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

  • Rav Moshe Taragin

 

GEMARA GITTIN 5772

By Rav Moshe Taragin

 

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Shiur #18:  Eidei Mesira or Eidei Chatima:

The Machloket between Rabbi Mei'ir and Rabbi Elazar,

Part Two

 

 

            The previous shiur introduced two different approaches toward understanding Rabbi Mei'ir's insistence upon signatories who actually sign the document.  One option is that Rabbi Mei'ir views witnesses as part of the very fabric of a shtar, thereby demanding their inclusion within its text.  Alternatively, he may require signatures to assure the utility of a shtar re'aya (evidentiary document) for any shtar, even if its primary purpose is effecting a kinyan (some sort of halakhic transaction). 

 

            How might Rabbi Elazar respond to these demands?  Understanding his position necessitates that we consider the unique function of the eidei mesira (to be discussed in next week's shiur, iy"H), AS WELL as his lack of concern with the function which Rabbi Mei'ir uniquely attributes to eidei chatima.  Said otherwise: aside from the utility of eidei mesira, why does Rabbi Elazar not demand eidei chatima in a manner similar to Rabbi Mei'ir?

 

            Of course, Rabbi Elazar's potential response will vary considerably depending upon Rabbi Mei'ir's motive.  If Rabbi Mei'ir requires signatories as an essential ingredient of the shtar itself, Rabbi Elazar would obviously have to argue with that basic designation.  By validating a shtar without signatures (with eidei mesira alone), Rabbi Elazar effectively denies this association between shtar and eidim.  Their dispute would appear to be a fundamental disagreement about the relationship between a shtar and the witnesses' signatures contained therein.  Shiur #4 addressed a related issue – whose voice emerges from the shtar: that of the eidim (it is their testimony which the shtar records) or an independent voice of the shtar (buttressed by the presence of eidim).  Rabbi Mei'ir's position would clearly be aligned with the former perspective, while Rabbi Elazar's stance might coincide more closely with the latter. 

 

            If, however, Rabbi Mei'ir requires signatories to "endow" the shtar with the capacity to serve as future evidence (and according to Tosafot he requires that it be "mukhach mi-tokho" to insure that evidence), we would enjoy two different options in explaining Rabbi Elazar's dissent.  Again, he might fundamentally disagree with Rabbi Mei'ir's claim that every shtar kinyan serve also as a potential shtar re'aya.  Indeed, if the eidim "happen" to affix their names to the bottom of a document, that shtar can be summoned in subsequent litigation as a source of evidence.  However, the manufacture of a shtar does not demand prior programming of this option. 

 

Alternatively, Rabbi Elazar might agree in theory to Rabbi Mei'ir's position that every issuing of a shtar must accommodate future litigation and the ability to offer evidence; Rabbi Elazar merely argues with the TYPE of evidence, which the issuing of the shtar must facilitate.  After all, once the shtar has been delivered in the presence of eidei mesira it is possible (though not automatic) that these witnesses can be tracked down to testify about the details of the shtar.  According to this, Rabbi Elazar agrees with Rabbi Mei'ir regarding the identity of the shtar kinyan as a shtar re'aya; however, he allows the future evidence to be external to the document. 

 

            The primary nafka minah between the two ways to understand Rabbi Elazar's response to Rabbi Mei'ir's demand that shtar kinyan serve as a potential shtar re'aya can be found in a very intriguing statement of the gemara (Gittin 22b) regarding Rabbi Elazar's position.  How are we to take Rabbi Elazar's allowance of shtar without signatories?  Rabbi Yochanan takes Rabbi Elazar's statements universally: in every shtar Rabbi Elazar would sanction a document without internal signatories.  By contrast, Rabbi Eliezer (not to be confused with Rabbi Elazar) contends, "Lo hikhshir Rabbi Elazar ela be-gittin; aval bi-she'ar shtarot lo" — "Rabbi Elazar only validate a get (in the absence of eidei chatima), but he never validates OTHER documents."  A major debate ensues regarding the meaning of Rabbi Eliezer's statement as well as its basis.  The literal meaning is that Rabbi Elazar is lenient only in the situation of a get. 

 

Many Rishonim offer explanations for this view of Rabbi Elazar's leniency.  Rashi, for example, asserts that Rabbi Eliezer refers to the leniency Rabbi Elazar allows in drafting documents upon paper, which would allow untraceable forgery.  In the situation of a get, most women immediately produce their documentation in beit din (to expedite collection of their ketuba).  The court thus records the contents of the document, and any future forgery attempt will undoubtedly fail.  In the situation of other shtarot, though, documents might only surface in court long after their initial issue, inviting forgeries.  Hence, even Rabbi Elazar would demand paper which would not allow a forgery.  The Rashba posits a slightly different claim.  A general shtar would typically contain many sub-conditions, thereby inviting forgery, whereas a get is generally written in a more straightforward and standard manner, making it more difficult to forge.  Therefore, Rabbi Elazar allows a get to be written upon forgeable material but does not extend this leniency to regular documents.

 

            According to Rashi and the Rashba, Rabbi Eliezer is not dramatically altering or affecting our understanding of Rabbi Elazar's stance regarding eidei chatima; Rabbi Elazar NEVER requires eidei chatima.  The associated leniency presented by our gemara (the ability to write upon forgeable material) is only tolerated in the case of get, where there are external assurances against the possibility of forgery, thus allowing the drafting of a 'get' on material which is forgeable.

