Shiur #04: Kinyan Chalipin and Kiddushin

  • Rav Ezra Bick

 

GEMARA KIDDUSHIN

 

Shiur #04: Kinyan Chalipin and Kiddushin

 

Based on shiurim by Rav Ezra Bick

 

 

            The gemara (3b) states that the enumeration of three methods of kiddushin in the Mishna implies that no other method is valid. What is the potential method being excluded? After first considering chupa, the gemara suggests that chalipin (barter) is the method that is invalid for kiddushin. In commercial transactions, one can exchange goods, so that if A takes physical possession of an object belonging to B, A's object is legally transferred to B, although it is not in his physical possession.  This can be used to acquire any object. The buyer gives the seller some object, and thereby automatically assumes ownership of his purchase. The object used to effect this kinyan (acquisition), can then be returned to the buyer. This is called kinyan sudar - acquisition through a handkerchief - as a small piece of clothing suffices to effect this kinyan. At weddings today, for instance, the obligations expressed in the ketuba (marriage contract) are formalized through kinyan sudar, where the Rabbi, representing the bride, gives his handkerchief to the groom, thereby acquiring in her name the obligations of the ketuba.

 

            Chalipin is in fact the most ubiquitous kinyan, effective in transactions involving both real and movable property, as well as being used to formalize monetary obligations. Nonetheless, the Gemara states that it is inapplicable to kiddushin. The Gemara then asks why not, since it can be derived from the sale of Efron's field in the same manner as kesef. The Gemara's answer, according to the version appearing in the printed Talmud edition, is: "Chalipin can be performed with (an object worth) less than a pruta, and a woman does not give herself for less than a pruta". This is referred to as the version of Rashi, who explains the logic of the conclusion as follows: "It is insulting to her; therefore the institution of chalipin is invalid for kiddushin, even when using a utensil worth more than a pruta - if he gave it to her as (using the language of) chalipin."

 

Rashi's Interpretation

 

            The Rishonim raise a number of problems with this interpretation. It would appear from the question that in principle any kinyan that works for land (like Efron's field) will work for kiddushin. Were it not for this question, we would probably conclude that Efron's field is only relevant to kinyan kesef, acquisition with money, which is mentioned in the Biblical narrative. However, once the Gemara considers the possibility of chalipin, the door is opened to other methods as well. Chalipin is invalidated only because it may be performed with less than a pruta. But since land is acquired through chazaka (possession) and shtar (legal deed) as well, why can't they be used to marry a woman? (Shtar is a valid method of kiddushin; however, the Gemara (5a) queries as to the source, settling on a comparison with a bill of divorce [get], rather than using the readily available derivation from Efron's field.)

 

            Secondly, the reason given by the Gemara for rejecting chalipin, as explained by Rashi, raises a number of difficulties. It seems that in principle chalipin should be effective, but that the subjective rejection of chalipin by the woman, because it is not appropriate to her honor, is what prevents its use. Accordingly, Tosafot ask, if a particular woman agrees to accept chalipin (even of less than a pruta) as the means of kiddushin, why should it not be effective? She is clearly not rejecting such a kiddushin. Secondly, it is not clear why, if a woman objects to use of less than a pruta in chalipin, use of more than a pruta is also invalidated.  Ramban points out that, according to Rashi, there is no problem with chalipin per se, but only with the woman's rejection of a particular instance of chalipin, due to the inclusion of an objectionable feature, namely that the object is not worth a pruta. If an object worth a pruta is used, why should it not be effective?

 

R. Tam's Interpretation

 

            R. Tam offers an alternative explanation, changing the text of the Gemara's answer in the process. The Gemara never thought that all kinyanim applicable to land are equally applicable to kiddushin. "Kicha-kicha mi-sdei Efron" implies only that kesef - the kinyan used by Avraham and Efron, can be used for kiddushin as well. However, the Gemara assumed that chalipin, as opposed to chazaka or shtar, is in fact a form of kesef. The Gemara's answer is that a woman cannot be acquired for less than the value of a pruta. (R. Tam erases the continuation of the answer, as it appears in our text - "a woman does not give herself"). This fact implies that chalipin is not a form of kesef, as kesef, by definition, requires the minimum value of pruta. Hence, there is no possibility of deriving chazaka or shtar, which are definitely not forms of kesef, from Efron. Furthermore, chalipin with more than a pruta is equally inapplicable, since the fact that it can be done with less than a pruta implies that in principle, and in all forms, chalipin is not based on the concept of value and is therefore not a form of kesef.

