Shiur #12: Shirai
GEMARA KIDDUSHIN
SHIUR #12: SHIRAI
by Rav Mosheh
Lichtenstein
The sugya of shirai (silk) (7b-8a), unlike many of the previous sugyot,
does not deal with the abstract foundations of kiddushei kesef (marriage through
money), but rather with the practical application of previously established
concepts. Technique, not theory, is
its focal point. The issue under
consideration is whether or not there is a need to assess the value of an
object, prior to its use as shveh kesef (an object replacing money) in
kiddushin. This is of obvious
practical concern, as the story in our sugya illustrates, and is therefore dealt
with by the gemara. The theoretical
significance of the question, though, is unclear.
Is the disagreement between Raba and Rav Yosef regarding the need for
assessment merely a case of differing psychological estimates as to the depth of
the woman's agreement or, perhaps, their differing opinions reflect a more basic
disagreement as to the nature of shveh kesef or kiddushei kesef.
Methodologically, we are confronted here by the classic dilemma of
whether the details are indicative of a certain approach to the basics of the
issue or are they really no more than what they seem to be - unassuming
technical details of no particular importance aside from their practical
significance. While it is clear that
the latter possibility clearly exists and must be taken into account, an answer
regarding the former can be given only after examining the sugya and its nafka
minot (ramifications) in light of the other relevant discussions in the gemara. In our case, this will mean returning
to the sugya of shveh kesef, the various understandings presented there, and
applying them to our case. We shall
now proceed, therefore, to analyze the gemara's discussion (shakla ve-tarya)
basing ourselves upon the shiurim which were given on kiddushei kesef, in
general, and shveh kesef, specifically (see shiur #3 -ed.). Let us, therefore, proceed directly
to the actual text without further ado.
A.
The gemara's starting point is a real-life occurrence, in which someone
gave a woman a silk cloth as a means of kiddushin, and the debate (machloket)
between Raba and Rav Yosef as to the accompanying conditions necessary to allow
this marriage. Raba required the
cloth to be assessed, while Rav Yosef claimed that there is no need for such
action. The gemara raises two
possibilities as to the exact circumstances of the case. According to the first approach
(lishna kama) if the woman provides explicit consent to accept an item of any
value, the kiddushin are clearly valid without assessment providing the cloth is
worth more than a pruta. If, on the
other hand, the groom fails to provide the agreed upon value, it is clear that
the kiddushin are worthless (excuse the pun).
Thus, the machloket must be in an intermediate case - where there was
insistence upon a specific sum to be provided, and that the terms of the
agreement were fulfilled. Raba makes
what would seem to be the obvious claim - that since there is compliance with
the conditions which were demanded, the deal is complete and the kiddushin are
valid. The logic is compelling and
it is hard to see any flaw in it.
Rav Yosef's opinion, however, is problematic. He says that the object must be
professionally assessed prior to the kiddushin, because the woman may be unaware
of the object's value and her assent will therefore be grudging and incomplete. Since the object is actually worth
what was promised and there is no denial or regret as to their initial
understanding, why doesn't her consent retain its validity and why must the
assessment be known to her at the time of the transaction? If the agreed upon conditions have
been fulfilled, as can be easily verified afterwards, the kiddushin should be
recognized even if the information is provided ex post facto.
To understand Rav Yosef's position, we have to return to the query, dealt
with in previous shiurim, as to the nature of kiddushei kesef. If the role of the money in kiddushei
kesef is to serve as an agent of acquisition, providing value in exchange for an
object as in monetary transactions, the kiddushin should be valid when using an
object in lieu of cash, even if it has not been assessed prior to the act. For if the desired value has been
provided, the exchange mechanism has thereby been accomplished and the deal is a
deal. This is certainly so in the
case of an ordinary monetary transaction - where there is no known requirement
of prior assessment - and be the din regarding kiddushin as well.
Thus, Rav Yosef must be understood as assuming that the monetary element
involved in kiddushin is not performing the same role as it does in commercial
affairs. The purpose of the monetary
transaction is not for its exchange value, but for the psychological affinity
and acceptance which it expresses.
The man's willingness to give the money, and his prospective wife's acceptance
of his goodwill, establish a relationship between them, which is utilized to
achieve kiddushin. Actually, the
money involved resembles more of a gift than a means of payment, and, one is
tempted to add, is better represented by the wedding ring than by a coin or
bill. Therefore, what is required is
not acquiescence to a formal legal agreement, which is binding even if the
compliance to the conditions stated is clarified ex post facto, but rather inner
emotional conviction which has to exist at the time of the actual handing over
of the object. To state the same
point differently, what matters in a commercial exchange is the result and not
the process, while in kiddushin, since the money serves to express affinity and
attachment, the emphasis is upon the actual act and the moment of giving and not
the resultant monetary implications.
Any doubt in the bride's mind at the time of the kiddushin, even if eventually
clarified, is fatal to the kiddushin, since she lacks conviction when the mutual
commitment is established. To use
Rav Yosef's phrase, 'lo samkha da'atah' (lit. she does not put her mind at
rest), which should be understood as signifying that she is not giving this form
of personal consent; she, not her accountant, must express agreement.