 

            Tosafot question this understanding from a gemara in Kiddushin (26a) which apparently allows the drafting of a general shtar upon earthenware.  Recognizing that this medium would easily facilitate forgery (erasure and subsequent alteration), Tosafot conclude that the aforementioned explanation (that ALL GENERAL SHTAROT aside from gittin cannot be produced upon alterable material) cannot be accepted.  Tosafot therefore change the interpretation of Rabbi Eliezer's statement.  Rabbi Elazar only validates a shtar without eidei chatima if that shtar serves the purpose of kinyan (the classic shtar kinyan being a get).  For she'ar shtarot (meaning shtarot re'aya – documents which accomplish no halakhic transformation but are issued solely to serve as future evidence) however, Rabbi Elazar concedes to Rabbi Mei'ir that eidei chatima ARE required.  According to Tosafot, Rabbi Eliezer is fundamentally SHIFTING Rabbi Elazar's position regarding eidei chatima.  Rabbi Elazar only waives the requirement in the case of a shtar kinyan; a shtar re'aya, however, must include internal signatures.  How might we understand Rabbi Elazar's response to Rabbi Mei'ir, given this limiting of his position? 

 

            We must return to our original query.  If Rabbi Elazar accepts the need for every shtar to serve as re'aya but allows that proof to be external, it would be difficult to discriminate between a shtar kinyan and a shtar re'aya.  After all, if the possibility for 'external' verification is sufficient, we should never require anything more compelling (such as internal signatures).  If, however, Rabbi Eliezer rejects Rabbi Mei'ir's demand that all shtarot kinyan serve the added function of shtar re'aya - and therefore waives the requirement of internal signatories — he could very well concede to Rabbi Mei'ir's demand regarding a document which has the sole purpose to serve as future evidence (shtar re'aya).  Rabbi Elazar might agree that the capacity to serve as evidence (when necessary) must be internal and self-sufficient - a potential which only eidei chatima can yield.  He maintains, though, that a shtar kinyan does not have to possess this capacity and therefore does not have to contain eidei chatima.  A shtar re'aya, however, would then require internal eidei chatima.  Tosafot's reading leads to the following conclusion: Rabbi Mei'ir's demand for eidei chatima is based upon the premise that EVERY shtar (both kinyan and re'aya) must possess the capacity to provide future evidence.  Rabbi Elazar questions the demand in the case of shtar kinyan and therefore waives the need for eidei chatima.  A shtar re'aya, the only purpose of which is to provide such evidence, would still need eidei chatima even according to Rabbi Eliezer. 

 

            A second way to examine Rabbi Elazar's position would be to gauge the final status of a document without eidei chatima processed solely with eidei mesira.  An interesting example emerges from the discussion of Tosafot, 3b, s.v. Ve-goveh.  In general, the presence of a shtar is inconsequential regarding the collection of an outstanding debt.  However, the presence of a shtar re'aya allows the collection of that debt from lands which were sold to another party.  Armed with this document, the creditor may appropriate lands which were sold to a third party during the interim.  (Of course, that third party who was victimized has recourse by returning to the seller - the original debtor - and demanding a refund.)  Would Rabbi Elazar allow the appropriation of lands with a lien upon them (known in the Gemara as "nekhasim meshubadim") upon the presentation of an unsigned document - assuming the eidei mesira were present to add their testimony?  This issue is debated by Tosafot and would seem to depend upon our original question regarding the precise answer that Rabbi Elazar provides to Rabbi Mei'ir's claims.  Does Rabbi Elazar, by waiving eidei chatima, deny the need for a shtar kinyan to serve as a potential re'aya?  If so, he admits that an unsigned shtar cannot properly function as shtar re'aya, but he simply does not require a shtar re'aya at all.  As such, any halakha which depends upon the existence of a shtar re'aya would not apply according to Rabbi Elazar in the absence of a signed shtar.  Assuming the appropriation of sold lands depends upon the presence of a shtar re'aya, we could easily accept the position in Tosafot that Rabbi Elazar would not allow such collection with his shtar of eidei mesira.  Alternatively, if Rabbi Elazar fundamentally agrees with the need for shtar re'aya but claims that the eidei mesira waiting to be invited to court may serve that role, he might view EVERY shtar as a legitimate shtar re'aya and would thereby allow appropriation though the summoning of eidei mesira and their subsequent testimony. 

 

 

Sources and questions for next week's shiur (#19):

 

Sources:

1)         Gittin 86a, Mishna

            Gemara 86b, "Amar Rav Yehuda…" (until the mishna)

2)         Rif 47b, "Ve-meiha…" (until the mishna)

            Ran ibid., s.v. Ve-hainu, "Ve-i…Tzarfatim"

            Rambam, Geirushin 1:15, 16

            Tosafot 4a, s.v. Ve-Rabbi Elazar

3)         Rashi 22b, s.v. Rabbi Elazar

4)         Ran (48a, pages of the Rif), "Aval ma she-nira li… al ha-mesira"

5)         Avnei Milu'im 31:4

 

Questions:

 

1)         Does Rabbi Elazar demand eidei mesira in every instance?

2)         What unique role of shtar do eidei mesira fulfill?

3)         How would Rabbi Mei'ir supply eidei kiyum without eidei mesira?

4)         How might we explain Rav's position accepting Rabbi Elazar's view in the case of a get but rejecting it in the case of a regular shtar?