Shiur #13: Mekadesh Be-Mashkon
The sugya of 'mekadesh be-mashkon' (8a-b) has two distinct parts. First we shall discuss the case known as mekadesh be-mashkon - one who gives a pledge, in lieu of money, to a woman in order to effect kiddushin. Secondly, we shall discuss the case known as mashkon de-acheirim - one who transfers a pledge that he received from somebody else to a woman in order to effect kiddushin.
A. Mekadesh be-mashkon - The gemara says: "If he said to her, be betrothed to me through a maneh (100 zuz) and he gave her a pledge (mashkon) for it, she is not mekudeshet - the maneh is not here; the pledge is not here." The exact meaning of the concluding phrase is the subject of a disagreement among the Rishonim.
Rashi writes: "The maneh is not here - THEREFORE the mashkon is worthless, as it is not a gift." The Rosh elaborates: "The mashkon is not attached (meshu'abad - subject to a lien) to anything, for a man may attach his property to a debt for which he is obligated, but for something for which he is not obligated, no attachment can apply to his property. The gift which he intended to give (her) is not an obligation nor will it be one, as he may renege. Therefore, the mashkon is not attached when she obtains it."
The reading of the gemara according to this explanation is as follows: The maneh is not here - there is no obligation on the man to give the maneh to the woman - hence, the mashkon is meaningless and is not really a mashkon at all. It cannot be used to obtain anything from the man and must be returned when he requests it. Hence, there is nothing that can be considered kesef kiddushin - he has given her no monetary value that can effect the kiddushin. Only if a valid prior obligation on the man to give money to the woman existed, could a mashkon be given to secure the debt. In such a case, it would appear, the mashkon could also serve as kesef kiddushin. The rights that the woman would obtain in the mashkon, which enable her to eventually collect the debt, are apparently considered to be kesef, even though the mashkon itself will be redeemed when the debt is paid.
It is important to distinguish between two different issues here. The first is one of civil law - can one acquire a mashkon without a prior debt? Does the recipient of a mashkon in this case have any rights in it, or must he return it when requested? The second issue is one of kiddushin. If there were rights obtained in a mashkon, would the granting of those rights be effective for kiddushin? Rashi, the Rosh, and Tosafot answer the first question in the negative and the second in the positive. There is no such thing as a mashkon without a prior debt, but giving a woman a mashkon from a proper debt would effect kiddushin.
The Ramban disagrees with both points. He interprets the critical sentence of the gemara as follows: "Since he is not betrothing her with the mashkon itself ('mashkon gufa'), even though he said to her: acquire it as a lien on the maneh, AND SHE DID ACQUIRE IT, the mashkon is not here - i.e., it does not effect a kinyan, as it is like a loan which is not in existence, since the maneh is not here. Hence, she is not betrothed and he may get his mashkon back from her."
The Ramban first claims that giving the mashkon to the woman in order to secure the maneh is effective - "she did acquire it." Nonetheless, kiddushin is not effected because of a deficiency in fulfilling the laws of kiddushin - this is an equivalent to mekadesh be-milveh, to betrothing with a loan (6b). Therefore, even though the woman has obtained rights in the mashkon, she is not mekudeshet. As we said, the Ramban clearly disagrees with both points of the Rosh.
Concerning the first point, the Avnei Miluim claims that the Ramban holds that a lien may be effected on property even without the existence of a personal debt (shi'abud nekhasim without shi'abud ha-guf). This is what the Rosh explicitly rejects - how can there be a security for a non-existent loan? There is, however, an alternative way to understand the Ramban. He may be claiming that giving a mashkon is an acceptable method of CREATING A NEW indebtedness.
The issue under discussion here is the appropriateness of a given method of creating a personal debt. Like acquisition of property, the creation of a debt requires a kinyan (formal act of acquisition). The preferred method is shtar - a deed - or, according to some, chalipin. Those Rishonim who disagree with the Ramban claim that an act of kinyan must relate to the object to which the kinyan applies. If you are trying to buy a shirt, the kinyan must in some way involve the shirt itself. In the creation of a personal debt, the object that is being obligated by this transaction is the person himself. Hence, shtar or chalipin are acceptable kinyanim to effect a personal debt, as both of these methods can create a kinyan on any object, including a person. However, physical possession of the mashkon is an appropriate method of kinyan only on the mashkon itself, but does not obligate the person who gave the mashkon.
The Avnei Miluim accepts this argument implicitly; hence, he explains that the Ramban holds that a shi'abud nekhasim - a quasi-kinyan on the mashkon - is created by giving it to the woman, without any change in status relating to the person of the man. My alternative is that the Ramban maintains that by possessing the mashkon, a shi'abud is simultaneously created on the person of the man, in the same way that it could be created through shtar or chalipin. Once this is accepted, the mashkon is a perfectly normal one, a security for an existing debt, in which the woman has rights that she need not relinquish unless he pays his debt and gives her the maneh. The language of the Rosh when quoting the opinion that he rejects (without mentioning the name of the Ramban) supports this understanding.
