Rashi's Opinion: Rashi explains that it is already known that it was stolen.

Therefore, when the fourth wife comes to collect we make her swear and then give her a portion according to Ben Nanas. Ben Nanas considers the fourth wife's collection to be valid, even if the stolen field will be taken away from an earlier wife. The fourth wife therefore must swear, as she is causing the earlier wife who received the stolen field to lose out (as soon it will be taken away from her and there will be nothing left of the estate).

First Question: Rebbi has difficulty with this approach. When the fourth wife takes an oath, it seems that she has still not collected her share. This is indicated by the description of the case in our Mishnah that uses words such as "she gets paid" and "she should not get paid." If this is the case, why doesn't the previous wife simply take the field that the fourth wife is about to receive, as the fourth field definitely belonged to the deceased husband?

It is difficult to say that the Gemara's intent when it states "the field was found not to be his" is that we know there is a field among his possessions that was not his, but we are not sure of its identity.

Second Question: Additionally, it is difficult to understand Ben Nanas' reply "should she be rewarded because she is last?" in this context. It would seem that the Tana Kama is stating that the fourth wife doesn't swear because she will lose her collection, being that the earlier wife will eventually take the field out of her hands.

In a case where the last wife's collection is valid, for example if eventually all of the fields are found to have belonged to him, Ben Nanas would seemingly agree that she should collect without taking an oath.

Rach's Opinion: It therefore seems that the following explanation, authored by the Rach, is correct. Ben Nanas argues that the fourth wife would always swear in such a case, even when there are no rumors of a stolen field. Since it is possible that one of the fields could possibly have been stolen, and the earlier wife would not be able to retrieve the property from the fourth wife if this happened, the fourth wife always has to swear.

When the Gemara says "what are they arguing about?" it does not mean the literal case, but rather what is the reason that Ben Nanas makes the fourth wife swear. When the Gemara gives the case, it is saying that because of the possibility of finding out that one of the previous fields was stolen Ben Nanas would make the fourth wife swear, even if we have no such information that any field was stolen.

Their argument is regarding whether or not the woman will end up destroying the field. If she is scared that one of these fields will be found out not to have belonged to her husband, and other creditors will seize the field from her, she might not be careful to take care of the field. This might end up damaging the field. [Important: The Maharshal explains that the reason why this affects the argument of the Tana Kama and Ben Nanas seems unclear. This is why Rabeinu Tam explains the following.]

Rabeinu Tam's Understanding of the Rach: Rabeinu Tam says that according to Ben Nanas the fourth wife must swear so that she will not collect the field if she already grabbed the money owed to her due to her Kesuvah (without telling anyone). [The Maharshal explains that this oath helps keep the field out of her hands (if she does not deserve it), so it should go to the orphans who will make proper use of the field.]

Question: If we worry that a woman will end up damaging her field because she thinks it will be taken away from her by another creditor, every creditor should have to swear lest he suspect that a different earlier creditor will come take away his field! Every creditor who is seizing a field should similarly have to make an oath ascertaining that he did not already seize the money owed to him.

Answer: This doesn't make sense. Should we make a decree for fear of a creditor who we have no reason to believe even exists? In this case, however, we are making a decree for the earlier wives (who are present).

Question: What is it going to help if the orphans take the field? Perhaps they too will not take care of the field out of the fear that someone will claim that one of the fields belongs to them?

First Answer: Rebbi answers that the orphans will not let the field go to waste, as it is beloved in their eyes (because it belonged to their father).

Second Answer: Alternatively, Rebbi answers that they have no reason not to improve the field. If the field improves in value, it will be for their good as they can now have money to pay the creditor cash instead of allowing him to take the field.

However, the last wife will possibly let the field go to waste. Being that her collection is invalid, she cannot even chase away the creditor with money.

Question: According to the Rabbanan (Tana Kama), the last wife should also need an oath just like any other person who is collecting from orphans.

First Answer: Rashi explains that the Tana Kama is discussing adult orphans (from whom one does not need to take an oath), unlike the opinion of Abaye Keshisha in our Gemara.