The above understanding of Rav Yosef's ruling is evident in Tosafot's
exposition of the gemara, further on in the sugya. The gemara quotes Rav Yosef as
providing a source for his opinion from a beraita which states that the kohen
must estimate the monetary value of an object which he receives for pidyon
ha-ben (redemption of the firstborn).
The circumstances of the case, as the gemara interprets the beraita, is
that the object is worth LESS than the required value, yet the kohen can claim
that he personally values it at a greater value than its market price. In other words, the determining
factor is the subjective worth of the object rather an objective evaluation. Even though this can be understood as
a more subjective approach to value in general, in light of the above it seems
more appropriate to relate it to the previous point. The monetary element is not serving
in a commercial capacity (in which case there would be an official rate), but as
a token of regard which is dependent upon his personal acceptance. [Three qualifications must be added
to this claim: a. There is a machloket between the Rambam and Rashba as to the
extent of the subjectivity allowed.
Our remarks follow the Rambam's approach (Bikkurim 11:7). B. Other Rishonim, unlike the
Tosafot, explain this passage as relating to the lishna batra (second approach);
if so, as indeed is the simpler reading of the sugya, the entire discussion is
irrelevant to us. C. The application
of these concepts to pidyon ha-ben is highly problematic - see Avnei Miluim
31:3.]
Before concluding our discussion of the lishna kama, the following points
should be added. 1. Raba does not
necessarily disagree with Rav Yosef in principle; it is quite possible that he
accepts Rav Yosef's position regarding the nature of kiddushei kesef, yet is
unconcerned that the woman will be unaware of the real value, and, therefore, he
does not require assessment. 2.
Conversely, Rav Yosef may admit that kiddushei kesef are also a transaction, and
function as both personal and acquisitive kiddushin.
B.
The latter approach in the sugya (lishna batra) pinpoints the
disagreement between Raba and Rav Yosef as a debate regarding the nature of the
money employed to achieve kiddushei kesef.
The opening mishna of the masekhet states that kiddushei kesef include
not only actual money in the form of coins, but also goods equivalent in value
to a pruta (Shveh kesef ke-kesef).
Shiur #3 in this series, which dealt with the topic of shveh kesef, suggested
three possible approaches to the concept of kiddushei shveh kesef. The first one, attributed to Tosafot,
viewed shveh kesef as an expansion of the cheftza (object) of kesef. Kiddushin are achieved by giving the
bride an object of a monetary nature, such as coins or cash. The essence of the kiddushin, though,
is not the transfer of value involved in the transaction, but the symbolism of
purchase embodied in the handing over of the pruta. Therefore, the use of actual currency
may be necessary to express the symbolic element; for though all goods have an
inherent value which is capable of exchange, the basic definition of an object -
which is the determining factor regarding symbolic use - is in reference to its
nature as a specific article and not as an agent of value. Thus, if we maintain the symbolic
view of the act of kiddushin (see shiur #3 for a more complete presentation), it
reasons, me-sevara, that a coin is valid for kiddushin, while other objects will
not be able to serve this purpose, unless the Torah will expand the category of
a monetary object. This is exactly
what the halakha of shveh kesef does, according to Tosafot. The Torah provides a special source
which sanctions the use of commodities as a monetary object, even in those
areas, such as kiddushin and pidyon ha-ben, where currency is required.
This transformation of an object from an artifact to a monetary object,
is the issue which concerns Rav Yosef.
For though the halakha of shveh kesef determines that such a
metamorphosis is possible, the rationale is unclear. If the defining element of an item is
its primary usage as an individual article, the inherent value within it should
not be able to transform it into money.
Therefore, Rav Yosef rules that assessment is required to enable the
transition of a plain object to a cheftza of kesef. If the object is unchanged, it will
retain its basic identity as an object and cannot be considered as currency. The process of assessment, however,
affects a change; by affixing a price tag to the object and relating to its
value, the relationship between utility and value is altered. It is no longer only an object whose
functional use defines its basic nature, but also a form of currency measured in
dollars and cents. The act of
assessment, by focusing upon the monetary element, changes the very nature of
the object and allows us to redefine it as a form of money. Therefore, it is a basic mechanism
essential to the application of shveh kesef, and is not, as in the lishna kama,
a mere inquiry to determine unknown value.
A second approach to shveh kesef is to assume that kiddushei kesef do not
require an actual object of money.
Rather, any transfer of a pruta's value from the groom to the bride is
satisfactory for purposes of kiddushin.
This can be directly achieved by use of cash or, secondarily, by
utilizing the value inherent in every object in lieu of money. The use of commodities as an agent of
kiddushin is - according to this understanding - simply an additional form of
payment to achieve the desired monetary transaction between the two parties. Such an understanding, which is
consistent with Ramban's opinion that the parties' agreement suffices to
legitimize the use of shveh kesef, even without an explicit textual source, will
account for Raba's psak that assessment is unnecessary. Since the real inherent value which
resides in every object is sought after, and not a symbolic item - there is no
need to redefine the object in order to realize its value and, therefore,
assessment is not required.
