Se ele deixou frutos arrancados da terra, quem é o primeiro (para apreendê-los) os adquire. [Se os herdeiros foram os primeiros, eles os adquirem; e não é tirado de suas mãos. Pois a propriedade dos órfãos não está vinculada ao credor ou à cetá. Se um dos outros fosse o primeiro— a mulher ou o credor —ele os adquire. Para R. Tarfon sustenta que a convulsão após a morte é válida.] Se a mulher adquiriu mais do que seu kethubah [se ela veio primeiro e apreendeu mais (frutos) do que seu kethubah (vale a pena)], ou se o credor [veio primeiro] e [apreendido] mais do que sua dívida—o restante, diz R. Tarfon, deve ser dado aos "mais fracos" [o detentor da ação, que tem a "mão mais baixa". E se eles (os frutos) chegarem às mãos dos órfãos, eles não poderão mais ser retirados deles, nem pela mulher nem pelo credor. E hoje, quando todos os tribunais em Israel determinam que o bens móveis dos órfãos está vinculado ao credor, se um deles morreu e deixou bens móveis com créditos sobre ele por um credor e pela (kethubah de) uma mulher, quem vier primeiro o adquire, seja um credor com uma reivindicação anterior ou um credor com uma reivindicação posterior; pois não há lei de prioridade em relação ao material. E se nenhum deles se manifestou, a propriedade é dividida entre eles, como indicado abaixo (capítulo 10).] R. Akiva diz: "Não há misericórdia no julgamento", e é dado aos herdeiros. Pois todos exigem juramento, mas os herdeiros não exigem juramento.
Bartenura on Mishnah Ketubot
כל הקודם בהם זכה – if the heirs came earlier, they take possession and we don’t remove it from their hands for orphans’ movables are not mortgaged to a creditor or for a Ketubah. If one of them – the wife or the lender he takes possession, [for Rabbi] Tarfon holds that taking possession after death has legal effect.
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Ketubot
Introduction
Our mishnah is similar to yesterday’s mishnah. It again deals with a case of a man who dies and leaves a widow who wishes to collect her ketubah, a creditor who wishes to collect a debt and inheritors who want their rightful inheritance. The difference is that whereas yesterday’s mishnah dealt with money that was still in the hands of others at the time of the husband’s death, our mishnah deals with a case where the husband leaves produce already detached from the ground. As I mentioned yesterday, such produce has the status of movable property, from which debts and ketuboth are not generally collectable.
As an addendum, we should note that in the geonic period, the period right after the completion of the Talmud, which lasted from around 600 to 1100 C.E., the rabbis revised the Talmudic law and stated that a woman and a creditor can collect their debts from movable property. The reason for such a change was that their society was not based on the ownership of real estate, as society was to a much larger extent in the land of Israel in the 3rd century.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Ketubot
זכתה אשה יותר על כתובתה – if she got there ealier and took hold of it and it has more than [the value of] the Ketubah or the creditor arrived first and seized it and there is more than the lien [due him].
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Ketubot
If he left produce that was detached from the ground, whoever seizes it first acquires possession. If the husband left produce detached from the ground, the first of the collectors to seize it acquires it. This is because no one has an absolute right greater than the other and therefore their seizing of the property is effective. We should note that although this idea sounds foreign to us, perhaps even like vigilantism, it is basically similar to the idea that the person who does not have possession has the burden of proof. If for instance the wife takes the property, she has possession and now the others would have to prove that it is not rightfully hers. Since they cannot prove this, she keeps the produce. Furthermore, since it is unclear who is the rightful owner, the court would not be able to make any ruling even if the parties had asked its advice.
Ask RabbiBookmarkShareCopy
Bartenura on Mishnah Ketubot
המותר – should be given to the weakest. This owner of the document whose had is at a disadvantage, if it were to come into the hand of the orphans, furthermore, he cannot remove it from them – neither the wife nor the creditor. But nowadays, we have the practice in all Jewish courts throughout Israel that possessions of the orphans are mortgaged to the creditor; a person who died and left movables, and he had on them a creditor and the Ketubah of a wife , all who comes first gained possession, whether the creditor was early or whether the creditor was later, for there is no antecedent with regard to movables. But if none of them came early, they divide the movables between themselves , as we state further on in Chapter [Ten, Mishnah 2) “He who was married.”
Ask RabbiBookmarkShareCopy
English Explanation of Mishnah Ketubot
If the wife took possession of more than the amount of her ketubah, or a creditor of more than the value of his debt, the balance: Rabbi Tarfon says: it should be given to the one who is under the greatest disadvantage. Rabbi Akiva says: we do not show mercy in a matter of law. Rather it shall be given to the heirs, for whereas all the others must take an oath the heirs need not take any oath. Despite the fact that anyone can seize the property, the widow and the creditor cannot take more than they are owed. If they do, Rabbi Tarfon rules that the remainder of the money goes to the weaker of the remaining two parties. According to the Talmud this means that it would go to the woman if the creditor had seized the money or to the creditor if the woman seized the money. Rabbi Akiva rules, as he did in the above mishnah, that in cases of law no mercy is shown. Therefore, the inheritors take the remainder for they collect their inheritance without an oath, whereas creditors and widows must swear an oath before they can collect their respective debts.