Second Answer: Rebbi explains that it could even be according to Abaye Keshisha, and the case could be where she was exempt from this oath for other reasons.

Question: According to the opinion that does not hold of Abaye Keshisha, how does he explain the Gemara's statement earlier (87a) that one who collects from the possessions of orphans should only collect with an oath? How does he explain the Mishnah in Gitin (34b) that a widow only collects from the property of orphans with an oath?

Being that this is inapplicable regarding adult orphans, and we know that we only pay from the estate of orphans who are minors if we must do so to stop them from having to pay interest, in what case would we apply the statements above?

Answer: Rebbi answers that this opinion must hold of the opinion in Erchin (22a) that we also take from the estate of orphans who are minors for the Kesuvah of a widow. Being that as long as she does not collect her Kesuvah she is entitled to support from the estate, this is also considered (akin to interest that eats away at the estate) a pressing reason to allow her to collect immediately.

Question: One could still ask on this answer from the Gemara later (87a) that someone who collects from the possessions of orphans must only collect with an oath.

Earlier, Tosfos quoted the Ri as explaining that the Gemara was indeed talking about a divorcee who does not receive support from the estate. The Ri said this to get out of the question that the Mishnah in Gitin (34b) is seemingly redundant once the Mishnah earlier (87a) stated the same thing. [Therefore, being that the Ri understood that the collection occurs even when there is no support eroding the estate, how does this opinion understand the case of collecting from orphans?]

Answer: Rebbi answered that the Mishnah in Gitin has to state this law regarding a widow, in order that we should not mistakenly say that this also applies to a divorcee.

One might have thought that the Mishnah in Gitin (34b) was not even talking about a widow as they wanted her to collect in order that men should want to marry her. [The Maharsha explains that once the Mishnah in Gitin states explicitly that even a widow must swear despite the reasoning above, our Mishnah (87a) is also telling us that a widow who requires support can collect with an oath. Our Mishnah is not talking about a divorcee.]

Question: Why don't we ask a question from the Beraisa of Abaye Keshisha on the opinion that we do not collect from the estate of orphans unless their estate is being eroded by interest? Abaye Keshisha himself states that we collect from orphans who are minors with an oath!

Answer: One could answer that the case is where the creditor is a Nochri who must also take an oath to collect from orphans. This is in tune with Rabeinu Tam's common statement that we are allowed to accept an oath in Beis Din from a Nochri.

Even according to the Rashbam who says that one cannot accept an oath from Nochrim, he can explain that this case involves a Ger Toshav (who accepted upon himself not to be an idolater) who swears in the name of Hash-m.

Question: However, this is difficult from Abaye Keshisha's terminology "the orphans stated." This implies the orphans stated previously, implying that Abaye Keshisha is explaining either the Mishnah in Gitin (34b) or in Kesuvos (87a) which talk about collecting with a Kesuvah. [This would mean Abaye Keshisha's case is not involving a Nochri.]

Answer: Therefore, one must say this opinion (that argues on Abaye Keshisha) understands that the argument between Ben Nanas and the Rabbanan (Tana Kama) is regarding the law of Abaye Keshisha. This opinion holds like the Rabbanan who do not hold of Abaye Keshisha.

Explanation: The Gemara is referring to two documents of sale or gifts. Shmuel rules that the judges choose to whom to give the field (see Tosfos in Bava Basra 35a DH "Shuda d'Deini"for the different definitions of this concept).

Implied Question: This is unlike the Mishnah that states that if all of the documents were written for the same hour in the day and there is only one hundred Zuz to split, that all of the creditors split everything evenly.

Answer: The case there was discussing seizure based on a lien. In that case the lein is only from the time stated in the document. This is akin to a lien that must start on the next day of a document which states the date, as the document doesn't say whether it was written in the morning or evening (see Maharshal).

However, regarding a gift or a sale, whoever is clearly first (if such a difference is recorded in their document) on that day receives the gift or sale.

Tosfos' Explanation: Being that the main thing is what is stated in the documents, and from the document itself it is impossible to tell whose document was first, they both acquire at the same time.

