Eidei Mesira or Eidei Chatima: - The Machloket between Rabbi Mei'ir and Rabbi Elazar,Part One

  • Rav Moshe Taragin

 Sources and questions for the shiur:

1)         Gittin 22a, "Atzitz... ka mashma lan"
2)         Bava Batra 16a, Mishna
            Tosafot Gittin 2b, s.v. Eid echad (II)
3          Gittin 24a, Mishna; 24b, Gemara, "Ketana... hi"
            Tosafot 24b, s.v. Be-eidei
            Tosafot 22a, s.v. Man chakhamim
            Tosafot 20a, s.v. Ha
 
Questions:
 
1)         How can we prove that eidim form the basic texture of a shtar rather than merely the contained testimony within it?
2)         Do Tosafot (Gittin 26) agree with this premise?
3)         Why should Rabbi Mei'ir require the self-sufficiency of mukhach mi-tokho?

 

            The next gemara addresses the famous machloket between Rabbi Mei'ir and Rabbi Elazar regarding the various eidim who participate in the issuing of a document (shtar) or a get.  The next three shiurim will be dedicated to exploring this pivotal issue.  The first shiur will focus upon the function which eidei chatima might serve according to Rabbi Mei'ir, while the next shiur will examine the possible responses of Rabbi Elazar.  The final shiur will focus upon Rabbi Elazar's demand of eidei mesira.  It should be noted that this machloket is a sweeping topic, which encompasses many gemarot throughout Shas.  These shiurim are intended to serve as a brief introduction to this issue with an aim toward outlining the basic perspectives of the debate. 

 

            Rabbi Mei'ir adopts the stance that witnesses must sign the shtar even though they are not forced to witness its delivery.  What role does Rabbi Mei'ir assign to the signing of a document, and why does he require signatories and not people actually viewing the issuing of the shtar? 

 

            The simplest approach to understanding the role which eidei chatima serve maintains that they entail a basic ingredient of the shtar.  As a shtar is a formal document, it must contain formal signatures of valid witnesses.  A shtar without signatories is comparable to a shtar without any text - namely, the basic ingredients of the shtar are missing.  There are two interesting sources supporting this notion.  The gemara in Bava Batra (160a) discusses what is known as a "get mekushar," a document which was prepared in a unique fashion: folding the document in an accordion-like manner and adding signatures at each fold.  If this type of document is the local standard, then multiple signatures are necessary.  Even though, regarding verbal testimony, three witnesses are no more powerful than two, in the case of shtarot we can disqualify a shtar mekushar if it lacks the requisite eidim.  Evidently, the witnesses form part of the basic structure of the document, and some documents call for more than two eidim for their fundamental composition. 

 

            An inverse proof can be derived from an interesting comment in Ketubot of Rashi, who rules that a document containing the signature of only one eid can not even obligate a shevua (oath).  In the area of verbal testimony, two eidim are necessary to extract money, while the testimony of one eid can mandate a shevua.  Yet, a shtar with only one eid can not even warrant a shevua.  Evidently, as stated earlier, the eidim are an integral part of the texture of the shtar; thus, according to Rashi, without two eidim, the entire shtar is defective.  As we witnessed earlier, local customs can mandate the need for more than two eidim, a concept which is inconceivable in the realm of verbal testimony.  According to Rashi, no shtar is valid without two eidim, even for the obligation of a shevua, which normally requires only one eid.  The shtar does not merely carry or record the testimony of the eidim; rather, the eidim constitute the very foundation of the shtar. 

