Shiur #03: Shveh Kesef

  • Harav Mosheh Lichtenstein

 

GEMARA KIDDUSHIN

 

SHIUR #03: SHVEH KESEF

by Rav Mosheh Lichtenstein

 

 

 

           

            The opening mishna in Kiddushin states that a man can marry a woman by giving her money (kesef) or goods (shveh kesef).  The first method, kiddushei kesef, is treated extensively by the gemara (3b), but marriage by giving goods, kiddushei shveh kesef, is not elaborated on in the same fashion.  We would like, here, to examine the process of kiddushin by shveh kesef, and, hopefully, we will thereby reach a better understanding of the essence of kiddushin itself.

 

            The formula in the mishna states that a woman may be married by giving her a coin worth a peruta, or goods of equivalent value (bi-peruta u-beshaveh peruta).  We would like to begin by inquiring as to the relationship between these two methods.  Is there essentially one type of kiddushin that can be achieved by either mechanism, or does the existence of two methods perhaps indicate that there are also two different concepts of marriage itself?  If there are two different types of marriage corresponding to the two methods, kesef and shveh kesef, what is their nature and how is each accomplished?

 

            The question of the biblical source for this expansion of kesef to include shveh kesef, shall serve as a point of departure for our discussion.  The gemara (3b) deliberates at length to locate a biblical foundation for the fact that kiddushin is achieved by monetary means, concluding that there are two possible sources.  However, the gemara does not provide any specific reference supporting the use of objects in lieu of their monetary value.  Tosafot (2a) point to other areas where the halakha clearly requires the use of money yet allows the substitution of goods of equivalent value.  When dealing with eved Ivri (purchase of a Jewish manservant) and pidyon ha-ben (redemption of the first born), the gemara feels obligated to provide a source for this ruling.  The gemara does not assume as self-evident that equally valuable commodities can replace currency.  However, regarding kiddushin no source is required, indicating that the extension to monetary equivalents is trivial.  The obvious question, which Tosafot indeed ask, is what is the difference between these various halakhic areas?

 

            To answer this query, two possible approaches may be taken:  1.  Either the premise underlying the question can be denied (in this case, by supplying a hitherto unknown source for kiddushin by shveh kesef), or 2.  The facts of the case can be accepted and an explanation provided for the divergence.  The truth, of course, is that these two options are represented in a machloket rishonim (a disagreement among medieval commentators).  Tosafot chose the former option, adducing a new source for kiddushin, while Ramban preferred the latter.  Tosafot claim that the validity of using shveh kesef for the purposes of effecting marriage is derived, apparently by analogy, from eved Ivri (purchase of a Jewish slave), even though  there is no mention in the gemara of such a comparison.  Similarly, Tosafot find sources for other such cases in which objects can be used instead of money.  They thereby create a uniform group of halakhot, all of which permit the use of goods to replace money, yet require the authority of an explicit biblical reference to support this ruling.  Ramban, however, disagrees with Tosafot, and claims that in the case of kiddushin, no specific source is necessary, since the possibility of using a substitute can be logically deduced from kesef.

 

            To summarize, we have seen that there is a controversy between Tosafot and Ramban as to whether the validity of using shveh kesef can be derived from a-priori logic or requires a prooftext.  Perhaps this controversy can shed light on our original question - is shveh kesef an independent type of kiddushin, or is it just a secondary branch of kiddushei kesef.  Before proceeding, however, we must first understand the underlying issues which are at the root of Ramban and Tosafot's disagreement, and then return to see how this bears on our question.

 

            The word kesef (money), around whose meaning our entire discussion revolves, can denote one of two things.  Either it can signify a physical object, i.e. a coin, or it can refer to an abstract value which is measured in monetary units.  Both coin and value are represented by this term.  Therefore, when dealing with a halakhic case involving currency, we must always ask ourselves whether it is the former or the latter that we are dealing with, since the two meanings refer to different halakhic categories, each with unique requirements.

 

            When talking about whether kesef means a coin or a value, a distinction has to be made between the use of money for ceremonial or symbolic needs, on the one hand, and the use of money as a means of measurement in an exchange, on the other hand.  In some cases, money is not handed over in exchange for corresponding value being received, but rather serves in a ceremonial role. Thus, for example, in pidyon ha-ben (redemption of the first born), the handing over of the five shekalim to the kohen does not redeem the child because the kohen has received the child's worth, but rather a ceremonial act of redemption was performed through the medium of shekalim.  In such a case, due to the fact that the act of redemption is a religious, and not a commercial, act, it is quite clear that the money is fulfilling a ceremonial function as a coin, and not representing actual value.  However, the same may also apply to certain cases whose basic nature belongs to the world of trade and commerce.  If the Empire State Building (or any other real estate transaction) can be bought and sold by the handing over of a single peruta (roughly equal in value to a cent or two), we are not using money for its value, but rather as a symbol, even though the symbolism is meant to reflect actual transactions involving value exchanges.  Though this is not a ceremony involving a coin in the sense that pidyon ha-ben is, nonetheless, it is a symbolic act, and not necessarily a transfer of value.  In a word, money can be employed in a ceremonial or symbolic capacity for a variety of purposes.

