Kesubos - Daf 84

  • Why the Mishnah mentioned both a deposit and loan in the possession of others

The next Mishnah states: מי שמת והניח אשה ובעל חוב ויורשין – If someone died and left a wife, a creditor and heirs, all making claims on his estate, והיה לו פקדון או מלוה ביד אחרים – and he had a deposit or a loan in the possession of others, Rebbe Tarfon says: ינתנו לכושל שבהן – They shall be given to the weakest among them. Rebbe Akiva says: אין מרחמין בדין – We are not merciful in deciding the halachah! אלא ינתנו ליורשין שכולן צריכין שבועה ואין היורשין צריכין שבועה – Rather, the property should be given to the heirs, for all of them, referring to the widow and creditors, require an oath before they can collect, whereas the heirs do not require an oath. The Gemara asks why the Mishnah mentioned both cases of a deposit and a loan, and answers that if the Tanna had only taught the case of the loan, we would say that it is only this case where Rebbe Tarfon stated the heirs do not receive it, משום דמלוה להוצאה ניתנה – because a loan is given to the borrower to be spent. Rashi explains that whatever funds the debtor has at the time of the death are not considered to be on deposit for the heirs. אבל פקדון דאיתיה בעיניה – But a deposit which is intact, perhaps Rebbe Tarfon would say it goes to heirs. And if the Tanna had only taught the case of the deposit, perhaps only here Rebbe Akiva would say it goes to the heirs, but in the case of the loan, which is to be spent, perhaps he agrees with Rebbe Tarfon.

  •  Who is considered כושל שבהן – the weakest among them, with regard to collecting?

The Gemara asks what Rebbe Tarfon means that the property is given לכושל שבהן – to the weakest among them. Rebbe Yose b’Rebbe Chanina said: לכושל שבראיה – It is given to the one with the weakest proof. Rashi explains that the one who has the most recently dated shtar is considered the weakest, since he cannot collect from properties that were sold before the date of the shtar. Rebbe Yochanan said: לכתובת אשה משום חינא – It is designated to the woman’s kesubah, because of favor. Rashi explains that she is considered weaker, because it is not a woman’s way to investigate what were the holdings of the deceased and find land from which to collect.

  •  When does seizing a debtor’s property work?

The Mishnah had taught that if the deceased left detached produce from the ground, כל הקודם בהן זכה בהן – whoever is first to seize it, gains possession of it. If they gained more than what was owed to them, המותר – the surplus is given, according to Rebbe Tarfon, לכושל שבהן – to the weakest among them, whereas Rebbe Akiva says it is given to the heirs, since they do not require an oath to collect. When the Gemara asks why only the surplus go to the heirs according to Rebbe Akiva, and not all the produce, it answers that in fact all the produce does go to the heirs. He only mentioned his opinion because Rebbe Tarfon had brought the case of surplus. The Gemara then asks if according to Rebbe Akiva תפיסה לא מהניא כלל – does seizing property not accomplish anything at all, and Rava said in the name of Rav Nachman: והוא שתפס מחיים – it is effective when the creditor seized the property during the father’s lifetime. Rashi explains that Rav Nachman received a tradition from his Rebbe that Rebbe Akiva agrees in this situation.