GEMARA GITTIN 5772
This shiur is dedicated in
memory of Israel Koschitzky zt"l,
whose yahrzeit falls on the 19th of Kislev.
May the world-wide dissemination of Torah through the VBM
be a fitting tribute to a man whose lifetime achievements
exemplified the love of Eretz Yisrael and Torat Yisrael.
Shiur #06: Daf 19b
Contracts prepared in Gentile Courts
The Mishna in Gittin (10b) validates documents which
were written, processed and presumably signed in Gentile courts. The Mishna
employs the term "Shetarot ha-olot b'erka'aot shel Acum" to describe these
documents. Our shiur will attempt to provide the backdrop for this provocative
The Mishna cites two positions regarding the scope of this allowance.
According to Rebbi Shimon ALL documents - including gittin which were issued
through civil courts can be considered halakhically viable. The thought of a
'get' with Gentile signatures troubles the gemara when it asks "ve-ha lav bnei
kritut." Somehow the gemara recognizes the inability of Gentile witnesses to
participate in the signature of a 'get.' Rashi claims that the gemara makes
specific reference to the disqualification known as 'eino be-torat Gittin
ve-kiddushin.' Basing himself upon a gemara in Gittin (23b), (which will be
addressed in a later shiur) Rashi rules that an individual who doesn't enjoy or
participate in the halakhic process of Gittin, cannot perform the role of
witness on a 'get.' Rashi intuits an actual derasha to supply this rule: kol
she-yeshno be-netina yeshno be-khetiva - only one who can execute a delivery of
a 'get' can participate in its composition. As a Gentile has no relevance to the
halakhic process of Gittin, his signature is meaningless. According to Rashi the
gemara's challenge is based upon a parochial and unique concern about the
viability of an outsider to the world of Gittin to serve as a witness.
The Ramban argues with Rashi and claims that the gemara's question was of
a broader nature. Not only does a Gentile exhibit a specific disqualification as
an outsider to the world of gittin, but he also may not adhere to the necessary
halakhic requirements. Possibly the 'get' was written while the paper was still
mechubar (attached to the ground, which the gemara invalidates on (21b)), or
possibly the 'get' wasn't signed lishma. We cannot embrace this document because
we suspect that the complicated laws governing the manufacture of a 'get' were
Whether the gemara was posing the narrow challenge of Rashi or the more
general concern of the Ramban, the gemara's response in unequivocal: Rebbi
Shimon supports Rebbi Elazar's view that eidei mesira karti. Though the
witnesses who view the delivery are crucial, there is no necessity to actually
sign the document. Even though Gentiles signed, as long as the 'get' will be
delivered in the presence of Jewish witnesses no problems will entail.
Presumably, these Jewish witnesses at the point of delivery will also inquire as
to the terms of the 'get's composition. In sum, Rebbi Shimon's liberal position
to validate ALL documents processed by Gentile courts is given support by his
adoption of Rebbi Elazar's view regarding the insignificance of signatories and
the indispensability of witnesses at the point of issue.
A more nuanced discussion surrounds the more limiting approach of the
Tanna Kamma. He is much more conservative regarding which documents can be
accepted. He appears to validate general documents of this kind while excluding
a 'get' written in a Gentile court.
The gemara ponders this distinction - with the assumption that the Tanna Kamma
might side with Rebbi Meir. The gemara is not prepared to surrender the Tanna
Kamma's position to Rebbi Elazar and hence questions the viability of these
documents. It asks, how can we allow such a document to effect halakhic
realities (such as the transfer of land). The gemara is comfortable allowing
these documents to serve as evidence (shetar ra'ayah) since they merely indicate
that an independent halakhic process was executed allowing for the legitimate
transfer. Gentile courts maintain enough integrity to earn our trust as to the
veracity of the events which their documents affirm. However, could we actually
grant these documents the halakhic authority to actually EFFECT a halakhic
The gemara supplies two responses. The latter response concedes the
issue; indeed, the Tanna Kamma never intended a broad validation of these
documents. Such shetarot can only be utilized as evidence and not in a proactive
manner to instigate a halakhic process. When the Tanna Kamma wrote that "all
Gentile documents are valid except for gittin," he really meant "except for
documents which initiate halakhic changes in the manner that a 'get' does." A
shetar kinyan written in a Gentile court has no validity. We can however accept
as evidence the events which the document chronicles.
