Difference in Kiyum between Gittin and Monetary Contracts - Part 3 of a 5 Part Series

  • Rav Moshe Taragin


By Rav Moshe Taragin



This week’s shiurim are dedicated by Abe Mezrich



Shiur #04: Difference in Kiyum between Gittin and Monetary Contracts

Part 3 of a 5 Part Series


In the previous two shiurim, we analyzed the machloket between R. Eliezer and R. Meir as a debate about the nature of eidei kiyum. R. Eliezer requires eidei mesira so that actual witnesses attend the delivery of the get and provide the necessary kiyum. R. Meir, in contrast, does not require actual witnesses for the kiyum, accepting a signed document (eidei chatima) in place of kiyum; either a signed document indicates delivery (anan sahadi) or it actually testifies to the delivery (R. Chaim's claim). According to the Rif's view, even R. Eilezer allowed an eidei chatima-only option, presumably concurring that kiyum can be supplied even without actual witnesses attending.


This logic, explaining R. Eliezer’s requirement of eidei mesira as functioning as eidei kiyum, may have led to an interesting compromise. Most Amoraim (based on Rav's position stated in Gittin 66b) accepted R. Eliezer's requirement of eidei mesira for a get but allowed monetary contracts to be processed without eidei mesira. The simplest way to understand this “compromise” is to view the ENTIRE REQUIREMENT of eidei mesira as based upon the need for kiyum. If this is true, Rav claimed that gittin, as an example of a “davar she-be-erva,” require eidei kiyum or eidei mesira, while monetary contracts, which do not typically require eidei kiyum, do not require eidei mesira. Rav effectively rejected Rebbi Meir's allowance of a signed document in place of eidei kiyum.  However, kiyum is only necessary for a get and not for monetary activities.  Hence eidei mesira are only necessary for a get!


In fact, Rav's compromise is so self-evident that it challenges us to better understand R. Eliezer's position. Rav's distinction is so compelling that it raises a pressing question: If the entire eidei mesira requirement stems from the need for kiyum, why did R. Eliezer require eidei mesira for monetary shetarot, which don’t typically require kiyum? Two different approaches may solve this riddle and explain R. Eliezer's demand for kiyum or eidei mesira EVEN for monetary contracts.


First, he may have minimized the gap between monetary transactions and erva transformations. We typically assume that these are fundamentally different; the former may be performed in private and witnesses are only necessary if and when contentious litigation emerges. As the gemara in Kiddushin (65b) asserts dismissively, in monetary transactions, “lo ivrei sahadi ela le-shakrei,” witnesses are only necessary for liars (and not for the actual execution of the transaction). Erva transformations, in contrast, are more FORMAL and more CEREMONIOUS and require the presence of eidei kiyum to lend them credibility and, ultimately, effectiveness. If this is true, R. Eliezer's requirement of eidei mesira for kiyum purposes in monetary shetarot is indeed difficult to understand.


However, the gemara in Kiddushin (at least according to the simple reading and the one repeatedly endorsed by the Ketzot Ha-choshen) presents a very different picture about the difference between erva and monetary transactions. Firstly, the entire NEED for two eidei kiyum in cases of kiddushin and gittin is derived from a gezeira shava based upon the word “davar” appearing in the discussion of monetary transactions AS WELL AS within the discussion of erva. Second, the gemara itself questions why monetary transactions do not require eidei kiyum and provides what appears to be a technical answer – every monetary transaction contains an INHERENT form of kiyum known as hoda'at ba'al din. In monetary affairs, a self-incriminating confession is treated as actual testimony. Logically then, any monetary transaction affected without argument includes the confession of the two participants. Since this confession would be acceptable in court, no ACTUAL eidim are necessary.  Confessions are only halakhically acceptable, however, if they self-incriminate WITHOUT negatively affecting others (chav le-achrini). In erva situations, these confessions are unacceptable, since they negatively affect others; the outcome of kiddushin prevents others from marrying this woman and the outcome of geirushin prevents a kohen form marrying this newly developed gerusha. Thus, the inherent hoda'at ba'al din in unacceptable and actual eidim are required for eidei kiyum purposes. In monetary situations the inherent assumed confession plays the role of eidei kiyum.