 

            Though this position is certainly appealing, Tosafot (2b, s.v. Eid echad [II]) seem to reject it.  The gemara in the beginning of the first chapter debates the need for two eidim to verify the authenticity of a get shipped from overseas: maybe we should require two witnesses, as this document will affect the status of erva.  (In general, we rule that issues pertaining to erva require two witnesses: "ein davar she-be'erva pachot mi-shenayim.")  On the other hand, the Gemara suggests certain reasons that this testimony should be different and require only one witness.  Tosafot question the Gemara's uncertainty.  After all, the fact that a get must be signed by two witnesses should prove that get is indeed a davar she-be'erva requiring two eidim!  If we maintain that the witnesses must be inherent to a shtar because they entail the basic texture of any legal document, Tosafot's question would be irrelevant.  The need for two eidim upon a get has little to do with the standards of davar she-be'erva.  To prove authenticity of a get we might suffice with one eid; to manufacture a get, however, we would require two eidim.  Evidently, at least according to Tosafot, the eidim are not an inherent ingredient of a document, and another basis for Rabbi Mei'ir's position must be found. 

 

            The continuation of our gemara cites an interesting pasuk in Yirmiyahu which might illuminate Rabbi Mei'ir's position.  Interestingly enough, the context within which this pasuk is cited is Rabbi Elazar's position.  The Gemara asserts that in some cases (referred to as "she'ar shtarot" - a phrase which will be explained in an upcoming shiur, iy"H), even Rabbi Elazar concedes the need for actual signatories (eidei chatima).  The Gemara bases this requirement upon the description of documents afforded in Yirmiyahu 32 (vv. 6-15).  Hashem instructs Yirmiyahu to purchase land as a harbinger that the Jews will outlast the impending exile and once again resettle Eretz Yisra'el.  He is instructed to sign a document of purchase and deliver it to the scribe Baruch ben Neriya for safekeeping, "so that it will remain for many days" — "le-ma'an ya'amdu yamim rabbim."  Obviously, the notion of a document remaining intact for many days alludes to the function which that document might serve over the course of those many days.  Future litigation might occur, and a document will prove invaluable in clarifying the differing claims.  Even a shtar kinyan - a document serving some current purpose, such as transferring title, initiating a loan, or divorcing a woman - can potentially have some future use in proving the events which took place.  Said otherwise, even a shtar, which is not primarily intended as evidence but instead serves to enact some legal transaction, can ultimately provide the evidence which might be useful in future litigation. 

 

            Rabbi Mei'ir takes this idea one step further.  Indeed, even Rabbi Elazar admits that a shtar kinyan can be admitted as evidence in future litigation; Rabbi Mei'ir, however, demands that EVERY shtar kinyan be drafted as a shtar capable of supplying this evidence.  Rabbi Mei'ir claims that the validity of a shtar kinyan depends upon its capacity to serve as evidence in future litigation.  To assure that every shtar kinyan can also serve in the future as a shtar re'aya (evidentiary document), Rabbi Mei'ir requires the eidim to sign the actual shtar.  In the absence of internal signatures, even given the presence of witnesses at the point of issuance, this document cannot automatically serve as evidence.  Without affixed signatures, future courts will always doubt the authenticity of this document and possibly be unable to locate the witnesses of the delivery who can attest to its veracity.  The safest way to ensure the potential of a document to serve as a future shtar re'aya ("le-ma'an ya'amdu yamim rabbim") is to demand the incorporation of the signatures of the eidim within the actual shtar. 

 

            It appears that this second approach to Rabbi Mei'ir's eidei chatima is reflected in an interesting position developed by Tosafot.  The gemara on 24b discusses a situation in which a man is married to two women with the same name.  The preceding mishna does not allow him to draft a get for 'Sarah A' and then deliver it to 'Sarah B.'  Such behavior would violate the rule of ketiva lishma, that the get must be written specifically for the woman who is eventually divorced with it.  Evidently, the husband is allowed to divorce the originally intended wife even though she shares a name with his other wife.  Would not this situation lead to confusion?  One can imagine the non-divorced wife claiming her release from her husband and producing a get with her name on it!  To this, the Gemara responds that indeed we will validate the use of a get in the case of 'double names' only if the eidei mesira witness the delivery and can affirm who is divorced and who is not.