Even if one person's document was written, signed, and given before the writing and giving over of the second document, and even though the witnesses who testify regarding when the documents were given over relay this information, it is irrelevant. This is because Rebbi Meir understands that the main witnesses are those who sign the document, not those who testify regarding the giving over of the document.

Proof: This is also apparent from Gitin (24b), where the Mishnah states that if someone wrote a Get to divorce one wife he cannot use it to divorce a second wife with the same name (the terms "adult" and "minor" there are not didactic, see Rashi ibid. DH "Gedolah").

The Gemara (ibid.) infers from this Mishnah that he still can use the Get to divorce the wife that it was intended for. Rabah states that this teaches that if there are two people named Yosef ben Shimon in a city, they can collect with a document saying a person owes them money (and the accused cannot claim that he owes it to the other "Yosef ben Shimon).

Abaye asked that if this is the style of the Mishnah there, it seems difficult to understand the earlier case in the Mishnah. The Mishnah states that in a case where a person is asked by a man with the same name if he would like to use a Get that he is no longer using "the Get is unfit to divorce with." Does this also mean that the first person can still use the Get? Doesn't the Mishnah state in Bava Basra (172a) that noone can use a document against one of the people in the city with the same name?

It must be that this document can be used because the main witnesses are the one who see that the Get was given over, as per the opinion of Rebbi Elazar.

This implies that according to Rebbi Meir (who holds that the main witnesses are those signed on the document) even the first person cannot use such a divorce, even though it will be apparent who gave the Get through the witnesses who see the giving of the Get. However, being that it is not clear from the witnesses signed on the Get, the Get cannot be used.

Rebbi's Explanation: Rebbi explains that the case is regarding a gift or sale that is done in a place where the transaction is enacted through the document.

In a place where the transaction is not done through a document, and it is mainly enacted through payment, taking ownership of the land, or Chalipin (a mode of acquisition through exchange) and the document is merely proof, everyone would agree that we rule Shuda d'Deini.

It is not necessary in such a place that it should be obvious from the signature of the witnesses who acquired the field first, being that the document is just being used as a proof.

Rabeinu Tam's Explanation: Rabeinu Tam explains this Gemara in a different fashion, and stated the following: When the Gemara says two documents are dated on the same day, it refers to someone who sold the same field to two people. Only one of them is the owner.

However, if two documents of two creditors arise, they split the field according to everyone as stated in the Mishnah. The case clearly is when their documents are dated on the same day.

The reasoning behind this is that both people are ostensibly telling the truth, and one hour in Yerushalayim is like one day (meaning that it cannot be determined which document is first). [The commentaries (Maharsha and Maharam Shif) say that there is another important underlying reason behind Rabeinu Tam's reasoning here.]

The Gemara proceeds to ask, let us say that Rav holds like Rebbi Meir that the witnesses who sign on a document cause the transaction to be valid. The Gemara means to ask that we can assume that the different sets of witnesses signed on the different documents at the same time.

It must be that being that the signature is the main part of the transaction, the giving over of the document was based on the signature. This way, even if the documents were given one after the other it is like they were given at the same time.

Where one writes the hour in the document, we assume that the document was given over after the signature. Here, too, we assume the giving over of the document was after the signature.

Even if you will suggest that it is impossible that both were signed at precisely the same time, the person involved might think that they were.

His mindset when he gave these documents one after the other was not that (the first) one should have more rights than the other. His mindset was that each should have the same rights as the other. This makes it as if he gave it over to both of them at the same time, and therefore the fact that one signature was technically earlier than the other doesn't make a difference.

Similarly, it is possible that the witnesses are the same in both documents. This could mean that when the people involved were dealing with the topic the witnesses signed the document, as the transaction could still be retracted or validated during this time (that they are dealing with finalizing the transaction, see Tosfos earlier 93a, DH "u'Mei'aimas"). This is why Rav says that they split the field.

The Gemara continues, Shmuel must hold like Rebbi Elazar who holds that the witnesses who witness the giving over of the document are the ones who cause the transaction to be valid. Once the document is transferred from the hands of the seller to those of the buyer, he is careful not to give them over at the same time, unless he does so with one not in front of the other.

