The Dispute Concerning Eidei Chatima and Eidei Mesira
TALMUDIC METHODOLOGY
By Rav Moshe Taragin
Shiur #02: The Dispute Concerning
Eidei Chatima and Eidei Mesira
One of the most seminal disputes in
Shas concerns the production and issuance of a shetar. Of particular
importance is the makhloket regarding which witnesses are primary and
which are secondary (and probably optional/unnecessary). R. Meir claims that the
actual signatories of the document are critical (eidei chatima karti),
whereas R. Eliezer claims that the witnesses who attend the delivery of the
shetar are more significant (eidei mesira karti). This series of
several shiurim will suggest three very different approaches to
understanding this machloket.
Intuitively, R. Meir's position seems to
make sense. To produce a shetar, eidim must append their names to
the document eidei chatima karti. How can we logically explain R.
Eliezer's position?
Rashi (Gittin 23b) claims that the
eidei mesira are necessary according to R. Eliezer to validate the
geirushin or kiddushin process in other words, as eidei
kiyum. Monetary interactions may be performed in private, but divorce and
marriage must be performed in the presence of two witnesses. As the gemara
asserts "ein davar she-be-erva pachot mi-shnayim" changes to a
woman's marital status require two attending witnesses. Even if there is no
disagreement about the gittin or kiddushin, the PROCEDURE is
halakhically invalid in the absence of attending witnesses. Based on this formal
requirement, R. Eliezer demanded eidei mesira to witness the actual
delivery of a get or shetar kiddushin.
This approach raises two questions:
1)
Why would R. Eliezer require eidei mesira for monetary contracts?
A shetar kiddushin or get requires attending witnesses because of
the change in erva status; monetary contracts do not require eidei
kiyum, and should accordingly not demand eidei mesira!
2)
If R. Eliezer's edei mesira demand is based on something
so basic as the eidei kiyum requirement of gittin and
kiddushin, how could R. Meir NOT demand eidei mesira? Doesnt
R. Meir concede the eidei kiyum condition regarding a shetar
kiddushin or get?
In order to answer the first question, we must locate a logic that would
mandate eidei kiyum for monetary shetarot even though MOST
ORDINARY monetary transactions do not demand eidei kiyum. Perhaps
a precedent for this deviance lies in an interesting position of the Ra'avad
regarding the kinyan of chalipin.
The gemara in Bava Batra (40a) states that "chalipin
bifnei shnayim" a kinyan chalipin requires two
witnesses. Despite the simple meaning of this gemara, most
Rishonim (most prominently Rabbenu Tam in his comments to this gemara
and to Kiddushin 65b) claim that chalipin operates as typical
monetary transactions do, and therefore does not require eidei kiyum.
The Ra'avad (cited by the Shita Mekubezet to Bava Batra),
however, claims that kinyan chalipin is unlike other kinyanim
and DOES require eidei kiyum to be viable. The Ra'avad explains
the need for eidei kiyum due to the arbitrary nature of kinyan
chalipin. Most acts of kinyan physically demonstrate the new
ownership (pulling an animal, repairing land). In contrast, delivering a
handkerchief to the seller does not demonstrate changed ba'alut per se;
it is an arbitrary act that consummates the kinyan. In R. Chaim's
terminology, it is a pure kinyan da'at a kinyan primarily
driven by common agreement that is conveyed by a physical action. Since the
primary force of the kinyan is the mutual agreement, it must be bolstered
by eidei kiyum. (How exactly eidei kiyum bolster the
kinyan da'at is itself an interesting question, but beyond the scope of
this shiur).
The Ra'avad's position about chalipin may serve as precedent for a
monetary transaction that nevertheless requires edei kiyum.
Perhaps R. Eliezer suggests a similar logic about kinyan shetar.
There are many models of understanding the mechanism of a shetar, HOW a
contract effectively transfers ownership. Perhaps R. Eliezer conceived of a
shetar in the same manner that the Ra'avad and R. Chayim conceived of a
kinyan chalipin the action per se has no significance or symbolism;
the transfer is accomplished purely through the agreed da'at or
gemirut da'at of the two parties. The purpose of the shetar is
merely to capture and demonstrate the common agreement, but the AGREEMENT ITSELF
is what facilitates the actual transfer. Accordingly, perhaps this kinyan
of pure gemirut da'at may require eidei kiyum in the
same fashion that chalipin requires eidei kiyum according
to the Ra'avad.
To summarize: The first manner to explain Rebbi Eliezer's insistence
upon eidei kiyum would be to associate eidei mesira
with eidei kiyum. All ishut-based transformations require
two attending witnesses and therefore Rebbi Eliezer required two eidei
mesira.
Of course this perspective raises the
second aforementioned question: how did Rebbi Meir respond and why didnt he
similarly require eidei mesira as eidei kiyum. Does
he not concede that erva "events" require eidei kiyum? This question will be addressed
Iy"H in the ensuing shiur.