Eidei Kiyum through Eidei Chatima - Part 2 of a 5 Part Series
By Rav Moshe Taragin
This weeks shiurim are dedicated by Mr Paul Pollack
in honor of Rabbi Reuven and Sherry Greenberg
Shiur #03: Eidei Kiyum through Eidei Chatima
Part 2 of a 5 Part Series
In the previous shiur, we outlined one approach to understanding R. Eliezer's insistence upon eidei mesira, witnesses who observe the delivery of a contract/get. Intuitive logics suggest that the eidei CHATIMA are primary, as they actually sign and thereby craft the shetar, but R. Eliezer may have demanded eidei mesira to fulfill the requirement of edei KIYUM, attending witnesses whose PRESENCE validates the status change conferred by marriage or divorce. According to this approach, R. Eiliezer maintains that eidei mesira are not necessary for the sake of the shetar, but rather to validate the geirushin or kiddushin process.
How would R. Meir respond to this position? He clearly concedes the need for eidei kiyum. If there are only eidei chatima on a get, how is the requirement of eidei kiyum fulfilled? This question is so compelling that Rabbenu Tam (cited by Tosafot, Gittin 4a, s.v. de-kaima) asserted that R. Meir requires ADDITIONAL eidei MESIRA as eidei KIYUM. Eidei chatima are indeed necessary to produce a valid shetar, but they are not SUFFICIENT to provide eidei kiyum, and eidei mesira are therefore ALSO necessary.
Although this logic seems appealing, the simple reading of R. Meir's position suggests that eidei chatima are SUFFICIENT and that no eidei mesira are required. We are thus confronted with our original question where are the eidei kiyum in a get processed solely through eidei chatima according to R. Meir?
Surprisingly, in his presentation of the gemara, the Rif alters R. Eliezer's stance. While the literal reading of R. Eliezer suggests that eidei mesira are necessary and sufficient, the Rif claims that R. Eliezer offered two possible tracks EITHER eidei mesira OR eidei chatima each track being sufficient. Accordingly, we are faced with the same question articulated above regarding R. Meirs stance. R. Meir REQUIRED eidei chatima and, according to the Rif, R. Eliezer ALLOWED exclusive eidei chatima. If a get can be processed through eidei chatima alone (and according to Rebbi Meir ALWAYS is) where are the eidei kiyum?
The Ran in his comments to the Rif in Gittin (86) claims that a signed contract INDICATES a delivery of that contract; if the contract was signed, it was probably processed validly. If that contract is subsequently seen in the hands of the woman in question, we can ASSUME that it was actually delivered. Most properly prepared 'gittin' are delivered by the husband and not taken independently by the woman. Thus, R. Eliezer maintains (according to the Rif) that as long as there are eidei chatima on the get and it is in the possession of the woman, it is AS IF there are eidei kiyum for the gerushin- because we can assume delivery. Hence Rebbi Eliezer at least according to the Rif allowed a 'get' with pure eidei chatima.
This explanation assumes the halakhic rule of anan sahadi, we are witnesses. We can often accept OBVIOUS ASSUMPTIONS as empirical truth -as if those truths had been actually TESTIFIED about. According to the Ran, a shetar processed with eidei chatima and KNOWLEDGE of delivery makes a statement of anan sahadi about the delivery of the contract, which serves as a kiyum even in the absence of actual eidei mesira.
The Rans explanation is an important part of the debate about the nature of eidei kiyum. Many assume that kiyum requires ACTUAL eidim to witness the event; a marriage or divorce must be ceremonial, and only the presence of witnesses grants this quality. According to that approach, the Ran's substitution of anan sahadi in place of actual eidim is unacceptable. In contrast, the Ran probably viewed kiyum as practical, rather than formal; a divorce that can be legally denied is not valid. The presence of witnesses does not formally validate a divorce, but rather provides provability and prevents deniability, and therefore assures that the parties take the matter seriously. If a divorce can be denied it may not have been performed with requisite seriousness; once the parties know that they are accountable their disposition is more serious. Theoretically, ANY legally acceptable proof can replace actual eidim. Thus, if we can prove the delivery of the get through anan sahadi, no actual eidim are required.