The gemara's first response attempts to justify the use of these
documents even as shetarei kinyan. The gemara cites Shmuel's rule known as dina
de-malkhuta dina (local Gentiles laws are halakhically binding to Jews) to
justify the employment of Gentile documents. This appears to be a novel
application of the dina de-malkhuta dina rule.
There is some debate within the Rishonim as to whether the gemara is
unanimous in applying dina de-malkhuta dina to validate Gentile documents. The
Rashba claims that in effect both answers of the gemara theoretically endorsed
the dina de-malkhuta dina rule in validating Gentile documents. The second
response of the gemara merely sought an alternative method of translating the
Tanna Kamma's position. The Rambam, however, believes that the applicability of
dina de-malkhuta dina with regard to Gentile documents was itself the subject of
disagreement between the two responses of the gemara. In Hilkhot Malveh Ve-loveh
(27:1), the Rambam only validates shetarei ra'ayah (documents as evidence). This
stance reveals that the Rambam viewed the two responses as debating the
viability of Gentile shetarei kinyan and their validity through applying the
dina de-malkhuta dina rule. By siding with the second approach, the Rambam
denies the validity of Gentile shetarei kinyan.
Why should we question or even reject Shmuel's position? Why might the
second response of the gemara disagree with applying dina de-malkhuta dina to
documents written in Gentile courts? Possibly the debate surrounded the nature
of the rule of dina de-malkhuta dina and its relevance to Gentile documents.
To study the nature of the dina de-malkhuta dina halakha we will attempt
to trace its root. The gemara in Bava Kamma (113) acknowledges that a king can
collect taxes in order to builds roads and bridges which we benefit from.
Theoretically, using this infrastructure may pose a problem, for we might be
using other people's money (collected in the taxes) without their permission. If
we accept the king's authority (and pay our own taxes) we can utilize these
public works without 'taking' other people's assets. We recognize his authority
to collect polls and channel these funds to public projects. The Rashba in
Nedarim stretches this concept even further. As the king is the landowner of the
country in which we live, he can - in theory - evict us from our houses. By
acceding to his laws and paying his taxes we earn the right and secure his
approval to continue living in our residences. Both the gemara and the Rashba
provide a very distinct socio-economic situation which empowers the king to
collect our moneys.
Several commentators suggest a broader legal definition to dina
de-malkhuta dina. For example, the Mabit in his Kiryat Sefer (Hilkhot gezeila
perek 5) asserts that from a formal standpoint any king has sweeping authority.
He bases this shita upon the section dealing with monarchal rights in sefer
Shmuel. Each license which Shmuel iterated actually reflects a formal halakhic
authority with which every king - Jew and Gentile alike is invested. The Chatama
Sofer in a similar vein (in responsa 208) attempts to derive this notion from a
pasuk in Shir Hashirim "Ha-elef lekha shlomo.' A king is not merely empowered to
collect funds and facilitate public welfare through these funds, but he is also
given political power which enjoys halakhic authority.
It would appear that these two stances provide very different pictures of
dina de-malkhuta dina and provide different scopes for the application of the
rule. According to the former view, the king's authority doesn't extend beyond
the collection of moneys or possibly broader rules affecting civil cases. As the
king is the architect of our municipal surroundings he dictates the flow of
money and we - in order to benefit from his spending projects - must submit to
that policy. Not only can he collect taxes but he can enforce laws which govern
commerce, trade and civil matters. However, beyond these issues a king doesn't
enjoy any formal halakhic status. There is no reason to validate a document
which happened to be written in his courts. We pay his taxes but do not impute
any halakhic substance to his processing of shetarot.
According to the Mabit and Chatam Sofer, however, a king is invested with
broad halakhic authority which he expresses through taxation and general
economic laws. Halakha recognizes his edicts and would presumably validate
contracts written in his courts. It is quite possible that the debate between
the two responses of the gemara as to the applicability of dina de-malkhuta dina
to documents issued in Gentile courts surround this fundamental issue of how to
understand the nature of dina de-malkhuta dina.
In his discussion of our sugya, the Rashba cites an intriguing claim by
Rabenu Yona which provides a slightly different strategy for validating these
documents. Aside from the legal status of dina de-malkhuta dina, these shetarot
should be valid based upon the situmta phenomenon. The gemara in Bava Metzia
develops the concept of situmta - symbolic acts which society develops to
demonstrate the finality of a sale. Wine sellers would regularly carve some
symbol on the barrel of wine to indicate the closure of a particular deal. Even
though these subjective acts are not mentioned in the Torah, they can be
employed to effect a halakhic transfer because of their widespread acceptance.
