Shiur #15: Kiddushei Shtar
GEMARA KIDDUSHIN
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by Patti and Michael
Steinmetz and Family.
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SHIUR #15: KIDDUSHEI
SHTAR
by: Rav Yaacov
Francus
Introduction
The first mishna in Kiddushin states that a woman may be married through
a marriage contract. This shiur will
analyze the gemara's discussion of this type of kinyan, and try to uncover the
nature of kiddushei shtar.
1. Shtar Kiddushin versus Shtar Kinyan
The gemara (Kiddushin 9a) states that the husband must write the shtar
kiddushin (marriage contract),and give it to the wife. The gemara asks why a shtar kinyan
(commercial bill of sale) is given by the seller, whereas the shtar kiddushin is
given by the husband (who is analogous to the buyer). The gemara offers two answers. One is that there is a 'hilkhata' (an
oral tradition) that this is so, and the other is that based on the pesukim
(verses) in the Torah the shtar kinyan is given by the makneh (seller), and the
shtar kiddushin by the husband. The
prooftext regarding kiddushin is "ki yikach."
This distinction between shtar kinyan and shtar kiddushin raises a
broader issue whether there is a basic difference between the shtarot, or
whether the kinyan (act of acquisition) is essentially the same despite
technical distinctions.
To answer this question, we must first analyze kinyan shtar itself and
then compare it to the use of shtar for kiddushin.
Kinyan Shtar
There is a basic disagreement between R. Meir and R. Elazar with regard
to shtarot (see Kiddushin 48a).
According to R. Meir a shtar must have the signature of the witnesses affixed to
it. R. Meir's view is that "eidei
chatima kartei" - the signature of the witnesses creates the shtar. R. Elazar's view is that even if no
witnesses sign the shtar, if they are present when the shtar is handed over the
shtar is valid. According to R.
Elazar "eidei mesira kartei," the witnesses give the shtar its validity when
they witness the handing over of the shtar.
It is important to note that there are two types of shtar. 1. Shtar kinyan - a shtar given from
the seller to the buyer in order to effect a transfer of ownership. 2. Shtar ra'aya - a document given
over as evidence. For instance a
shtar halva'a - a document which attests to a loan - is merely evidence in the
hands of the lender proving that the borrower owes him money. This type of shtar does not create
the monetary obligation, but merely attests to it. It is reasonable to assume that both
R. Elazar and R. Meir agree that a shtar ra'aya requires the actual signature of
the witnesses - eidei chatima, otherwise, the document would not furnish any
proof. The argument between R. Meir
and R. Elazar is limited to a shtar kinyan.
(See Tosafot Rid Bava Batra 77a.)
The nature of the kinyan shtar may depend on the disagreement of R.
Elazar and R. Meir. According to R.
Meir that "eidei chatima kartei" the essence of the shtar may be the proof
inherent in it. Therefore R. Meir
requires the actual signature of the witnesses for a shtar kinyan, just as it
was necessary for a shtar ra'aya.
According to R. Elazar that "eidei mesira kartei" the shtar kinyan may be a
formal document whose mere transfer effects the kinyan.
The nature of kinyan shtar might also depend on who gives the shtar. If the effectiveness of kinyan shtar
stems from the fact that the proof of ownership is transferred to the koneh
(buyer), clearly the makneh must give the shtar.
However, if kinyan shtar is merely a formal act which consists of handing
over a shtar kinyan, it may be possible to consider letting the koneh give the
shtar to the makneh. (It may be
similar to a kinyan sudar (handkerchief) according to the understanding that
kinyan sudar is not based on kinyan kesef, but is a formal act by which the
kinyan takes place. [See shiur #4 - ed.])
Kiddushin as Kinyan Shtar
The halakha is that the makneh must give the shtar, and the shtar states
that the makneh is transferring the field to the koneh. The shtar kiddushin, however, states
that the husband is being koneh the wife, and is nevertheless given by the
husband. If kinyan shtar is
essentially a formal act of transferring a shtar, then the shtar kiddushin can
be viewed as a regular shtar kinyan.
The shtar kiddushin, however, must be given by the husband, although he is the
koneh, because the Torah says "ki yikach," indicating that the husband must play
the active role in the kiddushin.
If, however, we maintain the position that a shtar is koneh through the
transfer of proof, we are forced to suggest an alternate understanding of shtar
kiddushin.
Perhaps, a shtar kiddushin can also be viewed as serving a role very
different from a regular shtar kinyan.