The Ramban therefore explains that although she has acquired certain rights, and these rights are economically valuable, she is not married for another reason. Betrothing by giving the bride these rights is the equivalent of mekadesh be-milveh, as no particular object of value is being received right now. Since the maneh is not transferred now, even though she has obtained rights to it, this is ineffectual in kiddushin. This is parallel to what takes place in the case of mekadesh be-milveh, where the woman obtains the right to not repay a debt, but no money exchanges hands at that time. In other words, the Rosh considers the debt to be an object of value (and she would be mekudeshet were such a debt to exist); the Ramban considers it to be merely a right to obtain an object of value in the future. As far as kiddushin is concerned, a debt is not an object of value.
(The second half of this shiur will discuss mekadesh be-mashkon de-acheirim - transferring a mashkon from a debtor to the woman. In that case, it appears that the transfer of a debt can be used to effect kiddushin, implying that the debt per se is a legitimate object. We shall discuss the Ramban's distinction between the two cases below.)
What would be the response of the Ramban to the argument that possession of a mashkon cannot effect a personal debt as it does not relate to the object that is being obligated by the kinyan (the person of the debtor)? I think the answer is that he considers the mashkon to be an objectification of the debt. A shi'abud nekhasim and a shi'abud ha-guf are not two different things - one is the property objectification of the other. Hence, by obtaining physical possession of an object from which a debt can be collected, one is obtaining power - shi'abud - over the debtor as well.
As we shall see below, many Rishonim agree that transfer of a mashkon of an existent debt from the creditor to another person transfers the debt from the debtor to that person. The logic here is similar - the debt is somehow "in" the mashkon, and possession of the mashkon relates to the debt itself and not merely to the mashkon as an object. The difference here is that the debt does not yet exist. The Ramban is claiming that not only does a mashkon of a debt objectify the debt, but any object may be converted into a mashkon in order to provide a method to create that debt. This is a significant extension of the more accepted position concerning transfer of existing debts, but it is based on a similar concept.
B. Mashkon de-acheirim - The gemara continues by stating that one may betroth a woman through the transfer of an existing mashkon, which he holds as security from his debtor. This is based on a statement of R. Yitzchak, that a creditor acquires ("koneh") i.e., has rights of ownership in the mashkon.
According to the approach of the Rosh above, the explanation here is obvious. In the previous case, the mashkon was not a valid mashkon, as it was not securing an existent loan. Here, the mashkon is the security on a loan between the man and his debtor. Giving it to the woman transfers to her the rights inherent in the mashkon, and the Rosh agrees that this is effectual. Since she need not return the mashkon to the debtor if he does not pay her his debt, her receiving the mashkon has put in her hands - legally - an object of value. Since she received this value from the man, she may be betrothed by this transfer. The only question is: Why is the statement of R. Yitzchak a necessary prerequisite of this explanation?
A simple explanation would be that the ability of the man to transfer the mashkon to someone else depends on his having ownership rights in the mashkon. The debt is personal - between him and the debtor. The mashkon, if understood merely as a pledge given to the creditor with the stipulation that he need not return it without receiving payment, could not be transferred to another party. The power to give something to someone else, in essence, is the power of ownership. R. Yitzchak is saying that the power of collection inherent in a mashkon is a property right of the creditor, which can be transferred to another like any other property right.
The facts of mashkon are not in question here. Someone who holds a pledge cannot be forced to return it unless the debtor repays the loan. R. Yitzchak defines this ability to hold on to the property of someone else and not return it on demand to be a type of ownership. He is arguing that if the object were completely the property of the debtor, the creditor would not have a right to hold on to it. Whatever rights the creditor has, therefore, are transferable. Hence, he can give the object, with respect to those rights, to a woman in return for her betrothal.
The anonymous opposing opinion to R. Yitzchak denies that the ability of a creditor to withhold a pledge implies a right of ownership in the pledge. Although the pledge belongs wholly to the debtor, and the creditor is only a 'shomer,' a guardian, holding it in trust, the agreement between them allows him to maintain that trust irrespective of the wishes of the owner. I think this means that the agreement between them is personal, rather than a right in the object. The creditor is not obligated to accept instructions from the debtor. This relationship is not transferable to another, as it has not been objectified as a property right. Only the introduction of R. Yitzchak, then, allows one to give the mashkon, an object of value, to the woman, thereby endowing her with the rights inherent in the mashkon.