 

            While it is possible to understand the assumption of the Gemara's question to be that there is no difference between chalipin and kesef, this would appear to be very difficult. There are, after all, technical differences between the two; for instance, chalipin must be performed with a "kli," a utensil, which excludes the use of coinage - of kesef itself!

 

            A more likely explanation is that chalipin and kesef belong to the same family. Both are based on providing compensation to the seller - in one case with money that represents real value, in the other with an object useful in itself. Kesef, money, may be defined as pure value, a means of exchange with no intrinsic use in itself. Kinyan kesef works because transfer of value in one direction elicits a parallel transfer in the other. So too, if a utensil is provided to the seller, the parallel object is acquired by the buyer through chalipin. The Gemara therefore suggests that if kesef is effective for kiddushin, chalipin should also be.

 

            The Gemara answers that chalipin may be accomplished with less than a pruta - implying that it is a different type of transfer. The object of chalipin need not have legal value; hence it cannot serve as compensation. Compensation entails repaying in a different coin what was lost to the other party. The transfer of value in one direction elicits a parallel transfer in the other. Chalipin is based not on compensation but on exchange.  In an exchange, the two objects are seen as exactly equivalent, so that it is as if no change takes place at all. Trading my horse for your donkey is effective because we each get the possession we always wanted. Since no transfer has taken place, no compensation can be spoken of, because no loss has occurred to repay. Therefore, a woman cannot be exchanged for an object, because she cannot be seen as the equivalent of a physical object.  Compensation, kesef, on the other hand, is appropriate since what the woman "gives" deserves compensation, even if the form of compensation - money - is not the equivalent of a woman.

 

A Second Interpretation of R. Tam

 

            We can also understand R. Tam's reading of the Gemara slightly differently, if we reexamine the derivation from Efron's field. The Yerushalmi states that kesef is effective in kiddushin because it is written, "ki yikach ish isha - ve-ein kicha ela be-kesef."  The Yerushalmi claims that since the verb 'kicha' in mishnaic Hebrew is the standard way of saying 'to purchase', this is the meaning of the verse in question as well. Since a verb commonly referring to purchase is used to describe marriage, the proper method of effecting kiddushin is kesef, which is the standard method of purchase. Maybe this is the meaning of the Bavli as well. Since the verb 'kicha' can mean both monetary purchase and 'taking' in general, the Bavli cites Efron's field to illustrate that the verb is used to refer to purchase. This is not a derivation of the means of kiddushin. Rather, the Gemara is deriving from the case of Efron's field what the meaning of the word kicha is. Accordingly, the Gemara questions whether chalipin is a type of purchase, and concludes that barter is a different type of transaction that cannot be considered a purchase. The language of Rashba when citing this Gemara suggests this approach. He concludes, "The Torah did not say "acquire" by kiddushin, but kesef (i.e., "kicha", which means kesef), therefore chalipin doesn't work."

 

            It is clear that R. Tam's reading, according to either explanation, answers all the questions raised above. Other means of acquisition, such as chazaka or shtar, are not candidates at all, since they are clearly not similar to kesef. The psychological attitude of the particular woman towards chalipin is not relevant, since the problem is not in her rejection of chalipin, as Rashi stated, but in the nature of chalipin itself. Finally, chalipin of more than a pruta is equally invalid, as it is the identification of chalipin in general with kesef that is called into question.

 

Rashba's Interpretation

 

            The Rashba adds an interesting dimension to R. Tam's approach. Were chalipin a genuine barter, where both sides kept the objects traded, then even though chalipin with less than a pruta would not be effective, with more than a pruta it would be. However, since in chalipin - kinyan sudar - the handkerchief is returned to the seller, chalipin is declared invalid for kiddushin. Rashba explains that since the kinyan is not effected "by the body (guf) of the object, but by its status (din)" it is invalid. What does this mean?

 

            Apparently, Rashba is arguing that chalipin does not work by providing compensation, even in the sense of a trade. The fine distinction we put forward above between compensation and exchange is irrelevant according to the Rashba. If she had received something, she could give herself in return. Were the object to be genuinely the property of the woman, and were it to be worth a pruta, then the kiddushin would be valid, since she has received something in exchange for herself. However, chalipin doesn't actually provide anything to the woman, since she has to give it back. The kinyan does not use the "guf", meaning the value, monetary or utilitarian, of the object, but rather it uses the object as a formal token. Here, Rashba introduces the psychological element. It is insulting to the woman to be acquired by the formal status of an object, when the object could have been used to acquire her for its real value. Therefore, the institution of chalipin is rejected altogether by the woman.

