore, 100 is assigned to the means that second party and 100 is split evenly. p,(a,) = δ + (c, - δ)/2 = (c, + δ)/2. This yields p,(200) = 50, 200) = 150. For a < M, the numbers obtained for Since 200 > 150, the latter amount is Babli and Yerushalmi coincide; the split evenly, resulting in p {100) = 2 Yerushalmi's method also is not p,(200) = 75. For a = 300, one sees monotone. The results for a > Μ that p,(300) = 50, P,(300) = 250; disagree. For example, for the data of p (300) = 100 = 200/2, p (300) = 50 + 2 3 Mishnah 4, the Yerushalmi gives 200/2 = 150. This explains the ρ ,(400)= 100, p2(400)=100, p3(400)=200 numbers stated in the Mishnah, but while the Babli gives what about a = 101? In that case, i>,(400)=50, />,(400)=350; p2(400)=100, p,(101) = 50, />,( 101) = 51; p2(101) = />3(400)=250. p,( 101) = 51/2 = 25.5. This clearly is

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αϊ .nw? riipt»in rop n^k dw ρκ .ϊΜαψ sy1?? Νη^πη .vo>>qio

tiDin nin io\y vwivn ntti π-ιονπ>ν N*rnw • - - . :|T .. ρ . . _ .. _ τ ! - τ -: --τ - : τ τ HALAKHAH 4 479

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Halakhah 4: "If somebody was married to three women," etc. Samuel said, sharpness of the judges63. 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 over64. The Mishnah disagrees with Samuel: "If the estate is only

100, they divide equally.65" Was this said for the sharpness of the judges66? And did we not state: If the heirs inherited an instrument of indebtedness, the male firstborn takes a double portion67; 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 judges68? 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.

63 Samuel seems to indicate that feels has the best claim) or it is the court has to investigate and choose identical with Galilean χτπιι» because the method of distribution which seems of the disappearance of c in most appropriate for the case before Babylonian speech. I am proposing to them, to whom to give real estate and derive sinn» from Arabic i»wj "to to whom money or securities. sharpen (a knife)", Mishnaic Hebrew The translation of xmw is tentative. tro. In the Babli, the word appears as miu> 64 If the field is too small to be which either is derived from the useful as property if divided up. The Aramaic root 'lis "to throw" holder of the second mortgage (interpreted to mean that the court may (assuming both were written on the "throw" the properties to the party it same day) has to be indemnified with 480 KETUBOT CHAPTER TEN money; this is Samuel's position in Babli counted as ready money, not as future 94a. claim (cf. Note 50). In Babli Baba 65 Does this not indicate that all batra 124a and in Tosephta three women have to be treated 6:17 the firstborn is given the right to exactly equally? refuse a double portion of secured 66 The Mishnah speaks only about future claims and then not pay double the value, not about the mode of part of future secured claims against distribution. the estate. 67 Since a documented claim is as 68 This is not a case that allows of good as collected, such a document is judicial discretion.

Π2* ΓΡΥ>>!?ψη ηνΠΠψ} -it ni>C τη ni\!h05 Iwiovp (33d line 62)

^N"! ΐϋ JVN rop iO .7b ΓΠ)3Ν .rowion oy yn£ π»?ψπ

Samuel said, if they empower one another69. If the third empowered the second to deal with the first. She said to her, is not a mina due to you70? Take 50 and leave!

69 To deal separately with the co- proportional to the claims. It is wife claiming the smallest amount. In difficult to see why all parties should the Babli, 93a, Samuel explains that the agree; the procedure of the Mishnah is second wife empowered the third to eliminated from practical use. represent her also; cf. Note 62. Unless 70 If the amount available is larger all parties agree to the procedure, the than a mina, the first has to split the estate has to be distributed mina only with one co-wife.

ion ."pplpin in n'riin iN inns wfr rw pi (33d line 64)

.mw ίκ m>on yi?t?n rm>n\ya ι»κ dn*t ntd .irv^N m τ τ : τ τ τ •· w - ν - τ : ιτ ν ·. - τ : - τ τ τ*τ : ν ·

.rnwii ιπ> inm ρ-οπ ünq irp ·)ππ .Ν>ψί?"| .nwi "pp!?in "ρπ>ΐ3 "το?π!?ι ji)?>p »in •>!·> ,ΓΡ> ->£>)o Kin ."ΐηρκ W"! HALAKHAH 4 481

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"ΙΟΝ Ν30 >31 ,-ny^N >2Π ϊ» N-pyt >t?V "ΙΟΝ ."OW? - τ ττ τ"τ : ·.· τ · τ ; - τ τ τ :

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)ι?Τ\Ό .-ION Ν "in >3-) ,nw? pp>in lorip .ION >31

.it»? >a> lpoi3 nn it»? >a!p t>oi3 n?