This can be done as the transfer is up to the seller, as we say that a sale document can be written for the seller even if the buyer is not present.

However, the signature of these documents according to Rebbi Elazar is not the main part of the transaction, and is not relied upon. Therefore, Shmuel rules "Shuda d'Deini." This means that the expert judges have the power to give it to whomever they want. Being that it is (almost) impossible (and certainly improbable) that it was given over at the same time, we say that whoever the judges decide to give it to is the one who received his document first.

This is also the logic applied earlier (85b) in the case of two "Tuvyah's" both being Torah scholars, that we rule Shuda d'Deini. This is also the case in Gitin (14b) that is quoted later by our Gemara (middle of 94b).

This is also the case in Kidushin (74a) where it states that "the judge is trusted." This is also the logic used in Bava Basra (62b) regarding the case where there are palm trees in the field. This is also the logic used in a case in Shevuos (30b).

In the Gemara in Bava Basra (35a) when discussing Rav Nachman's statement, the Gemara compares the ruling of "Kol d'Alim Gevar" - "whoever is stronger wins" with Shuda d'Deini (asking why don't we rule Shuda in a case of Kol d'Alim). The Gemara there explains that Kol d'Alim Gevar is a different type of case, as one could technically find out who really deserves to win. In a case of Shuda d'Deini, it is near impossible. We do not even have any grounds to estimate the person's mindset.

However, in a case where both could have acquired at the same time, or two creditors or two Kesuvos that were issued on the same day, everyone agrees that they should split the money. [The Maharam Shif notes that Rabeinu Tam's perspective is that ruling that they should split the money is better if both people could be right, while the previous explanations held that Shuda is the better ruling in such a situation (see at length).]

This is because the sages did not want to cause creditors to lose, as it might make them not want to lend money out of fear that they will be able to get it back. They also did not want a Kesuvah to be deemed unreliable, in order that a widow will get some money to cause men to want to marry her.

However, regarding purchasers or gifts we rule Shuda d'Deini where it is reasonable that one was first and the other is lying. All of the above is a quote from Rabeinu Tam.

Explanation: Even though the writing of the first document preceded the giving over of the second document, Shmuel holds Shuda d'Deini in accordance with Rebbi Elazar who says that the witnesses of the transfer of a document are the ones who validate a transaction.

First Question: This is difficult. The Gemara in Bava Metzia (13b) implies that Shmuel holds like Abaye that once witnesses sign a document they create the debt stated in the document (the Gemara there was discussing a loan document).

The Gemara there asks that according to Shmuel who holds that we do not suspect payment and conspiracy (see Gemara in Bava Metzia 13a at length) and (like Abaye) that the witnesses signature creates a debt , what is the interpretation of the Mishnah's statement that if someone finds loan documents with Achrayus that he should not give them back?

The Gemara concludes that Shmuel said that Rebbi Meir said that a document that is without Achrayus cannot be used to collect. [After the Gemara there successfully answered the question from the part of the Mishnah regarding the loan document with Achrayus, it had to also answer a question about a document without Achrayus.]

From the fact that Shmuel was pushed into saying this answer according to Rebbi Meir, it is evident that he really holds like Abaye. If he didn't, he could have just answered according to the opinion of Rav who said that the Mishnah was referring to a case where there was no unconditional debt (see Rashi ibid. DH "Shetarei Hakna'ah").

According to Abaye, it appears that if one would first write a document and then (write and) give a document to someone else, the first document would be the real acquisition.

The Mishnah there stated that one may write a loan document for the borrower even though the lender is not with him. The Gemara there asks, let us suspect that he wrote that he would borrow in Nisan but the actual loan didn't happen until Tishrei. This would mean that the lender (if the borrower would default on the loan) would end up seizing property bought from the purchasers of the borrower (between Nisan and Tishrei) illegally.

Abaye answers that the signature of the witnesses on the loan document causes the debt to be enacted immediately. This implies that even though the borrower might have given over a sale document to purchasers before he handed the loan document to the lender, the handing over to the purchasers does not override the loan (and the lien of the loan stands).