 

            On the other hand, there are also many instances in which money is utilized to execute transactions whose essence is the transfer of value from one party to the other.  Here, the monetary element serves as a universal standard of value evaluation, and the accompanying purchasing power inherent in the currency as a guarantee of the fairness of the purported deal.  The seller transfers to the buyer merchandise of a certain value and receives in lieu of this the corresponding value in money.  Two values, one realized in cash and the other inherent in an object, have been exchanged; the entire transaction transpires between two real values and has no symbolic element in it at all.

 

            Perhaps the validity of using shveh kesef in place of currency, depends upon which aspect of kesef is being used within a given halakha.  If the money is serving in a ceremonial or symbolic capacity, it will not be able to be replaced by a different object of the same worth, unless there is an explicit guideline in the Torah to validate the substitution.  For it is the coin as a ceremonial object which interests us rather than its value.  (An object of equal value may be acceptable for the purposes of barter; however, as objects, they are totally different.)  A coin is a coin, and a horse is a horse; each object is distinct.  However, if an exchange of value is taking place, there is no difference between using money or goods of equivalent value, between cash or commodities, because their status is equal insofar as both have a specific value.  Thus, there is no need for a special source to legitimize the use of shveh kesef in such cases since there is no reason to distinguish between it and kesef.  However, in the previous example, where the object is required for the ceremony, there is a major difference between the two categories of kesef and shveh kesef, and no expansion of kesef can be done without an explicit source.

 

            Based upon this analysis, the dispute between Ramban and Tosafot depends upon their understanding of the role played by money in the process of kiddushin.  For though it is clear that the act of kiddushin is the handing over of money from the man to the woman with her consent, the meaning of this exchange is much more problematic.  How can the establishment of a personal relationship be achieved by the transfer of monetary value?  Can love or loyalty be bought?  Although it is obvious that a relationship is not commercial in nature, nevertheless, kiddushin does work by monetary means.  Therefore, one of two possible approaches must be postulated.

 

            1. Kiddushin is not the establishment of an interpersonal relationship but rather the creation of a legal bond of ownership between the two parties.  Such is the simple reading of the sources the gemara cites for kiddushei kesef - either "ki yikach" (when a man takes a wife) which is compared to the acquisition of a field, or the analogy to the freedom of a maidservant (amma ha-Ivria).

 

            2. The use of money is not intended as a form of payment, but rather serves to concretize the establishment of the personal relationship.

 

            [Lack of space and other considerations prevent us from elaborating upon these approaches here; suffice it to say that both can be illustrated in the sources relating to kiddushin.  We shall, therefore, limit ourselves to applying it to our topic of monetary equivalents.]

 

            Hence, if the marital framework is established by means of the husband acquiring his wife, then the money is being used for the value it represents in this exchange.  Therefore, it is self-evident that the use of any form of value, be it cash or commodity, should equally be valid.  Presumably, this is exactly what Ramban meant when he wrote that:  "...wherever it says that money is required for a transaction (ne'emar kesef be-kinyan), goods of equivalent value are included... regarding a purchase ("miknah") [no source is needed] since ("nicha lei") he is as appreciative of the object of equivalent value as he is of the money itself since both are of equal value to him."

 

            If, however, kiddushin is not to be understood as a standard acquisition, then clearly the money is being used in a symbolic or ceremonial role, in order to establish this unique relationship.  Unless we have a clear source to allow the use of shveh kesef, we would assume that only a coin may be used.  Perhaps this understanding stands behind Tosafot's need to bring a prooftext to allow kiddushin by shveh kesef.

 

            At this point, it seems worthwhile to make a brief summary of what we have seen until now.

 

            1.  The word money can mean two different things - the actual currency, or the value it represents.

 

            2.  Kesef refers to the coin as an object when used for ceremonial or symbolic acts, and to the value it represents when used in commercial transactions.