"Similarly, if three who invested together lost or gained they would split in this manner." 73Rebbi Eleazar said: You say that in case the tetradrachma lost or added value. But for earnings or losses they split evenly74. 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 merchandise75. If there was much merchandise? Rebbi Abu η bar Hiyya 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. There76, 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 earnings77. Rebbi Yose said, the statement of Rebbi Ze'ira disagrees with

Rebbi Eleazar. Rebbi Mana said before Rebbi Yudan: Does Rebbi Eleazar 482 KETUBOT CHAPTER TEN not agree if they contracted between themselves that each can take according to his contribution78? 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 contribution79.

71 Instead of this word "was as required from the text below. running", Sefer Ha'ittur 42a reads niin 73 This paragraph has a differently "it was". The reading of the ms. may be worded parallel in Baba qama 4:1 (by a confirmed as lectio difficilior. different editorial team) which 72 The name is missing in the ms., explains the somewhat cryptic wording it was added from the parallel in Baba here: qama, supported by Sefer Ha'ittur 42a, on onif v!S"p .113 ion .-pp^in in -jd n'riin iN inns t»?b il?'v»nw pi -QT .·ρϊ>? pa?)? rm'in ΗΪ »ijh NJi-wy '>I!?'N n>> ιο'η bbn .n'>no .ρ>η> -m ib'aNi -nyb '3i ION .^ρ^Γη yspNb pmn pbn> is-iiw NJ^i 7 >7n N'onna NW .Njmta Nyio ΓΙΝΙ ιηυ rji'i N'oona JIN n'i? in>n i"onna rm?n .in? rmn? i''\?o:p_? ππ»πψ·ι lit? ly .13 >oni n't? lariJipi ^aq .•J3 '\?oi 'T'la n?njipi -jan Nit* 'oi*i> p'>v Jin^t -ry ,n'> ίο'ο >>?>7 .'ni-13 rowii '3"! ,3m nvir o'iiviNin o'iwi tn o'woq i'Jabwi nip liinNn .i3'?n ion .ItV^ '3"Tf N}'>31 OW? iWlOV in'3'3 ijjpn οΝψ >ai niin n> .'> u?n .iii> '31 'nip nn»yip .'?n '31 *inN ,'oi' '3i 'oip ri*ioNi -im .in o'ijiw? oniw .io'3 '?> nn io'D >a> nw lariV .ion Nvyt '31 .niwg vp>in V?£i? .ιών "ny!? 'si .»>>>$ wri'a? ,γρ> -ion .it?'? 'a!p nn ic? '?> rrc "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 HALAKHAH 4 483 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).

74 Only results of financial second victim. The case quoted in the operations are split per share. Results Mishnah is about an ox worth 200 zuz of personal effort by the shareholders which attacks three oxen, each of are split evenly; they are socii pro which was worth 200 zuz but whose aequa parte of Justinian's legislation. carcasses are not worth anything after 75 Expensive items, as explained in the attack. Then the owner of the ox the parallel text. which was killed last takes half the 76 Mishnah Baba qama 4:1. Ex. combined value of the attacker and its 21:35 decrees that if an ox kills another victim as prescribed in the verse, 100 ox, the owner of the attacking animal zuz. The owner of the second ox has a and the owner of the victim become claim of 50% of the value of the co-owners of both the living and the combined value of the attacker and its dead animal. If the attacking ox victim. But since only 100 zuz remain attacks another one before it can be of the value of the attacker and the slaughtered, its co-owners now become victim is not worth anything, the co-owners with the owner of the second owner gets only 50 zuz. By the 484 KETUBOT CHAPTER TEN same argument, the owner of the first company, all gains and losses have to ox gets 25 zuz, the same amount as the be distributed in proportion to the owner of the attacker retains. capital invested. 77 R. Ze'ira interprets the Mishnah 78 Since in money matters, biblical in Baba qama that in the company law is not prescriptive. created by the attacking ox, the owner 79 Since R. Ze'ira is the later and of the third victim contributed 200, the higher authority, the Yerushalmi owner of the second 100, the owners of decides that all distributions must be the first and of the attacker 50 each, proportional. The Babli, 93b, quotes and 50% of the value was lost as the opinion attributed here to R. prescribed in the verse. Therefore, the Eleazar in the name of Samuel as Mishnah precribes proportional interpreted by Rav , it clearly appropriations for a case which is not a decides that all distributions must be financial operation; the Mishnah in split equally. Ketubot can be interpreted that in a

nipiip rowion ποτ η>ψ3 νιηκ π>πψ η? :n rwv» (foi. 33c)