 

            Rashba, then, combines Rashi and R. Tam. The answer of the Gemara first proves that chalipin has a different nature than kesef (like R. Tam), but then applies a psychological reason for the rejection of chalipin by the woman (like Rashi.) The woman does not object to the worth of the chalipin object, but the nature of chalipin itself.

 

            Rashba's explanation, relying on psychological rejection, leaves our original question unanswered. Why are chazaka and shtar not derived from Efron' field like kesef? To this Rashba replies that the question of whether the derivation from Efron's field should include all valid methods of acquiring a field, or only the particular method used by Abraham and Efron, is itself the issue which the Gemara discusses. In the question, the Gemara felt that all kinyanim could be derived; however, once chalipin was excluded, for whatever reason, and the derivation could no longer be all-inclusive, there is no longer a basis for extending it beyond the minimum, which is only kesef.

 

Ramban's Interpretation

 

            The Ramban advances another explanation, referring, like the Rashba, to the fact that chalipin is returned after the kinyan. He claims that aside from the requirement that the husband give an object to the bride, she must also benefit, have "hana'a", from the object. The source for this requirement is the statement of the Gemara (6b) that "matana al menat le-hachzir" - a gift with the stipulation that it must be returned - is a valid gift for all halakhic matters, including kinyan kesef, except for kiddushin. There is a disagreement among the commentators how to understand the reason for this exception (see Rashi and Tosafot 6b). The Ramban claims that kiddushin is different than regular kinyan because it has an added requirement. In kiddushin, the woman must benefit from the kesef. Since matana al menat le-hachzir and chalipin both require the return of the object, there is no benefit, no hana'a, accrued to the woman, and there is therefore no kiddushin. (This is also the explanation of the Rambam for the exception of matana al menat le-hachzir.)

 

            The Ramban does not indicate why this extra requirement exists in kiddushin. I think there can be two reasons.

 

A. Kinyan kesef operates by exchanging (for example) land for money. Both the land and the money have some value, both are objects of worth that can be owned. However, exchanging a woman for money is inherently problematic, as a woman is not property. The requirement that the woman have hana'a, seeks to bridge this gap. The money she receives doesn't only enter her pocket, engendering a parallel exit of something from her pocket. When she has hana'a from the money given by the man, it enters her very person. Hence it engenders a parallel exit, or giving, of something personal to him - herself as a wife. In other words, hana'a, according to Ramban, serves to personalize the economic, monetary aspect of kinyan kesef and render it appropriate for kiddushin.

 

B. Some Achronim argue that a higher degree of agreement (da'at) is required of the woman in order for kiddushin to take effect, in comparison to that required of the parties in regular transactions (kinyanim). (They learn this from, among other things, the statement of the Gemara (2b) that we require a special source to tell us that kiddushin requires the agreement of the woman.) This difference is expressed in a case of forced agreement ("talyuhu ve-zavin" - "they hung him up until he agreed to sell"), which is considered to be valid agreement in sales, but is ineffective, according to some opinions, if a woman is so forced to agree to marry. If this assumption is correct, it is possible that the Ramban requires hana'a to engender the added level of necessary agreement, as the Gemara assumes in a several places that hana'a is effective in causing a higher, more complete level of agreement. (The role of hana'a in kiddushin will be discussed more thoroughly in relationship to the sugya of "milva" - kiddushin using a loan [6b]; the relationship between hana'a and da'at arises in connection with the sugya of "areiv" [7a]).

 

            It is clear that the Ramban does not exclude chalipin from kiddushin intrinsically. Basically, he would allow chalipin, if, like kesef, it also provided benefit to the woman. In fact, it would seem that if a genuine barter is performed, and no stipulation of return added, there is no reason why the Ramban would object. He apparently sees no sharp difference between chalipin and kesef, other than the lack of benefit in the formal stylized chalipin of kinyan sudar. This differs from the opinion advanced by R. Tam, where chalipin in principle is inapplicable to kiddushin, and cannot be compared to kesef. According to R. Tam, a sharp distinction must be drawn between payment and barter, at least in regard to the applicability of these methods of acquisition to kiddushin.

 

The Derivation from Efron's Field

 

            Let us summarize the different understandings of the derivation from Efron's field that we saw in our discussion of chalipin:

 

1. According to R. Tam, the particular means of sale utilized by Efron and Abraham is applicable to kiddushin. That method is kesef - the question is whether chalipin may be considered, in some way, a form of kesef.

 

2. According to the Yerushalmi, Efron's field is not actually a source of the derivation at all, but only the means to interpret the term "kicha" used in relation to kiddushin, so that it is clear that it means kesef.

 

3. According to the Rashba, the Gemara debates between two possibilities - that all methods of acquiring land may be derived, or that only kesef may be derived.

