Eidei Mesira or Eidei Chatima:The Machloket between Rabbi Mei'ir and Rabbi Elazar,Part Three
GEMARA GITTIN 5772
By Rav Moshe Taragin
Shiur #19: Eidei Mesira or Eidei Chatima:
The Machloket between Rabbi Mei'ir and Rabbi Elazar,
Having examined the role which signatories play according to Rabbi Mei'ir and the manner in which Rabbi Elazar compensates for their absence, we must now inspect the second dimension of this machloket: the insistence of Rabbi Elazar upon eidei mesira. Even though a shtar can be validly constructed even without eidei chatima (as established in the previous two shiurim), why should it be necessary for witnesses to attend the delivery of the shtar?
Before proceeding, we must delimit our discussion based upon different stances taken by the Rishonim. The Rif reads Rabbi Elazar in a manner which makes this entire discussion moot; according to the Rif, Rabbi Elazar does not require eidei mesira and allows a shtar to be validated with eidei chatima alone. Rabbi Elazar's dispute with Rabbi Mei'ir relates only to a document without eidei chatima but with witnesses to its delivery. Rabbi Mei'ir insists upon eidei chatima, whereas Rabbi Elazar allows EITHER eidei mesira OR eidei chatima and would therefore allow a document without eidei chatima. Rabbi Elazar's statement that "eidei mesira kartei" should be read "AF eidei mesira kartei" — "EVEN eidei mesira alone" would suffice. Hence, according to the Rif, there is nothing unique about eidei mesira. According to Rabbi Elazar a shtar would be valid as long as SOME eidim are involved.
The Ba'al Ha-ma'or, though, argues and understands Rabbi Elazar in the literal manner: only a document processed with eidei mesira would be valid. The same notion emerges from the Rambam (Hilkhot Geirushin 1:15-16), who rules like Rabbi Elazar and demands eidei mesira le-khatchila. Be-di'avad, the Rambam admits that Rabbi Elazar would allow a shtar without eidei mesira but with eidei chatima. However, optimally eidei mesira are necessary, even if eidei chatima actually sign the document. According to the Ba'al Ha-ma'or, who claims that only eidei mesira are valid, and according to the Rambam, who claims that "ideally" eidei mesira should be provided, our question remains: according to Rabbi Elazar, what is the advantage of eidei mesira beyond eidei chatima?
One approach is to base Rabbi Elazar's demand upon a peculiar condition surrounding a shtar. The Rif in Yevamot, commenting upon the ability to issue a shtar and avoid the general disqualification of written testimony ("mi-pi ktavam"), states that indeed, before the shtar has been issued, it suffers the status of invalid written testimony. Once, however, the shtar has been delivered to the intended party (the purchaser, the creditor or the woman), it transforms from written testimony into an independent and valid halakhic entity known as a "document." By issuing and delivering the document, the author exempts the document from the mi-pi ktavam disqualification; by agreeing to deposit such a compelling form of evidence in the hands of his legal adversary, he effectively waives the concern of mi-pi ktavam. How this feat is performed and why a shtar does not suffer the mi-pi ktavam flaw is a topic too large to address in the context of this shiur. However, the "point of delivery" is the very moment at which a paper attains the status of shtar and supersedes the limitations (and invalidity) of written testimony. Therefore, Rabbi Elazar might maintain that placing eidim at the point of delivery is more meaningful than appending their signatures to the actual shtar. As a document prior to its issue does not enjoy the full status of shtar, any eidim which sign that document cannot effectively participate in the establishment of a shtar. Though they remain external to the actual document, eidim who witness the delivery are authenticating the shtar at the very moment it achieves its full status.
Rabbi Elazar and Rabbi Mei'ir might be debating the function which delivery of a document plays. In general (see shiur #14, #15), the delivery plays little function in the actual halakhic TRANSACTION. We demonstrated that a "get" might be unique and that the personal and physical transfer of the legal document chronicling the separation of husband and wife might be indispensable in terminating their interpersonal relationship. However, only at the point of its delivery does a document attain the full status of shtar, and at that point eidim are necessary. Rabbi Mei'ir would obviously deny this principle and recognize the identity of shtar well before its physical delivery.
A different view emerges from an important distinction made by Tosafot (Gittin 4a, s.v. Ve-Rabbi Elazar). Tosafot claim that Rabbi Elazar demands eidei mesira specifically in the case of get but not necessarily in the case of regular shtarot. Evidently, Tosafot assume that Rabbi Elazar's requirement of eidei mesira is based on parochial gittin considerations and not universal shtar factors. A similar stance undoubtedly serves as the foundation for Rav's claim (Gittin 86b) that we accept Rabbi Elazar's view in the case of get but reject it in the case of a regular shtar. Rav is not explaining Rabbi Elazar's thinking but rather our own halakhic ruling; nevertheless, he exhibits a similar pattern as Tosafot: eidei mesira serve a specific role for get and are not required for regular shtarot.
The most obvious role to assign the eidei mesira is the function of eidei kiyum. Every "davar she-be'erva" (marital-status issue) requires two witnesses attending the ceremony. As the principal ceremony of get is the netina (delivery), Rabbi Elazar demands the presence of two witnesses to validate the ceremony. Rashi (22b, s.v. Ve-Rabbi Elazar) appears to offer this explanation for Rabbi Elazar's view. Again, it must be reiterated that explaining eidei mesira based upon the need for eidei kiyum would almost certainly limit Rabbi Elazar's position to gittin. Though Tosafot stake this claim, it is clear that many, if not most, of the Rishonim perceive Rabbi Elazar's as a universal position requiring eidei mesira for all shtarot - presumably based upon the identity of a shtar emerging only at the point of its delivery.