The Ramban, who has ruled the giving of a valid mashkon as ineffectual for kiddushin, has more of a problem here. What is the difference between one's own mashkon, and the transfer of someone else's? Let us try and analyze the words of the Ramban. The Ramban writes:"... if she acquires a lien on a debtor she is betrothed.... Therefore, a loan with a mashkon, since she obtains a partial kinyan... she is betrothed with it.... But only with a loan of others (i.e., the man's debtor), as the lien leaves the hands of the man and comes into the hands of the woman. However, a lien on himself; e.g., (if he says) I am obligated to pay you a maneh, using a deed or chalipin (to establish the obligation), cannot be used to effectuate kiddushin, in the same way as a loan (cannot be used to effectuate kiddushin - mekadesh be-milveh), as HERE (in the usual case of a loan) NOTHING COMES INTO HER HANDS, AND HERE (in the case of a new mashkon) NOTHING LEAVES HIS HANDS, AS A LIEN IS IN THE HANDS OF THE CREDITOR, and all the value (mammon) remains by him, AND SINCE IT IS ATTACHED TO HIM IT IS NOT KIDDUSHIN."[Read the paragraph slowly and try and understand the distinction.]
The phrase, "a lien is in the hands of the creditor" was the central expression used to explain, in the previous section of the Ramban, why mekadesh be-milveh is not effective. The distinction made by the Ramban in this section, though, is not immediately understood. We shall now examine how this point is cited by subsequent Rishonim.
The Ritva and the Ran pose alternate methods for explaining this distinction. The Ritva writes, "There (in loan of others), when she acquires the loan, he loses value (mammon - an object of worth), as the lien of the creditor leaves him and is acquired by her; but a lien on himself in which he obligates himself through deed or chalipin, WHERE NOTHING LEAVES HIM... is not kiddushin."
The Ran writes: "In a case of loan of others the kesef kiddushin is not connected to the man at all, since as soon as he has betrothed her with that loan, there is nothing of hers by him. This is not the case where the loan is his, as "the maneh is not here"; i.e., the maneh with which he is betrothing her IS STILL ATTACHED TO HIM, AND KESEF KIDDUSHIN WHICH IS ATTACHED TO THE HUSBAND is not kesef kiddushin."
The Ritva is stressing the fact that in a loan of others, the man possessed something before the kiddushin - a lien - which he loses by the act of kiddushin. When he creates a new obligation to the woman, however, nothing existent leaves his possession, although he is now poorer and she is richer. In other words, the Ritva is defining the act of kiddushin with kesef as "giving" - which requires a pre-existent object in one's possession and its transfer to another's.
The Ran is claiming that "giving" must result in total divorce of the giver from the object. The stress here is not on the pre-existent nature of the lien, but on its subsequent separation from the giver. Where a lien is transferred, there is no connection after-the-fact between the woman and the man, the former creditor. Where a lien is created, he remains "attached" to the lien after the completion of the act of kiddushin.
Both the Ran and the Ritva are using a definition of "giving" to distinguish between the two cases. To give is to lose something. The Ritva maintains that the concept of loss demands that he own the object before the act. The Ran requires that he not own or be connected to the object in any way after the act. A careful comparison of these definitions with the citation from the Ramban above reveals the common source for both of them.[Read over the citation from the Ramban above and see if you understand it now.]
It should be noted that the explanation of mashkon de-acheirim of the Rosh permits us to conclude that the object of the kesef kiddushin is the mashkon itself. The explanation of the Ramban posits that the object is the shi'abud, the lien, or the debt. The Rosh can also agree to this. In the first case of the gemara, there was neither a lien, nor a mashkon, according to the Rosh. In the second case, either one is potentially a candidate for kesef kiddushin, since both are present. All that is needed in order to validate the lien as kesef kiddushin, is to claim that the transfer of a mashkon from the man to the woman transfers to her the personal debt of the debtor. The Ramban undoubtedly maintains this position, and the Rosh, even though he argues that this method cannot create a new indebtedness, may agree that it can be used to transfer an existent one.
Sources and Questions for Next Week's Shiur:
Topic: "Tena'im Al Gabi Sela - The Scope of Areivut"
1) Gemara 8b "Tannu Rabannan Hitkadshi...at", Rashi s.v. Ve-im, Tosafot s.v. Im.
What is the argument between Rashi and Tosafot regarding the distinction of the gemara?
2) Ritva s.v. Tannu(#3), until "...piv chayev."What important component does the Ritva add to Tosafot's position?
3) Ramban "Hayeta...mekudeshet", Rashba s.v. Ha. How do the Ramban and Rashba explain Rashi's rejection of Tosafot's position?
4) Tosafot Rid "Al...be-yada dami", Shita Lo Noda Le-mi s.v. Tena'im Al.
How do these two Rishonim respond to the assertion of the Rashba?