Whereas a shtar kinyan relates to acquisition, the shtar kiddushin
relates to the change in the personal status of the couple. The shtar concentrates on the
ramifications of the kiddushin, the status of the bride as an "eshet ish,” a
married woman. By analogy, a
divorce, a get, can also be viewed as a document whose focus is on the change in
personal status of the woman. Before
receiving the get she is an "eshet ish" (married woman) and after receiving the
get she becomes a "grusha,” a divorced, unmarried woman. Accordingly, the shtar kiddushin,
whose validity is learned about from get, would be a "shtar issur,” a shtar
which creates a change in personal status, rather than a shtar kinyan. The kinyan associated with kiddushin
would naturally follow from the change in personal status.
Summary
If a shtar kinyan operates by transferring proof of ownership to the
buyer, then a shtar kiddushin cannot be viewed as a regular shtar kinyan. Perhaps a shtar kiddushin is a 'shtar
issur,' unlike a shtar kinyan that relates only to monetary acquisitions. However, if kinyan shtar operates by
the formal act of transferring an official document of sale, it is possible to
view a shtar kiddushin as a type of shtar kinyan, despite the technical
discrepancy that the man - koneh hands the shtar to the women - makneh.
2. Shtar Kiddushin versus Get
The gemara then asks whether a shtar kiddushin has to be written
'lishma,' with the specific intent that a specific man will use the shtar to
marry a specific woman. The gemara
concludes, based on "ve-yatz'a ve-hayta," a verse which compares marriage to
divorce, that the shtar kiddushin similar to a get must be written lishma. This gemara raises the question of
the relationship between the shtar kiddushin and the get. The possibility that in fact lishma
is not needed appears to be based on the understanding that the limud from get
is only with regards to the question of whether a shtar can be used for
kiddushin, but the specific rules of the shtar are not learned from gittin. The conclusion of the gemara, which
compares shtar kiddushin to get with regard to lishma, raises the issue as to
the extent of this comparison.
The Rishonim, for instance, discuss another requirement learned from the
laws of gittin as well - the question of whether the bride and groom must be
mentioned by name in a shtar kiddushin.
The Ramban is inclined to accept the view that the Torah requires the
names of the husband and wife to be mentioned in a get. This is based on the fact that a get
is called a "sefer keritut" (book of severance) which indicates that the story
of the divorce must be told in the get.
Therefore, the Ramban concludes that a shtar kiddushin must also include
the names of the bride and groom.
The Ritva disagrees and writes that even if the Torah requires the names of the
husband and wife to be included in a get, there is no such requirement by a
shtar kiddushin. The requirement of
"sefer keritut" which exists by gittin does not exist for a shtar kiddushin. A shtar kiddushin is valid so long as
it is clear who is getting married, even if the information is not explicitly
mentioned in the shtar.
The Ramban and Ritva disagree whether the requirement of sefer keritut
applies to a shtar kiddushin or not - does a shtar kiddushin have to be a
"sefer,” a document which clearly tells the story of what is happening, or not?
3. Sefer Keritut - personal statement or official document
The unique status of the get as a sefer keritut can be explained in two
ways.
A. Rav Lichtenstein asserts that whereas all shtarot may be viewed as
the written testimony of the witnesses, a get must be viewed as the written
statement of the husband which may be transmitted by means of witnesses. Thus, the get must be a statement
directly from the husband, and cannot be phrased as the testimony of witnesses
who witnessed the divorce. Other
shtarot, such as a ketuva, can be phrased as testimony of the witnesses, and
need not be in first person. The
Ramban s.v. Bein states that a get must be a statement of the husband directly
to the wife. As a personal message
the get may have to contain the information of who is sending it, and who
receives it. The ability to glean
this information from the witnesses, or from the fact that the woman has the get
in her possession (which may replace the requirement to have her name
mentioned), does not suffice. By
contrast, the basic point of the shtar is to serve as testimony, therefore even
if all the information is not included in the text, it can be used in
conjunction with other evidence which is external to the text.
According to the Ritva, the laws of shtar kiddushin are learned from
those aspects of the get which are parallel to other shtarot. However, they need not parallel a get
with regard to requirements which are unique to a get being a personal statement
of the husband to the wife.
Therefore the names of the husband and wife need not be written in the shtar. The Ramban, on the other hand,
applies even these requirements which are unique to get, to a shtar kiddushin.