RABBI MEI'IR'S RESPONSE TO EIDEI KIYUM
Having raised the specter of eidei kiyum and the fulfillment of this function by the eidei mesira, we must examine Rabbi Mei'ir's response. Even if the eidei mesira of Rabbi Elazar are not demanded specifically as eidei kiyum (but for some other universal shtar purpose) they can clearly accomplish that role, as well. How would this seemingly irreplaceable function be served in the absence of eidei mesira according to Rabbi Mei'ir?
Three responses can be suggested:
I. Tosafot (Gittin 4a, s.v. Ve-Rabbi) articulate a spectacular claim: even Rabbi Mei'ir would require actual eidei mesira witnessing the delivery; his dispute with Rabbi Elazar revolves around the need for eidei chatima to create a legitimate document. The ISSUING of that document to enact geirushin, however, must obviously occur within sight of two eidei kiyum - namely eidei mesira. According to Tosafot, Rabbi Mei'ir requires each type of witness: eidei chatima to manufacture the get and eidei mesira to validate its delivery.
II. Must eidei kiyum be actual witnesses standing and watching the delivery of a get? The Ran presents an important idea in his attempt to explain Rabbi Elazar. As stated earlier, the Rif understands that Rabbi Elazar allows EITHER eidei mesira OR eidei chatima. The Ran assumes that Rabbi Elazar does not allow two different, alternate tracks. Rather, he sees the two forms of eidut as accomplishing the same end. According to Rabbi Elazar, PROOF about the delivery of a get is required for the geirushin to be valid. Rabbi Elazar admits that this verification can be supplied by witnesses who actually view the netina and can attest thereto. Alternatively, if a signed get is produced in court by the woman, we have ample proof that this document was truly issued by the husband (given the unlikelihood of forgery). Rabbi Elazar allows eidei chatima (without eidei mesira) to serve as testimony to a valid netina.
A similar logic might operate according to Rabbi Mei'ir (according to the explanation of the Ba'al Ha-ma'or and the Rambam that Rabbi Elazar does not allow eidei chatima but requires specifically eidei mesira). Rabbi Meir might agree that eidei kiyum are necessary to validate the delivery of the get. However, the witnesses can be 'supplied' in the form of a signed document which IMPLIES authentic delivery. This notion of implied delivery forms the subject matter of an important debate between the Ketzot (in his commentary, Avnei Milu'im 31:4) and Rav Chayim (Chiddushei Rabbeinu Chayim Ha-levi al Ha-Rambam, Geirushin 3:15).
III. A third approach to explain Rabbi Mei'ir's position would be to reassess the relative importance of netina. Indeed, real, live witnesses are required to serve as eidei kiyum during the ceremony of get; Rabbi Mei'ir argues with Rabbi Elazar regarding which ceremony is really the crucial stage of the entire process. Rabbi Elazar's position is premised upon viewing the delivery of the get as the essential stage of the divorce process. After all, that is when the actual legal release concludes; "eidei mesira KARTEI" suggests a statement about the mesira itself. By contrast, Rabbi Mei'ir might claim that the divorce basically occurs when the document is signed- "CHATIMA KARTEI" - on the condition that this signed bill is ultimately delivered to the woman. By affixing signatures to the actual document, Rabbi Mei'ir assures that actual witnesses will attend the crucial moment of the divorce: the signing.
Aside from his response to Rabbi Mei'ir's demand for eidei chatima, Rabbi Elazar asserts his own requirement — eidei mesira. The Rif reads Rabbi Elazar slightly differently: either eidei mesira or eidei chatima alone suffice. According to the Rambam and the Ba'al Ha-ma'or, however, Rabbi Elazar's insistence upon eidei mesira is absolute. Ostensibly, Rabbi Elazar prefers eidim at the point in which a document assumes its full legal status: the mesira.
Aside from this consideration, the positioning of eidei mesira serves the function of eidei kiyum: witnesses attending the ceremony of get. According to Tosafot, this might be Rabbi Elazar's ONLY basis for insisting upon eidei mesira. Even if we disagree with Tosafot, however, and ascribe a different function to eidei mesira, there is no question that they serve also as eidei kiyum. How would Rabbi Mei'ir fulfill the requirement of eidei kiyum? Three answers were posed:
1) Rabbi Mei'ir would admit that eidei mesira are also necessary;
2) The ability to prove the mesira suffices in the absence of actual witnesses;
3) Rabbi Mei'ir demands that the witnesses view the chatima, which ultimately is the more pivotal stage of the divorce process, instead of witnessing the mesira. This final debate about which stage of geirushin is most pivotal clearly echoes the issues which previous shiurim have established (see especially shiur #3, #16).
Sources and questions for the next shiur (#20):
The Requirement of Lishma in a Get's Composition
1) Gittin 26a, Mishna; 24a, Mishna
Gemara 24b, "…De-ein bereira"
2) Gittin 86b, Mishna; Gemara, "…ba'i"
3) Tosafot 19a, s.v. Deyo
4) Ramban 20a, s.v. Ha be'ina
5) Or Zarua 715 (quoting Rabbeinu Chayim)
1) What are the structural differences between deriving lishmah from the term "sefer keritut" or the phrase "ve-khatav lah"?
2) By extending lishma from ketiva to netina, what does Rav Yirmiya tell us about his view of lishma?
3) By demanding the inclusion of names in a get because of lishma, what does Rabbeinu Chayim (quoted by the Or Zarua) tell us?