Rabenu Yonah claims that even without a formal acceptance of dina de-malkhuta
dina for shetarot, we might validate these documents because it has become so
commonplace to operate with Gentile supervised documents.
The Rabenu Yonah's claim can be debated along many fronts. For one, we
might consider the level of validity which commonplace conventions enjoy within
Halakha. Do they operate based upon some Biblical license which preprograms a
recognition of future practices which were apt to emerge? Or do we grant these
systems Rabbinic validity which might suffice for the purposes of transactions
but not necessary to help compose a shetar. The Devar Avraham in the first
chapter of the first volume of his sefer addresses this question.
We might also ponder a different issue which Rabenu Yonah takes for
granted. Just because social convention and acceptance can grant ceremonial
meaning to an accepted practice, doesn't necessarily mean the same is true of
customs legislated by Gentile judicial systems. In theory, we might grant
validity to that which Jewish society at large has embraced without necessarily
ratifying the decisions of a foreign court.
A second question surrounding the status of documents prepared in foreign
courts pertains to its consequent status.
Even if we license these documents how closely do they resemble classic
halakhic documents. The most acute expression of this question surrounds the
degree of halakhic fidelity which must be maintained when drafting these
documents. Several sections in shas
detail the techniques and textual protocols of halakhic shetarot. Various
syntactical and structural guidelines govern the form and substance of the
actual text. Must these guidelines be adhered to when composing a document in a
The Sefer Ha-terumot in Sha'ar 67 cites in the name of the Ramban that
all the technical governances of classic shetarot appertain to these documents
as well. By contrast, the Rivash cites a dissenting opinion and the Maharik in
shoresh 187 discusses the matter as well.
Even if we validate Gentile documents through the broad and sweeping
authority of dina de-malkhuta dina, do we render these contracts as classic
halakhic documents or do we reserve a separate status since they were not
composed or signed by Jews? Rav Chayim in his commentary to the Rambam in
Geirushin (6:9) elaborates this point.
Two additional practical ramifications of this question might be posed.
In general, a creditor can only appropriate lands which his debtor sold if the
loan was enacted through a contract - milveh be-shetar goveh mi-nechasim
meshubadim. Would a Gentile contract
allow collection of these assets? The simple reading of Gittin (19b) suggests a
full-blown halakhic status to these documents even to the point of allowing this
form of collection. By contrast, the gemara in Gittin (11a) curtailed collection
and limited it only to assets still retained by the actual debtor. Reconciling
these disparate views lies beyond the context of this shiur. Clearly though part
of this debate surrounds the status of a Gentile document 'cleared' through the
principal of dinah d'malchuta.
A final question might influence the determination of which types of
'bodies' in the Gentile system are capable of issuing a document with halakhic
validity. The gemara (Gittin 11a) relates the episode of Ravinah who wanted to
utilize a document processed in Gentile institutions. Radrum corrected him that
the mishna's dispensation only applies to formal courts (as opposed to alternate
legal settings). Whether this insistence is based upon practical concerns that
non-judicial settings might allow fraudulence or whether the gemara adopts a
formal insistence upon actual counts is the subject of much debate amongst the
Rishonim. See specially the Mordechai to Gittin siman 325 who cites several
If dina de-malkhuta dina actually renders a formal
shetar it would be reasonable to limit the potential sources of that shetar to a
king or his representatives. If however dina de-malkhuta creates a sub-shetar
form of evidence we might recognize and grant this status to documents which
emanate from alternate responsible and honest sources.
Mekorot for Shiur #7:
Reading a Get to Illiterate Witnesses
1) Gittin 19b, "Tanya kavatei ... shalchuha"
Ramban s.v. Ha de-ka'aru
Rashba s.v. Ve-she'ein
Tosafot Ha-Rosh s.v. Ve-im
2) Gittin 9b, "De-tanya ... lahem"
Tosafot s.v. Korin
Ramban 29b s.v. Ha de-amar, "Ve-im tishal ... ve-chotmin"
3) Rambam Malveh Ve-loveh 24:5-7; Gerushin 1:23 with Maggid
1) How do the Chakhmei Sefarad solve the problem of "eid
2) How might Tosafot Ha-Rosh offer a different solution?
3) What is the relationship between Tosafot on 9b and the
Ramban on 29b?
4) How might we explain the Rambam's condition that we can
only read the document to witnesses who "understand the language of the