B. The Ritva (Kiddushin 9a s.v. 'Amar Rava,' the paragraph which begins
've-ha de-amrinan') however, also denies that a get has to be phrased as the
direct statement of the husband to the wife.
Thus, it seems clear that the Ritva disagrees with the principle of the
Ramban, and argues that the uniqueness of a get does not stem from its nature as
the personal statement of the husband to the wife.
Accordingly, the rule of sefer keritut can simply mean that there is a
special requirement by gittin that the story of the divorce be clear from the
get itself. Thus, whereas another
shtar need not contain within it the entire story of what took place, a get must
contain within it clear documentation of the divorce. According to R. Meir the witnesses
must also be in the shtar while according to R. Elazar they need not be in the
shtar, but the entire episode must be contained in the get. Thus, it is possible that only by
get, and not by kiddushin, is there a requirement that the shtar contain
complete evidence of what happened i.e. the shtar itself must tell the story
clearly.
This understanding of the nature of the requirement of 'sefer,' may lead
to another conclusion. The Rambam's
view (Hilkhot Geirushin 1:13,15,16) is that although R. Elazar's view is that
"eidei mesira kartei,” R. Elazar agrees that eidei chatima also suffice for a
get. That is, according to R. Elazar
"af eidei mesira kartei". (This
question is hotly debated by Rishonim.)
Nevertheless, the Rambam only mentions eidei mesira in Hilkhot Ishut
(3:3) when he describes a shtar kiddushin.
The Gra, in his gloss to the Shulchan Arukh (Even Ha-ezer 32 note 2),
states that according to the Rambam eidei chatima are insufficient for a shtar
kiddushin, and valid only for a get.
It is possible that since a get is considered a sefer keritut, the Torah
indicated that the written document must tell the story of the divorce, and also
indicated that the witnesses can sign the get, and need not actually be present
when it is handed over. Since the
term sefer is used in Yirmiyahu with reference to a shtar whose only function is
to serve as evidence of a sale, a shtar ra'aya (see Kiddushin 26a) we see that a
sefer can mean a document which witnesses sign.
Therefore, even R. Elazar whose view is that shtarot require eidei
mesira, agrees that for a get eidei chatima are also sufficient. The shtar
kiddushin, which does not have the halakha of sefer, can only function with
eidei mesira. (R. Meir, by contrast,
whose view is that any shtar requires witnesses who sign it, certainly requires
eidei chatima for a shtar kiddushin, as stated in the gemara in kiddushin 48a.)
Summary
The requirement that get be a 'sefer keritut,' can indicate one of two
things. Rav Lichtenstein (following
the Ramban) understood that a get must be the personal statement of the husband. Therefore, the get must include all
the personal details of the case, such as the husband and wife's names, in the
shtar. We (following the Ritva)
proposed that the requirement of 'sefer' tells us that the get must be a written
document that tells the story of the divorce.
This document can merely be signed by the witnesses, who need not
actually be present when it is handed over.
The shtar kiddushin, however, which does not have the halakha of sefer,
can only function with eidei mesira, and needn't be explicit as to the details
of the story.
4. Shtar Kiddushin on Mechubar
The gemara (Gittin 9b-10a) seems to indicate that a shtar kiddushin is
invalid if written on mechubar, on something which is attached to the ground,
such as a leaf. This is explicitly
stated in Rashi on Gittin 10a s.v. 'Hakhi Garsinan.' The Yerushalmi derives this halakha,
with respect to gittin, from the word sefer.
Therefore, if the rules of sefer keritut do not apply to a shtar
kiddushin, mechubar would be allowed since the requirements of sefer are not
applicable to a shtar kiddushin. If,
however, only those aspects of a get which are unique to it as the personal
message of the husband are not applied to kiddushin, then the halakha that
mechubar is invalid would also be applicable to a shtar kiddushin.
The Rashba (Responsa no. 600) writes that mechubar is only invalid for
gittin. (However, the Rashba on
Gittin 10a and in Responsa no. 1226 explains like Rashi that a shtar kiddushin
is invalid if written on mechubar.) According to the Ramban that the names of
husband and wife must be stated explicitly in a shtar kiddushin, sefer is
required as well.