The third alternative suggested in the previous shiur to explain the use
of shveh kesef assumed that kiddushin have a dual track; the first one is
monetary kiddushin, an act of acquisition brought about by the use of coins or
cash to transfer the designated value from the man to the woman, while the other
option is kiddushin which are created by means of establishing an interpersonal
relationship. The second model of
kiddushin utilizes shveh kesef, not as a form of payment, but as a token of
alliance and association, which expresses their mutual understanding and
willingness to give and receive.
This, too, conforms with Raba's ruling that assessment is unnecessary. Since it is the object as such that
interests us, there is clearly no need for an assessment to establish value as
the main element involved in the kiddushin.
Thus, Rav Yosef's opinion that assessment is required in cases of shveh
kesef develops the concept of shveh kesef as an expansion of the object of
kesef, but is seemingly incompatible with other understandings of shveh kesef. Raba, on the other hand, is easily
understood if shveh kesef is treated either as a non-monetary object or if value
per se is sufficient, and not only an object whose essence is the explicit
expression of value.
The conclusion of the above discussion is that the debate between Raba
and Rav Yosef in our sugya seems to correspond to the machloket between Ramban
and Tosafot in the mishna of shveh kesef.
Regarding Rav Yosef, this would indeed seem to be so; his opinion is
eminently logical within the context of Tosafot's approach and highly
problematic according to Ramban.
Conversely, Raba is certainly more convincing when approached from Ramban's
perspective, be it either of the two possible explanations. This, however, poses an obvious
problem. Since the gemara explicitly
decides in Raba's favor that assessment is unnecessary, the inescapable
conclusion is that Ramban's position must be accepted and Tosafot's opinion
rejected. Therefore, the following
point must be made. Indeed, Raba is
better understood according to Ramban's concept of shveh kesef, and, presumably,
Ramban himself took this into account when formulating his opinion. Tosafot, however, must assume that
Raba is fundamentally accepting Rav Yosef's conceptual understanding of shveh
kesef and disagreeing with him only as to the practical need for an act of
conversion to create a monetary object.
Raba's ruling can therefore be accepted, while simultaneously Rav Yosef's
conceptual understanding.
In the course of the sugya, Rav Yosef attempts to justify his opinion by
citing sources regarding the release of an eved ivri (Jewish slave) and pidyon
ha-ben which seem to imply that assessment is necessary. This, however, is appropriate only if
the need for money in both these areas is similar to kiddushin, i.e. that a
formal object of money is required and not the transfer of value per se. The gemara rejects these proofs by
explaining the quoted sources in such a manner that they do not require
assessment. What is left unclear,
though, is the rationale behind this rejection.
Is it due to acceptance of Rav Yosef's premises as to the nature of the
monetary element in these halakhot and disagreement regarding the need for
assessment to create a monetary object, as Tosafot understand Raba, or do we
have here additional machlokot relating to pidyon ha-ben and eved ivri vis-a-vis
function of kesef in their system?
Though the first possibility provides a smoother reading of the gemara, the
alternate understanding is also possible.
What is clear, though, is that the issue of assessment in these cases
must be based upon certain premises, based upon the principles developed above
within the limited context of kiddushin.
Summary:
In conclusion, let us return to our starting point. Raba and Rav Yosef disagree as to the
need to assess an object which is given for the purpose of kiddushin. The lishna kama presents this as a
debate regarding the level of the receiver's knowledgeable consent. Is the argument between the amoraim
due to different factual estimates regarding women's knowledgibility in these
matters, or does it reflect a more basic difference of approach regarding
kiddushin? While, the possibility
that it is no more than a local disagreement cannot be ruled out, we have
attempted to demonstrate that the two differing opinions may represent divergent
conceptual understandings of kiddushei kesef.
The lishna batra, though, which represents Rav Yosef as requiring a legal
mechanism of conversion for shveh kesef, certainly presents us with a conceptual
legal issue and not a psychological one.
The fundamental question dealt with by the two amoraim is an issue which
we have already dealt with in the context of the mishna; what is added in this
sugya is a sharp illustration of the monetary approach to shveh kesef, as
expressed in Rav Yosef's ruling.
Raba's position, which the gemara (9a) adopts as halakha, is amenable to both
viewpoints regarding shveh kesef, thereby enabling the Tosafot and Ramban to
carry on the debate a millennium later.
Next week, we will discuss the topic of "mekadesh be-mashkon" (8a-b until
"... priti ein ken, nas'cha ein kan").
The sugya has two distinct parts; first, the use of a surety given by the
groom to the bride, and second, the transfer to the bride of a surety given to
the groom by his debtor. The main
Rishonim to see, other than Rashi and Tosafot, are the Rosh (1:10), and the
Ramban (s.v. Maneh).
Try to answer the following questions:
1. What is the nature of the deficiency in mekadesh be-mashkon - is it a
kiddushin problem or one in the monetary aspect of the transaction?
2. What is the difference between the groom's surety and his transfer of
someone else's?
3. What does it mean to say that a creditor "owns" a surety?