Shiur #09 Shalish: The Authority of a Legal Custodian to Testify about the Contents of a Shtar
Talmudic Methodology
Yeshivat Har Etzion
Shiur
#09
Shalish: The Authority of a Legal
Custodian to Testify about the Contents of a
Shtar
By Rav
Moshe Taragin
The gemara considers the interesting situation of a shalish,
someone who safeguards a document on behalf of the interested parties. Several gemarot suggest that he is
authorized to testify to the document's nature. This shiur will explore the
nature of his authority.
The gemara on Gittin 64a describes a machloket regarding a dispute
between a husband and a shalish.
The former claims that his get was delivered for safekeeping and his wife
is not divorced. The shalish
disputes the claim, insisting that he is a shaliach of the woman and her
divorce was final immediately upon his receipt of the get from the
husband. Though Rav Huna asserts
that the husband is believed (and the woman remains married), Rav Chisda
disagrees, claiming that we trust the claim of the shalish. Why should this custodian be believed in
legal disputes? What "mechanism"
underwrites his authority?
Facing the dilemma of Rav Chisda's position, Tosafot adopt a radical
reading: in fact, the shalish is not trusted! However, by delivering a document to him,
the husband waives the right to determine the implementation of a
get. It is as if the husband
- by depositing the get - stipulates that the validity of this get
rests solely upon the discretion of the shalish. If the latter declares that the
husband's intent was to deliver a valid get, the divorce is valid and
binding. Even if the shalish
were to lie, as long as he asserts the husband's original intent to divorce, the
get is valid.
Tosafot strips the shalish of any inherent 'believability;' we do
not inherently trust him more than the husband. The husband delivers a get and
conditions its validity upon the 'wishes' – capricious as they may be – of the
shalish. This reading,
though radical, DOES stem from an interesting sequence in the gemara. Suggesting that Rav Huna would agree
that a shalish is believed for monetary contracts, the Gemara explains
that since money can be waived (a process known as mechila), a
shalish is believed, even according to Rav Huna. He only disagrees with Rav Chisda about
contracts concerning issurim, in which mechila is less
operative. It appears that a
shalish's unanimous capability for monetary contracts stems from the
author of the shtar's ability to "work around" the question of
believability through the operation of mechila. By depositing a shtar in the
hands of a custodian, the owner agrees to relinquish his claim if the
shalish claims it was already paid.
Since money can be easily waived through the mechanism of mechila,
a shalish is believed according to everyone, in monetary
contracts.
Presumably, this gemara provides the basis for Tosafot's position
regarding Rav Chisda; Rav Chisda merely extends this circumvention to
issurim. Even though an
"issur" status cannot be unilaterally determined (unlike monies which can be
unilaterally waived), the same condition can be affected by the stipulation of a
tenai. By delivering the
get, the husband, in effect, stipulates or conditions the get's
validity upon the shalish's discretion.
This approach to Rav Chisda is both logically and textually
strained. The gemara itself claims
that according to Rav Chisda the shalish is ne'eman (believed),
whereas according to the approach of Tosafot he is not believed, but his
'opinion' is implemented or upheld.
However, the very fact that Tosafot adopt this stance indicates how
challenging Rav Chisda's position truly is.
Rashi takes a more conventional approach toward explaining the
believability of the shalish.
Since he possesses the shtar, he can deliver the get to the
woman and effect the divorce at any stage.
Since he possesses this capability, he is BELIEVED to claim that the
husband delivered the get with intent to divorce. Based upon the classic mechanism of
migu, litigants are BELIEVED to lodge a claim when they could have
accomplished the equivalent goal through some other alternative means. In this instance, we trust that the
shalish is not lying; had he wanted to effect the delivery of the
get, he could have just delivered it personally. He is believed to CLAIM that the husband
originally delivered it to him with the intent to divorce his wife.
Though Rashi's position is more moderate than Tosafot's, it still raises
certain concerns. Foremost is the
fact that the gemara does not mention migu as the baseline for Rav
Chisda's position. Additionally, if
Rav Chisda's view is premised upon migu it would be difficult to
understand why Rav Huna argues; is not migu a universally accepted tool?
Finally, we could even question the
relevance of migu to our scenario, since the shalish may not have
the ability to execute the divorce; perhaps the woman will avoid him or take
other measures to prevent the current delivery of the get. This shalish may not be empowered
to personally deliver the get and therefore may not be reinforced in his claim
by any particular migu.
These questions force Tosafot to disagree with Rashi's reading and
suggest his own logic to understand Rav Chisda.
The Rashba raises a completely different option – one which may just be
the most literal reading of Rav Chisda.
By delivering the get to the guardianship of the shalish, the
owner upgrades his level of legal believability. Typically, Halakha affords default
levels of reliability. For example,
two witnesses have more believability than one witness or a litigant. Alternatively, the litigant possessing
the item is trusted in the absence of contravening evident ("ha-motzi
mei-chavero alav ha-re'aya").
These default levels, however, may be subject to personal
adjustments. For example, a
solicitor of a loan may award his creditor extraordinary levels of believability
to entice him toward the loan. By
empowering him more than his normal level, the potential debtor assures him of
simple future litigation and thereby encourages delivery of the loan. The easiest manner to accomplish this
adjustment is by writing a shtar which strips the debtor of his default
believability; he cannot claim that the loan was paid as long as the
shtar is extant.
The Rashba claims that a shalish enjoys one of these
'believability adjustments.'
Typically, one person would not be believed to claim that a divorce
occurred — "ein davar she-be'erva pachot mi-shenayim" — and certainly not
to contradict the author of the shtar, the husband. However, by depositing the shtar
in the possession of the shalish, the husband empowers the shalish
to be believed as if her were two eidim. In fact, in one of his responsa, the
Rashba asserts that a shalish is believed even if he is contradicted by
two eidim. The husband has
the capacity to reinforce the shalish's level of believability so that he
is more trusted than eidim.
This opinion is appealing on two levels: it does not exhibit the
'extremism' of Tosafot's approach, and it does not introduce a new factor which
does not appear in the gemara. This
position also strongly reflects the language employed by Rav Chisda to describe
the supremacy of the shalish: "since the ba'al trusts him." According to the Rashba, since the
husband trusts him, the shalish achieves a superior level of
believability.