Difference in Kiyum between Gittin and Monetary Contracts - Part 4 of a 5 Part Series
By Rav Moshe Taragin
In memory of our grandparents, whose yahrzeits fall this week:
Shmuel Nachamu ben Shlomo Moshe HaKohen Fredman (10 Tevet)
Chaya bat Yitzchak David Fredman (15 Tevet)
Shimon ben Moshe Rosenthal (16 Tevet)
By their grandchildren and great-grandchildren,
Aaron and Tzipora Ross and family
Shiur #05: Difference in Kiyum between Gittin and Monetary Contracts
(Part 4 of a 5 Part Series)
In the first three shiurim in this series, we analyzed the machloket between R. Meir and R. Elazar as an issue of eidei kiyum. R. Elazar requires eidei mesira so that two eidim will be physically stationed at the delivery of the get and will thus serve as affirming witnesses - eidei kiyum - for the act of geirushin. R. Meir, in contrast, accepts even eidei chatima as eidei kiyum, even though they do not actually ATTEND or witness the delivery of the get. Based on this analysis, in terms of the SHETAR or CONTRACT itself, eidei mesira are not superior to eidei chatima; the real advantage of eidei mesira lies in their ability to provide more classic eidei kiyum. This may very well have been Rav's logic in demanding eidei mesira for a get, which requires eidei kiyum, but allowing only eidei chatima for monetary contracts, which may not require eidei kiyum at all.
There is an entirely different manner of analyzing the dispute between R. Meir and R. Elazar. According to this approach, even R. Elazar would agree that the eidei kiyum requirement does not necessarily mandate the presence of eidei mesira; he would agree that the kiyum can be accomplished even through eidei chatima (as discussed in shiur #02 of this series). What really drove the debate was the nature of a halakhic shetar and which type of eidim can enable it.
There is a certain appeal to this second approach, as R. Elazar stated his position requiring eidei mesira in the context of ALL shetarot, INCLUDING monetary ones, which do not require eidei kiyum. If his position were based upon the kiyum requirement, he should logically limit his position to gittin and kiddushin. There are ways to explain why R. Elazar may have stretched the eidei mesira/eidei kiyum requirement to monetary documents, but this certainly does not represent the intuitive approach. It seems preferable to explain R. Elazar's insistence upon eidei mesira based upon his view of SHETAROT, which would clearly include monetary shetarot as well.
Intuitively, we view a shetar as a recorded testimony of the witnesses. Since those witnesses may die or move elsewhere, we record their testimony for posterity. If so, R. Meir's position seems more attractive. By affixing the signatures to the document, the eidei chatima become the voice of the document. This testimony would never occur if the only eidim associated with the document were eidei mesira.
Evidently, R. Elazar adopts a very different approach to shetar. In his commentary to the Rambams Hilkhot Eidut (perek 3), R. Chayim suggests a bold idea, which he reiterates in several different contexts and in different variations. Essentially, R. Chayim establishes the autonomy of a shetar; a shetar is not merely the written or recorded testimony of the signatories. In fact, the signatories did not even witness the event that the shetar testifies about! The signatories sign their names and do not witness the delivery of the shetar nor the transfer of land or act of geirushin! Instead, the shetar should be viewed as an independent halakhic item that delivers eidim-independant testimony that is equivalent to spoken testimony.
There are differences between a shetar and standard testimony, however. One of the defining differences relates to "agenda." Witnesses come to Beit Din and narrate their account of events, and based upon their narrative, the Beit Din decides the course of litigation and the verdict. Eidim have no judicial agenda per se; they are merely storytellers. In contrast, a shetar is written to deliberately have an EFFECT on one of the two parties. A shetar may transfer land out of one sides possession, finalize a loan that will obligate the borrower to pay, or determine a woman's marital status and thereby force the husband to provide his marital obligations or in the case of "get" terminate the marriage. Every shetar negatively impacts one party from a financial standpoint and it is precisely THAT party who must authorize the composition of a shetar. As the Rishonim put it, without da'at mitchayev, a shetar is invalid. A shetar is written by the "affected party" and is empowered to fulfill a particular halakhic task.
The UTILITY inherent in the identity of a shetar is only realized when the shetar is ISSUED to the party who will utilize it. For example, until the shetar is issued to the lender, it cannot be utilized for its intended task. Since it cannot provide the utility for which it is intended, it cannot yet be deemed a shetar. The Rif, in his comments to Yevamot 31, claims that until the shetar has been issued to the ba'al ha-shetar, it lacks any identity as a shetar and is considered merely written testimony (eidut bi-khtav), which is halakhically invalid. Only by issuing the document to the possession of the utilize (ba'al he-shtar) is a shetar activated.