The Bavli, however, derives the invalidity of a get mechubar from
"ve-khatav ve-natan." Accordingly,
the source of the argument whether or not mechubar is valid for kiddushin, is
how to understand this limud. On the
one hand, it may indicate that the get must be written on something which can be
handed over, and may thus be easily applicable to a shtar kiddushin which must
be handed over as well. However, it
may indicate the need for a continuous process starting with the writing of the
get and extending to the handing over of the get, the netina, with no additional
interruption. If so, the halakha
that a get cannot be written on mechubar would depend on the fact that netina is
a formal requirement for gittin. If
so, the applicability of this halakha to a shtar kiddushin would then depend on
whether there is a requirement of netina by a kiddushin just as there is a
requirement of netina by a get. The
Rambam does not mention the requirement of netina by a shtar kiddushin, nor does
the Rambam mention the psul (invalidity of) mechubar. However, the Acharonim do raise the
possibility that if a woman picks up the shtar from the ground, rather than
having the husband hand it over, the kiddushin are invalid. The source of this halakha is gittin. It is based on the fact that there is
a requirement of netina with regard to get.
5. Shtar Kiddushin on Issurei Hana'a
Issurei hana'a are objects from which no benefit may be received. For example, chametz on pesach is an
issur hana'a. It may not be eaten,
nor may one benefit from chametz by selling it.
The Rishonim disagree whether or not it is possible to transfer ownership
of issurei hana'a from one person to another.
Thus, if on pesach Reuven hands over his chametz to Shimon, Shimon's
ownership of the chametz is subject to this debate among the Rishonim.
The Rashba in a responsa (203) writes that a shtar kiddushin cannot be
written on issurei hana'a despite the fact that a get can be written on issurei
hana'a. The Ran, however, says that
the rules of get and kiddushin should be identical. The Avnei Miluim (no. 139) explains
the Rashba's position. He asserts
that a get is valid if it is handed over, even if the woman does not acquire
possession of the paper. The proof
is that a get can be given despite the wife's refusal to accept it, whereas
nobody can acquire anything, including a piece of paper, against his will. The Avnei Miluim accepts the view
that it is impossible to acquire issurei hana'a.
Consequently, since a get can be given on issurei hana'a (Gittin 20a), a
get must be valid even if it is not acquired by the wife. He continues to claim that a regular
kinyan shtar is only valid if the koneh actually acquires the shtar. (A close reading of the Rashba in
Gittin 75a s.v. 'Mikhlal' seems to indicate that indeed there is no requirement
for the wife to be koneh the get.)
According to the Avnei Miluim, the validity of a shtar kiddushin written
on issurei hana'a is dependent on whether a formal netina (which is possible by
issurei hana'a) is sufficient. If we
need a legal acquisition of the shtar kiddushin, then a shtar kiddushin written
on issurei hana'a would not be valid.
This is the conclusion of the Avnei Miluim; however, it is not
self-evident. If a get is valid
although the document is not acquired by the wife, the same may be true with
respect to a shtar kiddushin. This
depends on how we understand the kinyan accomplished by shtar kinyan. If we understand that the shtar
kiddushin is also comparable to a get with regards to the way the kinyan takes
place, based on the limud "ve-yatza ve-hayta,” kiddushin should be valid just
like a get. (See Gittin 78a, the second mishna, and the gemara 78b "ve-khen
le-inyan kiddushin" until "ve-yatza ve-hayta,” with Rashi, the Ramban and Tos.
Rid, and the rulings of the Rambam.)
6. Shtar Kiddushin in Ktav Yado
Another question which comes up with respect to the comparison between a
shtar kiddushin and a get is whether ktav yado is valid for a shtar kiddushin. The mishna in Gittin (86a) states
that a get which is hand-written by the husband, ktav yado, but has no witnesses
is valid according to the Torah.
Chazal stated that such a get is invalid and the woman may not remarry. However, if she does remarry the
children are not mamzerim (bastards).
The gemara does not explicitly discuss whether a shtar kiddushin which is
written by the husband but has no witnesses is valid. (This entire discussion assumes that
a shtar kiddushin is valid with eidei chatima.)
The Ritva in Kiddushin (9a) states that ktav yado is valid for a shtar
kiddushin just as it is valid for a get.
The Rashba in Yevamot (31b s.v. 'Ha De-amrinan') disagrees, and claims
that although ktav yado is valid for a get, it is not valid for a shtar
kiddushin.
There are several reasons that may explain why ktav yado is valid for
gittin. One possibility is that
since the Torah states "ve-khatav la," the husband should write for his wife a
"sefer keritut," the Torah explicitly allows ktav yado by gittin. If so, this may also be true of a
shtar kiddushin which is learned from get based on the limud "ve-yatza
ve-hayta". The Rashba claims that this
halakha is limited to gittin. This
is most easily understood if we accept Rav Lichtenstein's explanation that a get
is in essence a direct statement from the husband to the wife. Accordingly, it is certainly valid if
the husband himself writes it. A
shtar kiddushin, however, is parallel in this regard to every other shtar
kinyan, and requires witnesses.