 

            The basic answer is certainly logical, as the eidei mesira will prevent any confusion or abuse.  Yet, when the gemara cites this solution, it adds a perplexing condition: "we will validate the issue of this get as long as we rule like Rabbi Elazar and therefore enjoy the presence of eidei mesira."  This stipulation (that only Rabbi Elazar would validate this document) is very confounding.  After all, Rabbi Mei'ir does not require eidei mesira, but he would certainly allow them to be present.  Why does the Gemara not merely respond that this unique get will be valid if eidei mesira are present - either the required eidei mesira according to Rabbi Elazar, or the optional eidei mesira (possibly supplied specifically in this confusing context) according to Rabbi Mei'ir?  Though many Rishonim excise this line of the text and remove this condition (allowing the validity of the get even according to Rabbi Mei'ir), Tosafot maintain the text and claim that, according to Rabbi Mei'ir, even the presence of eidei mesira would not facilitate or aid the issuance of this get.  In addition to the presence of eidei chatima, Rabbi Mei'ir requires that a document be "mukhach mi-tokho" - everything about which the shtar testifies must be self-sufficient and internal.  If the get alone cannot accurately describe the divorce, we cannot supplement it through the commentary which the eidei mesira might provide. 

 

Tosafot raise this claim in two other instances in Gittin.  Our gemara discusses drafting a document upon a type of medium which can easily be forged.  It raises the possibility of checking against forgery by asking the original eidei mesira whether the names, which currently appear on the document, were the original ones.  Again, Tosafot claim that this solution is acceptable only according to Rabbi Elazar.  According to Rabbi Mei'ir, however, even if the eidei mesira were present at the time of the issuing of this get, their testimony cannot repair a document which cannot independently attest to the proceedings, which is not mukhach mi-tokho.

 

A third manifestation of the mukhach mi-tokho clause can be found, according to Tosafot 20a, s.v. Ha, regarding the role which the names of the principals play within the get.  Most (though not all) Rishonim deduce from that gemara the need to include the names of the woman and the man within the get.  The Gemara does not, however, supply a reason for the inclusion of these names.  Why not draft a generic get and issue it in the presence of eidei mesira who can later testify to the event?  Again, Tosafot claim that, according to Rabbi Mei'ir, the inclusion of names is absolutely necessary to ensure that the get will be mukhach mi-tokho.  Tosafot is consistent throughout Gittin in requiring this internal self-sufficiency according to Rabbi Mei'ir.

 

            The concept itself seems to be contradicted by two gemarot which allow the delivery of documents or gittin without mukhach mi-tokho (see especially Gittin 86b and Bava Batra 167b).  Aside from answering the textual contradictions, though, we must hold up this extra stipulation to our previously suggested approaches to the need for eidei mesira according to Rabbi Mei'ir.  If the incorporation of the signatures of eidim within the shtar were necessary solely as an ingredient of the document, why should details about the parties have to be internal?  Why can Rabbi Mei'ir not allow the composition of a document possessing the basic ingredient of witnesses' signatures, even though particulars such as the names are either omitted or unclear?  If, however, we view Rabbi Mei'ir's requirement for eidei chatima as based upon the capacity of a shtar to serve for future evidence in litigation (shtar re'aya), we might easily identify with the need for mukhach mi-tokho.  If we anticipate producing this document in the context of future litigation, we would certainly demand that the document be self-sufficient and not reliant upon external supplements.

 

Iy"H next week's shiur will explore the possible responses which Rabbi Elazar would offer to the requirement and function of eidei chatima. 

 

 

Sources and questions for next week's shiur (#18):

 

1)         Rashi 22b, s.v. Ela

2)         Tosafot ibid., s.v. Aval

3)         Rashba ibid., s.v. Ve-amar

 

Questions:

 

1)         What do the following terms refer to?

            (a) Gittin

            (b) She'ar shtarot

2)         According to Rabbi Eli'ezer, Rabbi Elazar would admit to Rabbi Mei'ir regarding which halakha?

3)         Why should Rabbi Elazar demand eidei chatima in the case of a shtar re'aya?