 

            3.  Substituting goods for money is reasonable in exchanges based on the value of the items involved, but not in those where the object itself is required for symbolic or ceremonial purposes.  Hence, in the former, simple logic allows the use of commodities in lieu of currency, whereas in the latter, an explicit source is required.

 

            4.  The meaning of kesef in the various areas of halakha must be determined based upon an independent analysis of each particular case.

 

            5.  Kiddushin can be understood either as a transaction establishing a formal legal status of spousal obligation, or as a means of addressing the interpersonal element.

 

            6.  Ramban seems to understand kiddushin as a monetary acquisition, and so the kesef is required for the value it represents.  Hence no source is necessary to allow the use of shveh kesef in place of kesef.

 

            7.  Tosafot seem to understand kiddushin as the establishment of an interpersonal relationship, and so the kesef is required as a symbol.  Hence a source must be found to allow shveh kesef to act as this symbol.

 

            However, our understanding of Ramban's position seems unsatisfactory.  For even if kiddushin is a standard monetary transaction, it cannot be an exchange of values between two parties as it is in a commercial setting.

 

            Firstly, it seems eminently clear that a person does not purchase a wife as he does a field, as Ramban himself pointed out elsewhere (Gittin 9a).  Kinyan kiddushin, 'to purchase a wife,' clearly relates to a special bond within the laws of personal status and not to the common concept of commercial acquisition.  To be sure, the concept of purchase unique to marital status is by no means romantic.  The relationship is subject-object and not I-Thou.  Nevertheless, kiddushin is not a commercial act.  Therefore, payment is out of place.  Hence, the money which creates this religio-legal status is not merely an object of value.

 

            Secondly, even if we were to claim (as Tosafot themselves may have done in Ketubot 2b) that the relationship established by the gemara between buying a wife and buying a field is more than a mere analogy, it does not necessarily follow that the guiding principle is value.  We saw above that some transactions can be enacted by a symbolic payment, and do not require true exchange value.

 

            Regarding kesef kiddushin, there is absolutely no doubt in any mind that the money used is of a symbolic nature.  A peruta (or any other sum, for that matter) does not reflect the value of the woman.  Instead, it is a minimal sum required for the symbolic effect of purchase. [Actually, Avnei Milu'im (29:2) does claim that the money handed over for kiddushin is for real value, but such an idea is totally untenable and, presumably/hopefully, he did not show this piece to his wife. (The book itself was published posthumously.)]

 

            To summarize, even if kiddushin is an act of purchase, the money required is not for its real value, but rather for its symbolic significance.  Therefore, it is far from self-evident that goods of equivalent value can be substituted for money, since we are not interested in the value, but rather in the physical object known as a coin.  Since the function of the money is either symbolic or ceremonial, a source must be provided which recognizes the legitimacy of using other objects for kiddushin.  How can Ramban, then, say that no source is needed to allow shveh kesef?

 

            As quoted above, Ramban compares kiddushin to commercial transactions and concludes that since both are essentially an agreement between two contracting parties, neither requires an explicit source to allow the use of shveh kesef.  This reasoning, however, is also enigmatic.  If kiddushei kesef is a symbolic act, the parties' agreement should be irrelevant.  Only an object that is suited for a symbolic role can serve in such a capacity, even if those concerned agree to use a different item.

 

            One possible explanation is that Ramban thought that since the object has a certain value, and we need a symbol to effect an acquisition, other objects can fulfill the desired symbolical role as well as money.  If so, the argument between Ramban and Tosafot is whether only money can be used for symbolic transactions, as Tosafot thought, or whether other objects will also suffice, due to their implicit value.

 

            Such an approach, though, is not without its problems.  Firstly, there is a basic qualitative difference between a coin and any other object.  Though an object has a certain value, it is essentially a functional object.  A coin's very essence, however, relates to measurement of value and has no meaning otherwise.  Therefore, any other object is unsuited for the symbolic representation of value, even if it is valuable, while the coin perfectly addresses the symbolic element.  Moreover, the comparison by Ramban between a commercial transaction, in which real assets are being transferred, and kiddushin, in which personal status is dealt with, is also extremely problematic.  And finally, if this is the explanation, the element of agreement is relatively unimportant, while Ramban clearly emphasizes it.

 

            Therefore, it seems preferable to offer a different interpretation of Ramban's opinion which emphasizes the element of consent.  Up to now, we have assumed that the basic component of the act of kiddushin, in cases of kiddushei kesef, is the transfer or handing over of the money from the man to the woman.  [Although we mentioned wholly divergent understandings of this event, the common denominator to them all was this basic assumption.]  The rationale for this is also quite clear; since the relevant references in the Torah relate to the monetary element and Chazal refer to it as monetary kiddushin (kiddushei kesef), presumably, this is what it is.

