Kinyan Chalipin and Kiddushin
GEMARA KIDDUSHIN
Shiur #04: Kinyan
Chalipin and Kiddushin
Based on shiurim
by Rav Ezra Bick
The gemara (3b) states that the enumeration of three methods of kiddushin
in the Mishna implies that no other method is valid. What is the potential
method being excluded? After first considering chupa, the gemara suggests that
chalipin (barter) is the method that is invalid for kiddushin. In commercial
transactions, one can exchange goods, so that if A takes physical possession of
an object belonging to B, A's object is legally transferred to B, although it is
not in his physical possession. This
can be used to acquire any object. The buyer gives the seller some object, and
thereby automatically assumes ownership of his purchase. The object used to
effect this kinyan (acquisition), can then be returned to the buyer. This is
called kinyan sudar - acquisition through a handkerchief - as a small piece of
clothing suffices to effect this kinyan. At weddings today, for instance, the
obligations expressed in the ketuba (marriage contract) are formalized through
kinyan sudar, where the Rabbi, representing the bride, gives his handkerchief to
the groom, thereby acquiring in her name the obligations of the ketuba.
Chalipin is in fact the most ubiquitous kinyan, effective in transactions
involving both real and movable property, as well as being used to formalize
monetary obligations. Nonetheless, the Gemara states that it is inapplicable to
kiddushin. The Gemara then asks why not, since it can be derived from the sale
of Efron's field in the same manner as kesef. The Gemara's answer, according to
the version appearing in the printed Talmud edition, is: "Chalipin can be
performed with (an object worth) less than a pruta, and a woman does not give
herself for less than a pruta". This is referred to as the version of Rashi, who
explains the logic of the conclusion as follows: "It is insulting to her;
therefore the institution of chalipin is invalid for kiddushin, even when using
a utensil worth more than a pruta - if he gave it to her as (using the language
of) chalipin."
Rashi's Interpretation
The Rishonim raise a number of problems with this interpretation. It
would appear from the question that in principle any kinyan that works for land
(like Efron's field) will work for kiddushin. Were it not for this question, we
would probably conclude that Efron's field is only relevant to kinyan kesef,
acquisition with money, which is mentioned in the Biblical narrative. However,
once the Gemara considers the possibility of chalipin, the door is opened to
other methods as well. Chalipin is invalidated only because it may be performed
with less than a pruta. But since land is acquired through chazaka (possession)
and shtar (legal deed) as well, why can't they be used to marry a woman? (Shtar
is a valid method of kiddushin; however, the Gemara (5a) queries as to the
source, settling on a comparison with a bill of divorce [get], rather than using
the readily available derivation from Efron's field.)
Secondly, the reason given by the Gemara for rejecting chalipin, as
explained by Rashi, raises a number of difficulties. It seems that in principle
chalipin should be effective, but that the subjective rejection of chalipin by
the woman, because it is not appropriate to her honor, is what prevents its use.
Accordingly, Tosafot ask, if a particular woman agrees to accept chalipin (even
of less than a pruta) as the means of kiddushin, why should it not be effective?
She is clearly not rejecting such a kiddushin. Secondly, it is not clear why, if
a woman objects to use of less than a pruta in chalipin, use of more than a
pruta is also invalidated. Ramban
points out that, according to Rashi, there is no problem with chalipin per se,
but only with the woman's rejection of a particular instance of chalipin, due to
the inclusion of an objectionable feature, namely that the object is not worth a
pruta. If an object worth a pruta is used, why should it not be effective?
R. Tam's Interpretation
R. Tam offers an alternative explanation, changing the text of the
Gemara's answer in the process. The Gemara never thought that all kinyanim
applicable to land are equally applicable to kiddushin. "Kicha-kicha mi-sdei
Efron" implies only that kesef - the kinyan used by Avraham and Efron, can be
used for kiddushin as well. However, the Gemara assumed that chalipin, as
opposed to chazaka or shtar, is in fact a form of kesef. The Gemara's answer is
that a woman cannot be acquired for less than the value of a pruta. (R. Tam
erases the continuation of the answer, as it appears in our text - "a woman does
not give herself"). This fact implies that chalipin is not a form of kesef, as
kesef, by definition, requires the minimum value of pruta. Hence, there is no
possibility of deriving chazaka or shtar, which are definitely not forms of
kesef, from Efron. Furthermore, chalipin with more than a pruta is equally
inapplicable, since the fact that it can be done with less than a pruta implies
that in principle, and in all forms, chalipin is not based on the concept of
value and is therefore not a form of kesef.