R. Elazar may have adopted R. Chayims view of shetar, which assumes that a shetar is distinct from verbal testimony; its voice is not merely the recorded voice of the signatories, but an independent halakhic voice, which is only activated at the point of issuance when a shetar achieves utility. Since the GENESIS of a shetar occurs at its point of issue, the more significant eidim are the ones who witness THAT issuance namely, the eidei mesira. In contrast, R. Meir may have viewed a shetar as nothing more than recorded testimony, and he therefore preferred eidim who actually affix their names to the document namely, the eidei chatima. As nothing more than recorded testimony, the shetar possesses halakhic meaning even before it has been issued and before it has achieved its utility. According to this reading, R. Meir and R. Elazar were debating the very identity of a shetar and its correspondence to verbal testimony.
Viewing Rebbi Elazar in this manner is supported by a fascinating statement in the gemara in Gittin (86b). One of the distinguishing features of a get is that it must be composed with very deliberate and specific intent, known as "kavana lishma." Unlike typical shetarot, which can be written generically, a get must be composed for the specific husband who will use it for a specific wife. R. Yirmiya addresses a complex case two gittin written for two different husbands with identical names and whose wives possess identical names. These two gittin were then dispatched through two different messengers, who lost track of which get was intended for which woman. To ensure that each woman receives the get that was intended for her, the obvious solution would be for each shaliach to deliver EACH get to each woman. Not knowing which particular get is divorcing which woman should not detract from the fact that ultimately, each woman did at some point receive THE GET intended for her (even though she ALSO received a "get" not intended for her).
This is indeed the ruling of the mishna in Gittin 86, but R. Yirmiya claims that R. Elazar would differ. By requiring eidei mesira, R. Elazar would also demand that a get be DELIVERED lishma, with specific intent to divorce a specific woman. R. Elazar would demand netina lishma specific intent in the delivery of the get. In this particular instance of confused gets, it has become impossible to determine which get is divorcing which woman; if netina lishma is required, neither woman can be divorced, even though each eventually received her intended get.
R. Yirmiyas association between the TYPE of eidim necessary to validate a get and the type of NETINA demanded is not immediately clear. Why should R. Elazar's demand for eidei masira affect the TYPE of DELIVERY necessary for valid geirushin?
Evidently, R. Yirmiya sensed in Rebbi Elazar's shita a statement about the point of origin of a shetar. R. Elazar required eidei mesira because the shetar is only activated when it is issued into the hands of the person who will utilize it. If indeed this marks the halakhic evolution of the shetar, in the case of a get, the action must be lishma, as all acts of "shetar creation" for gittin must be. R. Yirmiya's extrapolation from R. Elazar's opinion indicates that he viewed the delivery of a shetar as part of a shetar's creation, and therefore preferred eidei mesira who witness this genesis of shetar.
Viewing the debate as centered around the nature of shetar and more specifically, WHEN a shetar BECOMES a shetar may also help explain an interesting compromise of Rav. The gemara in Gittin cites Rav, who adopted R. Elazars opinion for gittin but rejected it in situation of other shetarot. Most interpret this gemara literally "for gittin (and kiddushin), Rav required eidei mesira, but for monetary contracts, he required eidei chatima," thereby establishing a compromise position between those of R. Meir and R. Elazar.
The Ra'avad, in his commentary to the Rif (Gittin 86b), claims that Rav's REAL compromise was between a shetar kinyan, a shetar that changes a status, and a shetar ra'aya, a shetar that only serves as future evidence. A shetar kinyan, such as a get (and for that matter, any shetar kinyan that affects a change, such as a shetar issued to transfer ownership of land), requires eidei mesira, whereas a shetar ra'aya does not require eidei mesira. Although the Ra'avad supports his position by citing three gemarot, his underlying logic is unclear. Why should shetarot serving different functions require different types of eidim? If edei mesira are crucial, they should be necessary across the board; if eidei chatima are sufficient, they should validate any and every type of shetar.
Perhaps the Ra'avad understood R. Elazar and R. Meir precisely as stated above. R. Elazar defined shetar as independent of its signatories. It is a distinct halakhic device initiated by the impacted party (da'at mitchayev) and delivered to the person who will utilize it (ba'al ha-shetar). The shetar is born at the point of issue, and eidei mesira who witness that issue are therefore critical. Rav reasoned that this autonomous definition of shetar concerns only a shetar KINYAN, which has UTILITY in creating halakhic change. That type of shetar is different from oral testimony, and therefore requires eidei mesira to witness its development. A shetar ra'aya, on the other hand, creates no halakhic change; it merely serves to verify and offer evidence that a halakhic event has already occurred. Since it has no IMPACT, it cannot be initiated by a party who will be inconvenienced or negatively impacted by the shetar there cannot be da'at mitchayev. Without impact and without daat mitchayev, a shetar ra'aya cannot be considered a shetar, but merely recorded testimony, inherently similar to verbal testimony. This recorded testimony develops the moment that the shetar is written and signed, not at the moment at which it is delivered (like a classic shetar). Hence, according to the Ra'avad, Rav claimed that eidei chatima are necessary in the case of a shetar raaya so that their testimony can be recorded.