 

            However, a different approach is possible.  The gemara in the beginning of the masekhet contrasts between the term used by the Torah - kicha (purchase) - and that employed by Chazal - kiddushin.  The meaning of the word kiddushin, as Tosafot point out (2b), is designation.  This word was chosen because by the act of kiddushin a relationship is established between the husband and wife who designate each other as their spouse.  They thereby create the marital status and its accompanying exclusivity and loyalty.  Thus, the concept of kiddushin stands in contrast to that of kicha.  The latter emphasizes the acquisitive nature of the marital process, and, therefore, also displays a disparity between the two parties who are in unequal positions in such a transaction.  'Kiddushin,' however, is essentially an interpersonal relationship between two people who share an equal status in the relationship.  Both of these approaches to marriage are expressed throughout the masekhet.  (These approaches can also be readily demonstrated from the Yerushalmi in the beginning of the fourteenth chapter of Yevamot).  The clearest example of the difference between the two types of marriage is the distinction between kiddushin by money (kidushei kesef) and kiddushin by intercourse (kiddushei bi'ah).  Clearly sexual relations signify the interpersonal relationship, while giving money effects an acquisition.  However, kiddushei kesef themselves can be understood as having such a double track (cf. Tosafot Kiddushin 7a s.v. Ve-nifshetu that expounds a somewhat different duality within monetary kiddushin).  The money can serve as the vehicle of acquisition by which the husband claims his wife, yet it can also be utilized as the expression by which a relationship is established.  It can be not only a form of payment, but also a token of alliance and association.  The husband's willingness to give, and the wife's agreement to receive are indicative of the relationship which they are forging together.  In a word, the essence of the act of kiddushin is not the monetary transfer, but rather the meeting of two minds and hearts as expressed through a monetary agent.

 

            This understanding of kiddushin enables us to understand Ramban's opinion regarding shveh kesef.  If kiddushin is established by means of a ceremonial use of money (in a manner not dissimilar to pidyon ha-ben) or if it is a symbolic act of acquisition, then certainly the Tosafot are more convincing.  Ramban, however, is relying upon the alternate form of kiddushin in which the personal relationship is paramount, and for whose purposes the interpersonal agreement is at the focus of the procedure.  The transfer of money is merely an expression of their agreement, and therefore, Ramban emphasizes the element of agreement.  (This is similar to some understandings of da'at in kinyan, the intentions of the parties involved in monetary transactions.  Some Rishonim understand that the transaction is effected by their intentions, and not by the action involved.  Here we are using that same principle, not to explain commercial transactions, but to understand kiddushin.)  This being the case, if both parties agree to use another object instead of money, there is no reason to not to allow shveh kesef.

 

            In conclusion, let us now return to the question which we posed at the opening.  Does shveh kesef represent an alternate form of kiddushin or a secondary route subordinate to the basic case of kiddushin with actual money?  This is the issue in dispute between Ramban and Tosafot.  According to Tosafot, a special source is required to allow the use of objects in place of money.  Since the role of money in the kiddushin procedure is either ceremonial or symbolic, objects other than money are indeed second-rate and remain so even after they are included by virtue of a midrashic expansion.  However, according to Ramban, two separate concepts of kiddushin may be postulated; the first one, acquisitive kiddushin, is achieved by use of symbolic money, and if a monetary equivalent is valid in such cases, it must be based upon the authority of an explicit source, as Tosafot claimed.  The other concept is that of inter-personal kiddushin.  In this case, shveh kesef indeed works, not as a secondary form of cash, but rather as an equal means of generating agreement and expressing affinity between the couple.

 

            Be that as it may, the sources point to no qualitative difference between the two options; each is equally valid to achieve the desired kiddushin and to bring about "ahava ve-achva ve-shalom ve-re'ut" - love and kinship, peace and friendship.

 

Next Week's Shiur:

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Next week, the shiur will discuss chalipin (barter)- the sugya at the bottom of 3a, which concludes on the second line of 3b.  The shiur will refer to the Tosafot, the Ramban, and the Rashba to that passage.

 

Guiding questions:

 

1.  Try to understand the basic difference between the reason of the Gemara, as understood by Rashi, for the rejection of chalipin, and the reason as understood by Tosafot. What, for instance, would be a nafka mina (different ramification) of the two explanations?

 

2.  Tosafot claims that the gemara is deliberating whether chalipin is a kind of kesef or not.  Define the similarity and the difference between the two.

 

3.  "Kicha kicha m'sdei Efron" - what exactly is derived?