While it is possible to understand the assumption of the Gemara's
question to be that there is no difference between chalipin and kesef, this
would appear to be very difficult. There are, after all, technical differences
between the two; for instance, chalipin must be performed with a "kli," a
utensil, which excludes the use of coinage - of kesef itself!
A more likely explanation is that chalipin and kesef belong to the same
family. Both are based on providing compensation to the seller - in one case
with money that represents real value, in the other with an object useful in
itself. Kesef, money, may be defined as pure value, a means of exchange with no
intrinsic use in itself. Kinyan kesef works because transfer of value in one
direction elicits a parallel transfer in the other. So too, if a utensil is
provided to the seller, the parallel object is acquired by the buyer through
chalipin. The Gemara therefore suggests that if kesef is effective for
kiddushin, chalipin should also be.
The Gemara answers that chalipin may be accomplished with less than a
pruta - implying that it is a different type of transfer. The object of chalipin
need not have legal value; hence it cannot serve as compensation. Compensation
entails repaying in a different coin what was lost to the other party. The
transfer of value in one direction elicits a parallel transfer in the other.
Chalipin is based not on compensation but on exchange. In an exchange, the two objects are
seen as exactly equivalent, so that it is as if no change takes place at all.
Trading my horse for your donkey is effective because we each get the possession
we always wanted. Since no transfer has taken place, no compensation can be
spoken of, because no loss has occurred to repay. Therefore, a woman cannot be
exchanged for an object, because she cannot be seen as the equivalent of a
physical object. Compensation,
kesef, on the other hand, is appropriate since what the woman "gives" deserves
compensation, even if the form of compensation - money - is not the equivalent
of a woman.
A Second Interpretation of R. Tam
We can also understand R. Tam's reading of the Gemara slightly
differently, if we reexamine the derivation from Efron's field. The Yerushalmi
states that kesef is effective in kiddushin because it is written, "ki yikach
ish isha - ve-ein kicha ela be-kesef."
The Yerushalmi claims that since the verb 'kicha' in mishnaic Hebrew is
the standard way of saying 'to purchase', this is the meaning of the verse in
question as well. Since a verb commonly referring to purchase is used to
describe marriage, the proper method of effecting kiddushin is kesef, which is
the standard method of purchase. Maybe this is the meaning of the Bavli as well.
Since the verb 'kicha' can mean both monetary purchase and 'taking' in general,
the Bavli cites Efron's field to illustrate that the verb is used to refer to
purchase. This is not a derivation of the means of kiddushin. Rather, the Gemara
is deriving from the case of Efron's field what the meaning of the word kicha
is. Accordingly, the Gemara questions whether chalipin is a type of purchase,
and concludes that barter is a different type of transaction that cannot be
considered a purchase. The language of Rashba when citing this Gemara suggests
this approach. He concludes, "The Torah did not say "acquire" by kiddushin, but
kesef (i.e., "kicha", which means kesef), therefore chalipin doesn't work."
It is clear that R. Tam's reading, according to either explanation,
answers all the questions raised above. Other means of acquisition, such as
chazaka or shtar, are not candidates at all, since they are clearly not similar
to kesef. The psychological attitude of the particular woman towards chalipin is
not relevant, since the problem is not in her rejection of chalipin, as Rashi
stated, but in the nature of chalipin itself. Finally, chalipin of more than a
pruta is equally invalid, as it is the identification of chalipin in general
with kesef that is called into question.
Rashba's Interpretation
The Rashba adds an interesting dimension to R. Tam's approach. Were
chalipin a genuine barter, where both sides kept the objects traded, then even
though chalipin with less than a pruta would not be effective, with more than a
pruta it would be. However, since in chalipin - kinyan sudar - the handkerchief
is returned to the seller, chalipin is declared invalid for kiddushin. Rashba
explains that since the kinyan is not effected "by the body (guf) of the object,
but by its status (din)" it is invalid. What does this mean?
Apparently, Rashba is arguing that chalipin does not work by providing
compensation, even in the sense of a trade. The fine distinction we put forward
above between compensation and exchange is irrelevant according to the Rashba.
If she had received something, she could give herself in return. Were the object
to be genuinely the property of the woman, and were it to be worth a pruta, then
the kiddushin would be valid, since she has received something in exchange for
herself. However, chalipin doesn't actually provide anything to the woman, since
she has to give it back. The kinyan does not use the "guf", meaning the value,
monetary or utilitarian, of the object, but rather it uses the object as a
formal token. Here, Rashba introduces the psychological element. It is insulting
to the woman to be acquired by the formal status of an object, when the object
could have been used to acquire her for its real value. Therefore, the
institution of chalipin is rejected altogether by the woman.
