Resources for Kesubos 94
1. The גמרא suggests that the case where the חכמים and בן ננס disagree is where there are multiple wives whose כתובות are on different days and before the last wife collected her כתובה they, according to רש"י, found out that the piece of land that had been given to the first wife was stolen. No claim had yet been made but a claim would eventually come. The מחלוקת is do we say מה שגבה בעל חוב מאוחר גבה and if the fourth wife takes the last piece of land she’ll be able to keep it or not. תוספות asks that if the last wife hadn’t been גובה yet then why do we allow her to take the land and come into this מחלוקת? If we know the first piece of land was stolen, why don’t we just give the remaining piece of land to the first wife! Therefore תוספות has a different פּשט. The שיטה מקובצת brings from רבינו יונה that רש"י understood that this is exactly like the case on צ"ג ע"א of יצאו עליה עסיקין where once the person is קונה we don’t just undue the sale because there are rumors that its stolen. Similarly, in our case we would tell the first wife that since she was already גובה, אחוי טירפך! The ריטב"א who agrees with תוספות seems to implicitly address this and says that רש"י said it is known that it was stolen and that’s as if it was already collected by ב"ד.
2. The גמרא brings a מחלוקת between רב ושמואל in a case where two שטרות were given to two different people with the exact same date and the exact same piece of land. רב says we say יחלוקו and שמואל says we say שודא דדייני. The גמרא explains that their מחלוקת is based on whether you say עדי חתימה כרתי or עדי מסירה כרתי. רש"י, תוספות and many other ראשונים hold that our גמרא is specifically talking about a sale or gift of land, but if it was a loan then the דין would be יחלוקו according to everyone as we see from our משנה that if many women have a כתובה that has the same date they split it. This is also the opinion of the רי"ף. However, the רי"ף brings רבינו חננאל who disagrees and says that the מחלוקת רב ושמואל is even in a case of a loan. The ר"ן agrees with the רי"ף but doesn’t see any proof from our משנה since our משנה may be going like ר"מ. However, the reason he says that everyone will have to agree by a loan that the דין is יחלוקו is because the שעבוד קרקע is based on the קול that a שטר creates, and the קול only speaks as loud as the words of the שטר so the שעבוד can only be from the date of the שטר and one person having gotten the שטר earlier or later would not be relevant. However, one can still argue that the שעבוד is only relevant for לקוחות but to collect from the borrower himself the שטר’s date should not be the only relevant item. However, the רי"ף’s שיטה is that there is no דין קדימה by a מלוה בעל פּה. The ר"ח however holds there is a דין קדימה which is why he holds the מחלוקת of our גמרא is still relevant even by a case of a loan. Interestingly, the מחבר in סימן ק"ד סעיף ח paskens that if many שטרי הלוואה all have the same day then the דין is יחלוקו, yet he also paskens that there is קדימה by a מלוה בעל פּה which should be an impossibility. The ש"ך there asks this question and leaves it as a צ"ע. However, the קצות there answers that the ר"ן is similar to תוספות in ד"ה שני שטרות but that is not the only פּשט in the גמרא. ר"ת quoted by תוספות in ד"ה לימא says that the reason שמואל says שודא is because it is possible that the דיין will happen to give it to the right guy. However, יחלוקו guarantees cheating someone some amount since שמואל holds עדי מסירה כרתי and he certainly wouldn’t have given the same thing at the same time to both people in front of each other. However, by a loan we are afraid we will give it to the wrong guy so שלא תנעול דלת we say יחלוקו. The מחבר fits perfectly with this שיטה.
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