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θ33 ·)3 .η^^ψι Ν'ρψ Jijn?? rpyi-m-! l^iD νη .njnivn visji Ν!? Ν'ΪΊ «IN rnsv» Γφ-ιηκ κ·>ηψ >??>? >?ι

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D3>? D\l> VN1 JinN JliN^V .DiVW VlJliD

.iiwa nipipin

Mishnah 5: If somebody was married to four women when he died, the first one1 precedes the second2, the second the third, and the third the fourth. The first one swears to the second80, the second to the third, and the third to the fourth; the fourth is paid out without an oath81. Ben HALAKHAH 5 485

Nanas said, should she be preferred because she is the last one? She also should be paid only after an oath82. 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 hours83. If [the documents] were all executed at the same hour and there is only one mina, they split evenly84.

80 She has to swear that during the fourth is paid too much: If any their husband's lifetime she did not ketubah was satisfied by transfer of receive any downpayment on the title of a field that turned out to be ketubah, so that she is fully entitled to mortgaged and was repossessed by the the sum she is receiving from the lender, that wife then has regress on executors of the estate. The second the remainder of the estate and, wife can demand this oath because therefore, has a vital interest that the every penny the first one receives fourth wife not be paid too much. The dimishes her chances of being fully Babli, 94a, has some additional reasons paid by the remaining estate. for Ben Nanas's opinion. 81 No oath is due to any co-wife 83 Not only the date but also the since all had been paid in full; she hour of the signing of a contract were might have to swear to the heirs. written into the document. 82 There is a possibility that the 84 As already noted in Mishnah 4. prior wives might be disadvantaged if

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>?ψ ν?1 W ^ ηηονί >3ψ ι>3 ,Ν>>?ψ n't) .^κιοψ nw? 486 KETUBOT CHAPTER TEN

.•pp>>0)0 V7 n'S ^TV 100 ns .*τηι* rrjty ty iHgy πνιοψ

Λ?Μ rn N-rns niii33Nn i^ij^aii ίού-ΐΝΐ m vron t- I ν τ τ ί τ - - τ : - : · Halakhah 5: "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 evenly85. Rebbi Aqiba86 said before Rebbi Mana: Does this not disagree with Rebbi Samuel, since Samuel said, sharpness of the judges63? As in the case of two mortgages written on one field, to whom they want to hand it over in possession they hand it over64. And here, he says so87?

Not with two mortgages, what about one88? 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 field89, to whom the court decide they hand it over in possession.

Rebbi instituted that one follows Ben Nanas in matters of annona90, head taxes, and real estate taxes91.

85 This sentence makes no sense; contribute equally to the satisfaction of the word π»νπ clearly is wrong. In the the mortgage. absence of parallel sources, the exact Clearly, the title "Rebbi" given to wording cannot be reconstrued. The Samuel here is misplaccd. A similar consensus of the commentators is that statement is attributed to Samuel in the one must read approximately: "if one Babli, 94a. document was produced against 86 This seems to be a scribal error. [several] buyers, they all divide 87 Should the court not direct the evenly". The deceased husband had claimant to one field, with the other taken a loan which cannot be satisfied buyers contributing money? by a single property; if the mortgage 88 In his opinion, the case of one document is presented after the wives' claimant against multiple owners is not ketubot were satisfied, they all have to covered by Samuel's original statement. HALAKHAH 5 487

89 It seems that the deviation of and the collection of taxes. Since the this quote from the original in tax was imposed on the community to

Halakhah 4 is a scribal error, but this be repartitioned by the local person cannot be proved. Samuel's statement responsible, the latter could impose an can easily be applied to our case of a oath on the tax payer that he declared single document covering a multiplicity his situation honestly. of real estate. 91 Greek αναφορά "report, listing".

90 Latin annona, the prestations in In the opinion of A. Gulak, this is the kind required by the Roman army in yearly tax which people paid who had the provinces; cf. Peak 1, Note 85. It is the right to farm imperial domains in not clear what the relationship is perpetuity; cf. S. Lieberman, νπββιγ between the statement of Ben Nanas 'JW -|W»Ö ÜUTOB3, p. 710.

.·)£9ΓΙ 137 γ^Η IP Ti>>i?D P?^ >317 -NT?? (34a line 15)

»V? ."ρνρψ "pn!? "pl^N .yvyi ·ρη> pip,31 ">37 YO'N "P^W

"T? VI? NW .NDO >31 γ0 ΊΟ^ >3Tf >3nj?3 Njnj^ip

.·)ό>)?7)7 Ν'^ρψ ήηη ΗΪ Nrm>j?n

As the following92. 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 seqi'in93. They came and wanted to attack the relatives of Rebbi Yose94. Rebbi Mana said to them: I know that at the moment at which you bought these fields, these seqi'in were not before you95.

