Ketubot, Chapter Nine, Mishnah Three



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 Ketubot 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.  


Mishnah Three

1)                     If he left produce that was detached from the ground, whoever seizes it first acquires possession.

2)                     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:

a)                                 Rabbi Tarfon says: it should be given to the one who is under the greatest disadvantage.  

b)                                 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.



Section one:  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.

Section two:  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.