At the end of the chapter there (Bava Metzia 20a), Abaye gives a similar answer. The Gemara discusses someone who finds a receipt for a Kesuvah. When the woman admits she received her Kesuvah, the receipt should obviously be returned to the husband. The Gemara says that we do not worry that she might have written the receipt in Nisan and only given it in Tishrei. Abaye there states that this is because when the receipt was written it was final. This leaves us with a contradiction in Shmuel (who seems to hold like Abaye, but yet holds that the giving of a document is more important than its witnesses' signatures).

Second Question: Even without this contradiction in Shmuel, Abaye himself seems to make contradictory statements. The Gemara in Sanhedrin (28b) implies that he also holds like Rebbi Elazar.

The Gemara there concludes regarding a gift document that two brother-in-law witnessed with a statement of Rav Yosef. Rav Yosef said that they should make the acquisition with witnesses who see the giving over of the document. Abaye asked him, didn't Rebbi Elazar himself say that if the document is forged (or unfit) that the transaction is invalid?

This implies that if there was no problem of the document having witnesses signed who were related, Abaye would rule that the witnesses for the giving over of the document validate the transaction. It is difficult to say that Abaye merely made this statement according to Rav Yosef's opinion (who held like Rebbi Elazar that the witnesses of the giving of the document validate the transaction) but that he himself did not really hold this way.

Third Question: Even without this difficulty, there is the difficulty that Rabeinu Tam rules that the Halachah is like Abaye (that the signatures on a document make a transaction take effect). Rabeinu Tam proves this from the fact that the Gemara in Bava Metzia (13a) takes pains to say that Shmuel holds like him. Additionally, it makes sense to rule like Abaye in this argument, as he is the latest authority mentioned there.

However, we also rule that the Halachah follows Rebbi Elazar that the witnesses of the giving over of the document validate the transaction. We rule that if a person wrote a document and then (wrote and) gave a similar document (i.e. sale of the same field) to someone else (before giving the first party his document), the person he gave it to first made the acquisition. [How can we reconcile these two rulings?]

Answer: Rebbi answers that when Abaye said his rule that witnesses who sign a document effect a transaction, this was when the documents are written on two different days, where it is apparent that one came first.

In our case it is apparent that the documents were written on one day. Therefore, even though one document was written before the giving (and writing) of the second document, the one transferred first is valid. This is because we do not say that the signature makes the document take effect unless it is obvious from the document itself that his rights to whatever is written in the document are before those of anyone else.

Question: The Gemara in Bava Metzia (20a) seems difficult to reconcile with this answer. The Gemara discusses someone who finds a receipt for a Kesuvah. When the woman admits she received her Kesuvah, the receipt should obviously be returned to the husband. The Gemara asks, why don't we worry that she might have written the receipt in Nisan and only given it in Tishrei (when the husband was obligated to pay her Kesuvah)? She might have sold her Kesuvah (between Nisan and Tishrei) for a small amount, and the husband will be able to take out his receipt and possess any land he would have had to pay for her Kesuvah (instead of giving it to the person who bought the Kesuvah) illegaly!

How can Abaye answer that the witnesses on the document (receipt) enact the acquisition (and it is as if she received payment in Nisan)? We should still suspect that on the day that she wrote the receipt she sold her Kesuvah before she gave over the receipt!

In light of what we said above, we should not say that the witnesses on a document enact an acquisition since it is not apparent from the receipt that it was written before the transfer of the Kesuvah!

Answer: Rebbi told me that we simply do not suspect (although it might be true) that on the same day that she wrote the receipt she sold her Kesuvah.

Observation: This is not the same incident as that in Bava Basra (151a).

Rach's Opinion: The Rach explains that we have a tradition that the ruling of Shuda d'Deini can only be done in cases involving land, and only by an expert judge like Rav Nachman in his generation.

Proof: his last aspect is apparent from our Gemara, where although Rav Sheshes was a great man, Rav Nachman told him that he is not a judge who can enact a ruling of Shuda d'Deini.

Tosfos' Opinion: It seems to me that Shuda d'Deini can also be ruled in cases involving movable objects, as this ruling is discussed regarding the case of the (money given to the) messenger in Gitin (14b).