92 This paragraph refers to the s?i?u> means "to sink, to go down", it is

Mishnah which states that the date of a reasonable to assume that τ>νρ\» are document determines its status in mortgages on real estate the usufruct foreclosure proceedings. The word of which is given to the creditor to

I'B'p© as designation of a document reduce the amount due and finally to appears only in this paragraph. Since retire the mortgage. This is called 488 KETUBOT CHAPTER TEN jqitn xr;33i»ö "Suran mortgage" in the It seems that the men gave their Babli (Baba mesi'a 67b, 110a; Baba brides documents on the fields they batra 35b, 38a), and corresponds, in the had sold which were predated before interest-charging Gentile environment, the date of the sale. to the άντίχρησις of the Digests 94 To take the usufruct of the (20,1,11,1) and the Egyptian papyri (P. fields for a fixed number of years. Gron. 11), "substitution of usufruct for 95 A predated document is invalid. interest".

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Mishnah 6: 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 first96; they go on in circles until they compromise between them. The same holds for a creditor97 and a woman who is a creditor98.

96 If the husband died and his the buyer's property but becomes part estate did not suffice to satisfy the of the estate. But since the first had second wife's ketubah, she can have given up any claim to that field, the regress on the field since she did not buyer can claim it back from the first. sign away her rights. Since the first Therefore, all three claimants are wife's ketubah has to be satisfied forced to agree to a compromise to before the second wife has any claim, have any use of the property. the first can take the field which by 97 If a loan was given in the value the action of the second was no longer of two fields which the borrower then HALAKHAH 6 489 sold, and the creditor wrote to the 98 An only wife whose ketubah second buyer that he would not was secured by two fields which were exercise his rights against him; if the sold by her husband, and who wrote to loan is foreclosed, the creditor can take the second buyer that she would not the first field; the first buyer can exercise her claim against him. In the indemnify himself by taking the second last two cases it is necessary that the field; the creditor can take it from the renunciation be for the second buyer first buyer but the second buyer can since if it were for the first, the second reclaim it from the creditor, etc. would have no regress on the first.

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Halakhah 6: "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, up and let us settle", 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 settled100, one may assume that the first will come and foreclose. If he settled with the first101, Rebbi Phineas said, such a case came before Rebbi who said, he settled102. Rebbi Yose said, 490 KETUBOT CHAPTER TEN did he not write "what I shall acquire"103? It happens only with an heir104.

Rebbi Hanina 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.105" Rav Mattaniah said, this follows him who said, for ketubah but not for stipulations106. But for him who said, for ketubah and for stipulations, does it not return?

99 He realizes that the borrower is lender has no regress. In the first case, not in a position to repay the entire the second lender may foreclose. loan. Since his loan is an essentially 102 The second lender may not unsecured second mortgage, he can foreclose. settle with the borrower to receive part 103 If the loan contract stipulated of the mortgaged property. Even if the that all the borrower's present and secured first mortgage giver will in the future real estate holdings are end foreclose, the second has the mortgaged, there should be no usufruct in the meantime and will have difference in the status of the property saved something. left after a compromise with the first 100 In the text, either τ» is mortgage holder. superfluous or a word is missing and it 104 If the future clause really was in should read ,ϊΐ»ίι p. the contract, the second mortgage 101 The first, secured, mortgage holder can foreclose from the original holder settled with the borrower and in borrower. But if the borrower died the foreclosing took only part of the and the heir settled with the holder of field while he could have taken all of the first mortgage, the remaining land it. The question now is whether the was acquired by the heir, not the piece of land is remaining in the borrower, and is not subject to the borrower's hand or if it was assumed to second mortgage. be foreclosed and then returned to the 105 If the mortgage was written on borrower. In the second case, the a specific piece of land, the lender borrower took possession after the date cannot foreclose anything else. of the second mortgage and the second 106 The court stipulations required HALAKHAH 6 491 for any ketubah as enumerated in The answer is positive in the Chapter 4, in particular the "ketubah of Yerushalmi, negative in the Babli. For male sons". Whether this stipulation the Yerushalmi, the renunciation by the can be satisfied by foreclosure is mother of her claim against the buyer discussed in the Babli, 55a, and the is not valid for her heirs; they are free Yerushalmi, Baba batra 8:6 (16b 1.23). to foreclose in any case.