Rashba, then, combines Rashi and R. Tam. The answer of the Gemara first
proves that chalipin has a different nature than kesef (like R. Tam), but then
applies a psychological reason for the rejection of chalipin by the woman (like
Rashi.) The woman does not object to the worth of the chalipin object, but the
nature of chalipin itself.
Rashba's explanation, relying on psychological rejection, leaves our
original question unanswered. Why are chazaka and shtar not derived from Efron'
field like kesef? To this Rashba replies that the question of whether the
derivation from Efron's field should include all valid methods of acquiring a
field, or only the particular method used by Abraham and Efron, is itself the
issue which the Gemara discusses. In the question, the Gemara felt that all
kinyanim could be derived; however, once chalipin was excluded, for whatever
reason, and the derivation could no longer be all-inclusive, there is no longer
a basis for extending it beyond the minimum, which is only kesef.
Ramban's Interpretation
The Ramban advances another explanation, referring, like the Rashba, to
the fact that chalipin is returned after the kinyan. He claims that aside from
the requirement that the husband give an object to the bride, she must also
benefit, have "hana'a", from the object. The source for this requirement is the
statement of the Gemara (6b) that "matana al menat le-hachzir" - a gift with the
stipulation that it must be returned - is a valid gift for all halakhic matters,
including kinyan kesef, except for kiddushin. There is a disagreement among the
commentators how to understand the reason for this exception (see Rashi and
Tosafot 6b). The Ramban claims that kiddushin is different than regular kinyan
because it has an added requirement. In kiddushin, the woman must benefit from
the kesef. Since matana al menat le-hachzir and chalipin both require the return
of the object, there is no benefit, no hana'a, accrued to the woman, and there
is therefore no kiddushin. (This is also the explanation of the Rambam for the
exception of matana al menat le-hachzir.)
The Ramban does not indicate why this extra requirement exists in
kiddushin. I think there can be two reasons.
A. Kinyan kesef operates by exchanging (for example) land for money.
Both the land and the money have some value, both are objects of worth that can
be owned. However, exchanging a woman for money is inherently problematic, as a
woman is not property. The requirement that the woman have hana'a, seeks to
bridge this gap. The money she receives doesn't only enter her pocket,
engendering a parallel exit of something from her pocket. When she has hana'a
from the money given by the man, it enters her very person. Hence it engenders a
parallel exit, or giving, of something personal to him - herself as a wife. In
other words, hana'a, according to Ramban, serves to personalize the economic,
monetary aspect of kinyan kesef and render it appropriate for kiddushin.
B. Some Achronim argue that a higher degree of agreement (da'at) is
required of the woman in order for kiddushin to take effect, in comparison to
that required of the parties in regular transactions (kinyanim). (They learn
this from, among other things, the statement of the Gemara (2b) that we require
a special source to tell us that kiddushin requires the agreement of the woman.)
This difference is expressed in a case of forced agreement ("talyuhu ve-zavin" -
"they hung him up until he agreed to sell"), which is considered to be valid
agreement in sales, but is ineffective, according to some opinions, if a woman
is so forced to agree to marry. If this assumption is correct, it is possible
that the Ramban requires hana'a to engender the added level of necessary
agreement, as the Gemara assumes in a several places that hana'a is effective in
causing a higher, more complete level of agreement. (The role of hana'a in
kiddushin will be discussed more thoroughly in relationship to the sugya of
"milva" - kiddushin using a loan [6b]; the relationship between hana'a and da'at
arises in connection with the sugya of "areiv" [7a]).
It is clear that the Ramban does not exclude chalipin from kiddushin
intrinsically. Basically, he would allow chalipin, if, like kesef, it also
provided benefit to the woman. In fact, it would seem that if a genuine barter
is performed, and no stipulation of return added, there is no reason why the
Ramban would object. He apparently sees no sharp difference between chalipin and
kesef, other than the lack of benefit in the formal stylized chalipin of kinyan
sudar. This differs from the opinion advanced by R. Tam, where chalipin in
principle is inapplicable to kiddushin, and cannot be compared to kesef.
According to R. Tam, a sharp distinction must be drawn between payment and
barter, at least in regard to the applicability of these methods of acquisition
to kiddushin.
The Derivation from Efron's Field
Let us summarize the different understandings of the derivation from
Efron's field that we saw in our discussion of chalipin:
1. According to R. Tam, the particular means of sale utilized by Efron
and Abraham is applicable to kiddushin. That method is kesef - the question is
whether chalipin may be considered, in some way, a form of kesef.
2. According to the Yerushalmi, Efron's field is not actually a source
of the derivation at all, but only the means to interpret the term "kicha" used
in relation to kiddushin, so that it is clear that it means kesef.
3. According to the Rashba, the Gemara debates between two possibilities
- that all methods of acquiring land may be derived, or that only kesef may be
derived.