This gemara effectively portrays monetary and erva events in very similar terms. They each REQUIRE kiyum, but monetary transactions enjoy built-in kiyum in the form of hoda’at ba’al din. Since erva does not, we must demand actual eidim. If this reading is accurate, it is entirely conceivable to require eidei kiyum for monetary transactions in which the built-in confession is not admissible.


Perhaps this is how R. Eliezer views the case of shetar. Unlike typical monetary transactions, the issuance of a shetar is a PUBLIC event with very PUBLIC ramifications. For example, the issue of a shetar for a loan may ultimately lead to appropriation of lands from those who purchased from the debtor. The very presence of a shetar TRANSFORMS the monetary event into a PUBLIC or SHARED event. Perhaps R. Eliezer argues that even though a shetar does not always NEGATIVELY IMPACT third parties, it DOES create a public nature to the transaction, rendering the hoda'at ba'al din of the two litigants unacceptable. At this stage, the confession is not admissible, and ACTUAL eidei kiyum – in the form of eidei mesira – are necessary. Though this is an unconventional reading of the eidei kiyum requirement, it is certainly the more literal reading of Kiddushin, and one which R. Eliezer may have adopted, in requiring eidei mesira as eidei kiyum for a shetar.


Alternatively, R. Eliezer’s opinion may have been premised upon a different notion. Perhaps he required eidei kiyum for monetary contracts as an EXCEPTIONAL situation. In fact, there may be precedent for exceptions in which a monetary case requires eidei kiyum, as in a case of erva. The gemara in Bava Batra (40a) asserts that kinyan chalipin must be performed in the presence of two eidim. Rabbenu Tam (both in his comments to that gemara and to the gemara in Kiddushin) flatly rejects this notion, since monetary transactions cannot possibly require kiyum. However, the Ra'avad (in his comments to Bava Batra quoted by the Shitta Mekubezet) takes the gemara at face value. Chalipin is unique in that it effects both land and metaltilin transactions; typically, acts of kinyan that affect one cannot affect the other, since the terms of ownership are so different. Pulling an animal displays new ownership but is obviously irrelevant to land; building a fence displays ownership of land but has no impact upon an animal. Chalipin is a kinyan without any meaningful act. Transferring a handkerchief (and then retrieving it) hardly demonstrates ownership!


R. Chaim famously elaborated upon chalipin (based largely upon this gemara and the Ra'avad's position), claiming that it merely signifies COMMON AGREEMENT (gemirat da'at) and is an arbitrary method of signifying that agreement. Ultimately the AGREEMENT itself transfers the item. Ironically, it is the lack of demonstrative nature of chalipin that grants it such versatility. It is precisely for this reason that chalipin is so versatile. Land-actions are irrelevant to portable items. A kinyan based on common agreement can work on any item.


However, since chalipin is a kinyan da'at (an act merely demonstrating agreement), presumably a HIGHER level of da'at is necessary. Regular kinyanim, which do demonstrate new ownership, require a base level of da'at, since the kinyan is primarily affected through the demonstrative action, but the pure kinyan da'at of chalipin requires a more halakhically significant level of da'at.


One consequence of this required higher level might be the need for eidei kiyum. Perhaps the function of eidei kiyum is to ensure the seriousness of the parties. Monetary transactions generally do not require this attendance, while erva transformations do. Chalipin is unique in requiring eidei kiyum because although it is a monetary process, it requires levels of da'at equivalent to erva events.


Using chalipin as a precedent may help explain R. Eliezer's demand for eidei mesira EVEN in the context of monetary shetarot. As we noted above, logically, Rav makes a compelling point: if the entire eidei mesira requirement is meant to provide eidei kiyum, why should monetary shetarot require eidei mesira, which are only required for erva contracts? Perhaps R. Eliezer likened the process of a shetar to chalipin. Why should the delivery of a shetar successfully transfer a parcel of land? Perhaps it merely demonstrates common agreement, which affects the land transfer. If shetar is viewed this way, that it works by signifying common agreement, it may indeed require the higher level of da'at required by some for chalipin and it may thus require attending eidei kiyum to ensure that da'at. Therefore, Rebbi Eliezer required eidei kiyum or eidei mesira even for monetary shetarot.