The Ketzot Ha-Choshen (see his comments to Choshen Mishpat 42;1, 90;7) employs this Ran to establish an important principle governing eidei kiyum. He claims (90;7) that witnesses attending a kiddushin do not have to witness the ENTIRE action of kiddushin. If they stand under the chuppa and witness the general proceedings even if they dont witness the actual delivery of money or the ring they may still serve as eidei kiyum. Since they can ASSUME (and ultimately testify based upon that assumption) that the chatan they saw reciting the kiddushin formula while standing next to the kalla, actually delivered a ring, this event has provability. They may patch together their testimony based on what they actually saw and what they can assume- based on what they saw. Since this patchwork testimony would ultimately be accepted by beit din, this kiddushin is provable and the eidei kiyum have served their role. If we were to view eidei kiyum as a more formal element, we might have required them to actually witness the ENTIRE process and disagreed with the Kezot (as the Tumim actually maintains).
The Ran asserts his notion of eidei kiyum to explain a get processed solely through edei chatima according to R. Eliezer (based on the Rif's assumption that R. Eliezer would allow exclusive eidei chatima as an option). The same logic may be applied to explain R. Meir's position, who ALWAYS demands eidei chatima and does not allow for eidei mesira at all. Presumably, his eidei chatima supply eidei kiyum in the form of an anan sahadi; although no actual witnesses attended the delivery of the get, the presence of a signed document indicates the delivery and is sufficient for kiyum.
R. Chayim suggests a very different approach to locating the kiyum of a get processed solely through edei chatima. According to a theory that he develops repeatedly in his comments to the Rambam (in particular in Hilkhot Eidut), a shetar is not merely a form of recorded or written eidut. Instead, R. Chayim viewed a shetar as a completely different halakhic entity with autonomous rules and dynamics. As part of the unique nature of a shetar, it may testify well beyond the actual events witnessed by the signatories. The eidei chatima actually only witness the preparation of document; they have no idea if this document was ever be issued and whether the halakhic activity triggered by this shetar will ever ensue. Yet a shetar testifies to the events in question which the eidim never actually witnessed. In addition, me-deoraita, a signed shetar is valid even if the signatures have not been validated by beit din (it was the Rabbanan who required that documents be notarized). The shetar actually testifies that it was prepared legitimately- even though the eidim have no clue about events before or after they signed!!
According to R. Chayim, this demonstrates that a shetar is not merely the recorded testimony of the signatories. By signing their names, the eidei chatima create an independent testimony that testifies far beyond the parameters of what they themselves witnessed. The shetar as an independent force testifies to its own integrity that no forgeries occurred, that the participants of the shetar were halakhically valid, and that the event occurred and that the shetar was actually delivered to the intended party e.g. the person issuing the loan, the woman becoming married or divorced, or the recipient of the transferred land. According to R. Chayim, a signed shetar actually TESTIFIES to its own delivery. Even thought there are no actual eidim witnessing the DELIVERY, there is halakhic EIDUT about the delivery through the unique voice of the shetar.
Practically, R. Chaim limits this inherent testimony about delivery to certain forms of delivery. A shetar can inherently testify that it was delivered to the woman (thus forming the equivalent of edei mesira according to R. Meir.) However, a shetar will not testify about its delivery into the hands of a shaliach who will carry it to the designated party. The shetar only testifies to its delivery to its intended target (the woman in the case of a get), but not to its transfer to an intermediary. R. Chaim employs this distinction to explain that a shaliach enjoys no inherent edei kiyum in the same fashion that a woman does.
However Rav Chaim provides an alternative solution to edei kiyum in a scenario of pure edei chatima. Unlike the Ran who claimed that documents affixed with edei chatima supply an 'anan sahadi' about the delivery, Rav Chaim claimed that actual EIDUT exists about the delivery. Though no actual witnesses or edei mesira attend the delivery of the contract, the signed contract ITSELF testifies about its own delivery. Such is the unique legal power of a shetar to testify to the conditions of its own validity.