4. According to the explanation offered by the Ramban, in principle all
methods are derivable, and in fact, one form of chalipin is in fact valid. (The
Ramban offers an independent reason why chazaka is inapplicable.)
It is worth noting that the assumption that Abraham's purchase was
effected through kesef (clearly stated in 1. above), is not at all obvious. It
is true that the Torah explicitly says that Abraham paid four hundred shekels -
but it does not say that this was the act of kinyan, and that he did not also
write a shtar or perform chazaka. If
the derivation is formal - the word kesef is mentioned in connection with the
kicha of Efron, and therefore kesef has a role in the kicha of kiddushin - this
may not be a problem; however, some Achronim apparently understood that Abraham
actually used kinyan kesef - the payment of four hundred shekel - to acquire the
field.
(The verse [23,16], "Avraham paid out the money to Efron..." is followed
by the verse, "Va-yakam sdei Efron - Efron's field was established...to Avraham
as a sale." It is possible to
understand this to mean - he paid, and consequently, the sale was effectuated. The only problem is the next two
verses. "Afterwards Avraham buried
Sara his wife... Va-yakam ha-sadeh - the field was established...to Avraham as a
burial portion. [19-20]" By the same interpretation, this sounds like kinyan
chazaka. Perhaps, the difference is
in the results. In the first case -
kinyan kesef - it is established as a sale; in the second, the actual use and
burial, it is established as an "achuzat kever," as a burial portion. What is the significance of the dual
validation of the sale?
Aside from the formal question how to understand the derivation from
Efron's field, our discussion today touched issues that will accompany us in
many of the sugyot in the future - how exactly does kesef effect kiddushin, what
is the connection between the kesef of the groom and the person of the bride,
the role of hana'a, etc.
Appendix: On the Nature of Chalipin
In our explanation of R. Tam above, we distinguished between a regular
kinyan, such as kesef or chazaka, and an exchange, like barter. In standard
acquisitions, an object leaves one man's possession to enter another's and
therefore compensation must be given, whereas in an exchange the two objects
cancel each other out in such a way that it is as if no change takes place. We
explained that chalipin cannot be used for kiddushin because a woman cannot be
exchanged for an object, thereby implying that no change has taken place. The
Gemara's answer that chalipin is effected with a coin of less than a pruta could
be seen as a formal explanation why Efron's field only serves as a source for
kesef and not chalipin. But we went beyond that to explain logically why
chalipin is inapplicable to kiddushin, despite its wide-ranging use in other
areas of halakha.
If you are still with me, I would now like to present an extension of
this explanation. There is a well-known discussion in Achronim regarding kinyan.
Is kinyan primarily effected by da'at, the parties intent, with the formal act
necessary only to indicate, or alternatively to help concretize, the proper
level of da'at? Or perhaps the
formal act effects the kinyan, and da'at is a secondary requirement. However,
even those who believe that da'at is the primary cause of monetary kinyan agree
that kiddushin demands a formal act. If we consider this requirement, maybe we
can understand further why chalipin is inappropriate for kiddushin. Chalipin, we
claimed, is not an act of transaction, but an exchange of equivalent objects, as
though no transfer at all has taken place. Since kiddushin requires a formal act
of acquisition, chalipin cannot be used to marry a woman.
(R. Chaim Soloveitchik claimed that chalipin, unlike other kinyanim which
are formal acts, represents pure da'at, and that is why it is inappropriate for
kiddushin. This is parallel, but not identical, to the preceding argument.)
Next Week's Shiur: Kiddushei Av
-------------------------------
I. Kiddushin 3b, "Be'chesef" until Kiddushin 4a top line. Tosafot s.v. "ha'av," s.v. "vechi
teima"; Ritva s.v. "u'farkinan hashta..." (bottom of column 19 in Mosad Harav
Kook edition).
II. Kiddushin 43b, "Ha'ish mekadesh" until "aviha v'lo hee" (Kid. 44a,
"R. Asi lo al" until "d'ashgach bei" Tos. s.v. "tzavach."
III. Ritva 4b "V'itzderach" (end of column 29 in Mosad edition).
IV. Rambam Hil. Naarah Perek II Halakha 13-15.
Guiding Questions:
-----------------
1. What is the main issue of our sugya?
What is the main issue of the sugya on daf 43b? Are the sugyot related?
2. How can you understand the machloket between Rav Yochanan and Reish
Lakish? (Why does Rav Yochanan ignore Reish Lakish's argument on 44a? See Pnai
Yehoshua there.)
3. What is the main point of the machloket between Rambam and Raavad?
How does that fit in with what we learned in these sugyot?
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