 

4. According to the explanation offered by the Ramban, in principle all methods are derivable, and in fact, one form of chalipin is in fact valid. (The Ramban offers an independent reason why chazaka is inapplicable.)

 

            It is worth noting that the assumption that Abraham's purchase was effected through kesef (clearly stated in 1. above), is not at all obvious. It is true that the Torah explicitly says that Abraham paid four hundred shekels - but it does not say that this was the act of kinyan, and that he did not also write a shtar or perform chazaka.  If the derivation is formal - the word kesef is mentioned in connection with the kicha of Efron, and therefore kesef has a role in the kicha of kiddushin - this may not be a problem; however, some Achronim apparently understood that Abraham actually used kinyan kesef - the payment of four hundred shekel - to acquire the field.

 

            (The verse [23,16], "Avraham paid out the money to Efron..." is followed by the verse, "Va-yakam sdei Efron - Efron's field was established...to Avraham as a sale."  It is possible to understand this to mean - he paid, and consequently, the sale was effectuated.  The only problem is the next two verses.  "Afterwards Avraham buried Sara his wife... Va-yakam ha-sadeh - the field was established...to Avraham as a burial portion. [19-20]" By the same interpretation, this sounds like kinyan chazaka.  Perhaps, the difference is in the results.  In the first case - kinyan kesef - it is established as a sale; in the second, the actual use and burial, it is established as an "achuzat kever," as a burial portion.  What is the significance of the dual validation of the sale?

 

            Aside from the formal question how to understand the derivation from Efron's field, our discussion today touched issues that will accompany us in many of the sugyot in the future - how exactly does kesef effect kiddushin, what is the connection between the kesef of the groom and the person of the bride, the role of hana'a, etc.

 

Appendix: On the Nature of Chalipin

 

            In our explanation of R. Tam above, we distinguished between a regular kinyan, such as kesef or chazaka, and an exchange, like barter. In standard acquisitions, an object leaves one man's possession to enter another's and therefore compensation must be given, whereas in an exchange the two objects cancel each other out in such a way that it is as if no change takes place. We explained that chalipin cannot be used for kiddushin because a woman cannot be exchanged for an object, thereby implying that no change has taken place. The Gemara's answer that chalipin is effected with a coin of less than a pruta could be seen as a formal explanation why Efron's field only serves as a source for kesef and not chalipin. But we went beyond that to explain logically why chalipin is inapplicable to kiddushin, despite its wide-ranging use in other areas of halakha.

 

            If you are still with me, I would now like to present an extension of this explanation. There is a well-known discussion in Achronim regarding kinyan. Is kinyan primarily effected by da'at, the parties intent, with the formal act necessary only to indicate, or alternatively to help concretize, the proper level of da'at?  Or perhaps the formal act effects the kinyan, and da'at is a secondary requirement. However, even those who believe that da'at is the primary cause of monetary kinyan agree that kiddushin demands a formal act. If we consider this requirement, maybe we can understand further why chalipin is inappropriate for kiddushin. Chalipin, we claimed, is not an act of transaction, but an exchange of equivalent objects, as though no transfer at all has taken place. Since kiddushin requires a formal act of acquisition, chalipin cannot be used to marry a woman.

 

            (R. Chaim Soloveitchik claimed that chalipin, unlike other kinyanim which are formal acts, represents pure da'at, and that is why it is inappropriate for kiddushin. This is parallel, but not identical, to the preceding argument.)

 

Next Week's Shiur: Kiddushei Av

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I. Kiddushin 3b, "Be'chesef" until Kiddushin 4a top line.  Tosafot s.v. "ha'av," s.v. "vechi teima"; Ritva s.v. "u'farkinan hashta..." (bottom of column 19 in Mosad Harav Kook edition).

 

II. Kiddushin 43b, "Ha'ish mekadesh" until "aviha v'lo hee" (Kid. 44a, "R. Asi lo al" until "d'ashgach bei" Tos. s.v. "tzavach."

 

III. Ritva 4b "V'itzderach" (end of column 29 in Mosad edition).

 

IV. Rambam Hil. Naarah Perek II Halakha 13-15.

 

Guiding Questions:

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1. What is the main issue of our sugya?  What is the main issue of the sugya on daf 43b?  Are the sugyot related?

 

2. How can you understand the machloket between Rav Yochanan and Reish Lakish? (Why does Rav Yochanan ignore Reish Lakish's argument on 44a? See Pnai Yehoshua there.)

 

3. What is the main point of the machloket between Rambam and Raavad? How does that fit in with what we learned in these sugyot?