Siman 240

Two deeds of sale produced for one field in the name of one buyer, and their dates are not the same, and one cannot say that he requested that he write him another deed as mentioned in the previous siman, section 1, since it is not written in the later one that "this deed may not be used for collection" as mentioned there, it is perforce proven that the matter has changed. We must consider two paths in this: either the first was true, only that afterwards the buyer agreed to waive the lien from the previous time until now and will not seize from buyers who bought until now; or we say that the first was not made properly, as there was some forgery in it, and he wrote him the second as a valid deed. According to this, he must return all the fruits that he consumed until the time of the second deed, since there was no valid sale, and since the land is in the chazakah of the seller [Ran, chapter 4 of Ketubot]. And through the second deed, the buyer admitted that it was until now in the chazakah of the seller; the second nullified the first, and he returns to the seller all the fruits he consumed until the time of the second deed, and the tax on the field must be paid by the seller until the second time. And some say that he does not collect fruits that he already consumed, but rather those that are still in existence [Tur], and according to this, the tax is upon the buyer [Netivot HaMishpat].

In what case are these words said? When there is no novelty in the second deed compared to the first except for the date, for then we must only consider one of the two matters that have been explained. However, if there is some novelty, we must not invalidate either deed and both are valid, and the second was written for him because of the novelty. And what is called a novelty? It is not necessary to say if he added for him some further measure of land or a palm tree or a building and the like, he collects from purchasers from the first date, and the addition he collects from the second date. And if you should ask, why did he have to write the entire text of the first deed anew, he should have only written a deed for the addition alone, or he should have written in the second deed with this language: "As I wrote to so-and-so a deed of sale for this field at such-and-such a time, and now I have added for him thus and so," as is written in Even HaEzer siman 100 regarding a ketubah; it is possible to answer this that it is not the way of the world to do so. And only regarding a ketubah, where every man is obligated to write a ketubah for his wife and the first was written for her in the way of all the land, therefore when he adds for her he mentions the first: "As I wrote for her the customary ketubah, I am now adding for her thus and so." But in buying and selling, how does the term "addition" apply there? And he exchanges the previous deed for a second deed and writes in it the previous and the addition together without the term "addition." And similarly, it is not the way to write a second deed only for the addition, for why should the purchaser need to guard himself with two deeds? For now, even if he loses the first, he will only lose the lien until the second date, which is not the case if he were to write in the second only the addition and lose the first, he would lose the entire field.

And even if there is no addition in the quantity of the sale but rather in its quality, such as if the first was written in the language of a sale and the second in the language of a gift or vice versa, both of them likewise stand and the latter did not nullify the former. The reason is because there are advantages for a buyer in a gift more than in a sale, such as regarding the matter of metzranut, for in a gift the law of dina de-bar metzra does not apply; and there are advantages for a buyer in a sale more than in a gift, such as regarding achrayut, for in a sale we say achrayut is a scribal error. According to this, it is possible that he added the second deed for him to grant him some superior power. And even when there is no bar metzra in this sale, there is another improvement of power in a gift over a sale, such as regarding a path and the like, for we hold that a giver gives with a generous eye, more than a sale, as I wrote in siman 215. And since we have a way to uphold both deeds, there is no power to nullify the first deed.

However, according to this, the buyer should not show the latter deed in beit din, for if he shows both, the first is primary. For how can the law of bar metzra be nullified from the neighbor because of the deed of gift that he wrote for him afterwards? And with what is the power of the seller enhanced to nullify the power of the neighbor? And similarly, if the sale is the latter, how shall he collect from the purchasers with the deed of gift which is the primary one because of the latter deed of sale that he gave him? For according to the law, there is no responsibility in a gift. Nevertheless, against the seller himself, his power is certainly enhanced to collect from him from unencumbered properties, for he obligated himself with his lien. And similarly, regarding the enhancement of power concerning a path and the like, he has this against the seller because of his gift [Sma]. And some say that also regarding purchasers his power is enhanced when the latter is a sale and both are extant, for he wrote for him responsibility over his other properties, and it is like an "addition of a palm tree," and why should it not be within his power to obligate himself with his properties? And consequently, when another buys from him afterwards, he shall collect from him. But when the latter is a gift, it is not effective regarding the neighbor, for he only added to his obligation over others, namely over the neighbors, and with what is his power enhanced to do this?

And that which we said, that when there is a novelty in the second shtar both of them are extant, is only in the case of an addition of something; but in the case of a deficiency of something, such as where in the first he wrote to him the entire field and in the second half the field, certainly the latter has nullified the former. Nevertheless, some say that regarding the half remaining before him, he has rights in it from the first time regarding achrayut and other matters [Netivot HaMishpat], for although he granted him the second half back, nevertheless the power of the first shtar was not nullified regarding the half remaining before him.

There is one who says that this which was explained—that when there is no novelty in the second, the seller collects the produce until the time of the second—is only when the two deeds have already been validated in beit din. However, if the buyer now brings the two deeds before us and provides some pretext for the writing of the second deed, the seller does not take the produce even if it is still in existence, for the buyer is believed to say that the first is also true by means of a migo, for had he wanted, he could have hidden the second deed. But when the two deeds have already been validated, it would be a migo retroactively, and we do not say a migo retroactively, as I wrote in siman 82 in the rules of migo [Netivot HaMishpat]. And all the more so if the seller admits that the first is true. And if the buyer died and his heirs produce the two deeds, the beit din claims on behalf of the heirs that he sold it and then bought it back, for we claim on behalf of an heir [ibid.].