It is, however, possible that ktav yado replaces the witnesses. A party to a case has the absolute
power to incriminate himself or weaken his case, as though witnesses testified
against him. This is based on the
rule "hoda'at ba'al din ke-me'a eidim dami,” the confession of the party
involved is equivalent to one hundred witnesses.
If a get is handwritten by the husband, there is no need to ask witnesses
to testify that the husband intended to divorce his wife and wrote the get. Thus, it is equivalent to a get which
is signed by two witnesses. The fact
that the get was handed over is based on the almost certain presumption ("anan
sahadei"), which serves instead of explicit testimony that the husband handed
over the get. This line of reasoning
should also be applicable to a shtar kiddushin.
The Rashba in Yevamot raises another possible distinction between gittin
and kiddushin. The basic point is
that whereas in kiddushin there is a formal requirement to have witnesses, for
gittin witnesses are only required to insure that the get was written at the
behest of the husband and given by him.
Thus, ktav yado can serve as proof that the husband wrote the get, but
cannot fulfill the formal requirement of having witnesses. This issue requires a discussion of
the source of the requirement for witnesses for kiddushin, and goes beyond the
scope of this shiur.
7. Le-da'at Ha-isha
The question of whether the shtar kiddushin must be written 'le-da'at
ha-isha' (the sugya on 9b) will not be treated here for lack of space. The issues which must be dealt with
are: A. whose da'at is required for shtarot in general, B. whose da'at should be
required for lishma, C. how is the general issue of da'at ha-mitchayev dealt
with by the shtar kiddushin (assuming that such a requirement exists), and D.
how lishma is created. The question
must be raised whether the sugya is discussing lishma or da'at ha-mitchayev.
8. Summary
We first discussed the nature of the kinyan by a shtar kiddushin - is it
a regular shtar kinyan, or a 'shtar issur.'
The Ramban and Ritva disagree whether the requirement of sefer keritut
applies to a shtar kiddushin or not.
We explained the requirement that a get be a 'sefer keritut' in two ways. Rav Lichtenstein (following the
Ramban) understood that a get must be the personal statement of the husband. We (following the Ritva) proposed
that the requirement of 'sefer' tells us that the get must be a written document
that tells the story of the divorce.
The nafka minot (ramifications) may include whether the names of the parties
involved must be included in the text, and whether or not the witnesses need be
present when the get is handed over.
We then discussed other laws regarding the use of shtar for kiddushin, the laws
of mechubar, issurei hana'a, and ktav yado, and explained their significance to
our understanding of kiddushei shtar.
Sources for next week's shiur:
1) Kiddushin 4b "U-ba'alah melamed ... u-ba'alah"
Kiddushin 9b "U-bevi'a ... ve-eino mefer nidreha mai"
Yerushalmi Kiddushin 1:1 "Amar R. Yudan kal va-chomer ... o be-vi'a"
Ketubot 74a "Amar lei bar bi rav ... le-hadadi"
Yevamot 15a "T"sh ma'aseh ... be-vi'a aza beineihu"
2) Yerushalmi Yevamot 14:1 mishna and gemara, until "... eino ma'aseh"
Ketubot 3a "U-mi ika mi-dei ...zenut"
Shitta Mekubetzet Ketubot 73b s.v. Od Katav "Ikka le-ukmei ... kiddushin
ba'il"
3) Sanhedrin 57b "T"r ish ... ein lahen"
Rambam Hilkhot Ishut 3:5
Tosefta Kiddushin 1:1
Questions:
1) From what pasuk does the gemara derive kiddushei bi'a on 4b? Which alternate pasuk is offered on
9b? What is the difference between
those two pesukim?
2) What does the inability to perform kiddushei bi'a with a t'nai
indicate (for further research see Chiddushei R. Chayim al ha-Rambam in Hilkhot
Yibbum ve-Chalitza)?
3) Why might a katan be able to perform kiddushei bi'a and not kesef or
shtar?
4) Must the husband recite "harei at mekudeshet" when performing
kiddushei bi'a?
5) Why does the gemara on 10a suggest that kiddushei bi'a achieves a
state of nissu'in as well?