They asked our teacher, Tam, of blessed memory, regarding a shekhiv mera who said, "Give a maneh to so-and-so," and after an hour said a second time, "Give a maneh to so-and-so": Do we say that he only spoke to strengthen his initial words and he has only a maneh, or perhaps since he previously said "Give him a maneh," the recipient immediately acquired it, for the words of a shekhiv mera are considered as if written and delivered, and now he has given him another maneh? And Rabbeinu Tam replied that he has only one maneh, since he did not say, "Give him another maneh" [Mordekhai ibid.]. And all the more so regarding a healthy person who commanded witnesses to write a deed of gift for a maneh, and returned after a time and commanded to write a deed for a maneh, that his intention is only for the previous maneh.

Reuven held a shtar chov against Shimon for one thousand zuz, and Shimon produced two receipts from Reuven: one for two hundred and the second for three hundred. There was no date written in them, only generally: "I received toward the shtar chov of Shimon written on such-and-such a day for such-and-such an amount, two hundred," and in the second it was also written with this wording for three hundred. Shimon claims that he received five hundred from him, and Reuven claims that he only received three hundred: the first time he received two hundred, and the second time one hundred, and he wrote him the second receipt for three hundred in total, and he provides some pretext as to why he did not tear up the first receipt. It appears to me that the law is with Reuven if only the pretext is sound; for if it were according to the words of Shimon, he should have written in the second: "I received further toward the shtar chov three hundred," just as with a ketubah, where without the language of addition she cannot collect both, and we explained the reason in section 2. And so too here, since there is an obligation of a shtar chov upon him for one thousand zuz and he received two hundred, he should have written the language of addition in the second receipt; rather, it is certain that he included them together. See the Rivash siman 478, and it requires further study as to the law, but the mind inclines according to what I have written.

Two documents whose dates are on the same day and they are written regarding one field for two people, whether through sale or through gift: if it is known via witnesses to whom it was delivered first, even if it was also delivered to the second person afterward on that same day, the first has acquired it. This applies to a document that does not contain a kinyan, where the buyer only acquires when the document reaches his hand. However, in a document that contains a kinyan, and in both documents there is a kinyan, whoever preceded in the kinyan has merited; and they shall ask the witnesses of the kinyan to whom he granted acquisition first, for then even if the document reached the hand of the second before it reached the first, through the kinyan the first has acquired it because from the moment of the kinyan he merited it. And if the witnesses of the kinyan are not before us, or if on each document there are separate witnesses and it is not known to whom he granted acquisition first, or when there is no kinyan in the documents and the delivery of the document is the kinyan, and in the document it is written only "my field is sold or given to you" and it is impossible to clarify to whom it was delivered first—since the witnesses of delivery were not written within the document as to who they are so that we may ask them, and the seller or the giver is not believed to say to whom he delivered first since the purchase is not in his hand as has been written in siman 222 [Sma]—the sages said [Ketubot 94a] that they shall judge this with shuda de-dayyani. This means that the dayyanim shall deliberate on the matter according to their intellect, and for whomever their mind inclines to establish the field in his hand, they shall establish it. And if it is the custom of the place to write hours in a document, whoever is earlier in hours has merited, for in a place where they write hours, the precedence of an hour is like the precedence of a day; and in Jerusalem they used to write hours [Gemara]. And in a document that does not contain a kinyan, and it is known that to one it was delivered on one day and to the other on another day, and it is not known who was first, we do not judge this with shuda de-dayyani, for this we only judge if it is known that it was on one day and it is not known who was first. But regarding two days, then if this one claims certainty and that one claims certainty, since both of them are not in possession, the law is "whoever is stronger prevails," and in a case of "perhaps" and "perhaps," they shall divide [Netivot HaMishpat]. And why do we not judge this with shuda de-dayyani? Because it is possible to arrive at a clarification as to whom it was delivered first, but on one day it is remote that it will become known to whom it was delivered first on that same day.

Some say that we only adjudicate by shuda d'dayyani with an expert dayan and regarding lands. And some say that even regarding movable property we adjudicate by shuda as long as neither of them is the muhzak, for regarding a muhzak, the burden of proof is upon the claimant. And according to the first opinion, there is no reason for the matter, rather it is a tradition in their hands [Tosafot Bava Batra 35a]. And see what I wrote in siman 253, section 36.

One who gave to his fellow as a matnat shekhiv mera land or a place in the beit knesset and specified the land or the place with the boundaries he delineated for him, and afterward gave to another also land unspecified or a place unspecified, and did not specify which land or which place and did not delineate boundaries for him—some say that even though a shekhiv mera can retract and perhaps he retracted from the gift of the first and gave it to the second, nevertheless, a doubt does not remove a certainty. And we say perhaps he gave to the second other land or another place, even though it is not known to us where the other is. And some say that since it is not known that he has another place or other land, we say that certainly he only intended for that which is known to him, and it is the gift that he gave to the first, and the second acquired it. And all this is regarding a shekhiv mera who can retract, but in a gift of a healthy person, in either case the first acquired it, for he cannot retract unless he had not yet delivered the deed into his hand and there is a doubt in the matter, as in section 9.