The Israel Koschitzky Virtual Beit
Yeshivat Har Etzion
"Arev" in Kiddushin
The gemara (Kiddushin 6b) states that marriage can be effected by giving
money to a recipient other than the woman.
Just as the arev (the guarantor of a loan) obligates himself to the lender because of money given, at
his behest, to the borrower, so too the woman obligates herself to the groom by
dint of him giving money to a third party of her designation. In the case of the arev for a loan, the
result is a monetary shi'abud (obligation); in our case, the result of the
transaction is kiddushin. In this
shiur we will address the question of how, and in what sense, does the gemara
equate arevut in kiddushin with arevut in a loan?
Arevut - Da'at or Ma'aseh
The sugya in Bava Batra (173b) quotes the underlying principle of arevut
in a loan, in the name of Rav Ashi: "In lieu of the satisfaction ("be-hahu
hana'a") which the arev receives from the fact that the lender trusts him, he
decides to willingly obligate himself."
This statement requires clarification - precisely what is Rav Ashi trying
to explain? For two questions must
be asked regarding arevut:
1. What is the basis for
assuming that the arev has the requisite "gemirut da'at" (intention) to create
2. What is the legal mechanism,
the "ma'aseh kinyan" (act of acquisition), by which the obligation is
It would appear that Rav Ashi was concerned only with the problem of
da'at (intention). This is borne
out by the question to which Rav Ashi is responding, namely, why isn't arevut
invalidated on account of it being an "asmakhta?" (Asmakhta is a term used for equivocal
commitment, where there is a problem with the intent of the one obligating
himself. Here, the guarantor's
obligation is conditional on the default of the borrower, and because he doesn't
really believe that this will happen, his commitment is lacking in
seriousness.) Also, Rav Ashi's
language is certainly da'at-oriented ("gamar u-mesha'abed" - he decides to
willingly obligate himself). In
fact, one could argue that Rav Ashi must be dealing only with the question of
da'at, because in the case of the guarantor of a loan, a ma'aseh kinyan is
superfluous. This may be because a
shi'abud is sometimes created via da'at alone, or because the obligation of the
guarantor is automatically subsumed under the rubric of the transaction as a
whole, i.e. the loan.
But if arevut does not require a kinyan-mechanism in the case of a loan,
it is difficult to see how arevut could be applicable to kiddushin, where a
ma'aseh is indispensable. Likewise,
if Rav Ashi is indeed reassuring us only as to the serious intent of the
guarantor, his statement would appear to be irrelevant to kiddushin. For since the woman's undertaking is
unconditional, and she is fully married as soon as the third party receives the
money from the groom, there is no problem of "asmakhta." On the other hand, the definition of
arevut as a ma'aseh kinyan of kiddushei kesef (marriage by money) is certainly
problematic, and on this point Rav Ashi's statement does not seem to be very
helpful. We are therefore compelled
to consult the Rishonim in order to identify the mechanism which creates arevut
in a loan, a mechanism which hopefully would apply to kiddushin as
The Mechanism of
We will discuss two approaches of the Rishonim on this issue. Rabbenu Chananel (Otzar Ha-geonim on
Kiddushin) writes that the arev is considered "as though he received the money
in his own hands." This is also the
approach of Tosafot (Bava Metzia 71b s.v. Mitzao). According to them, the guarantor is
obligated because it is as though the loan had been given to him. Likewise, when the woman is married
because the groom gives the money to a third party, it is considered as though
the money had been given to her, and therefore it may be seen as kesef
kiddushin. We should, however, be
aware of the logical problem inherent in this theory. Since a loan by definition is a vehicle
of shi'abud (that causes monetary obligation,) we may be amenable to the view
that it incurs an obligation, not only upon its actual recipient, the borrower,
but also on its theoretical one - the guarantor. It is quite another thing to say, as R.
Chananel postulates regarding kiddushin, that the same money functions in two
totally different ways: to its actual recipient it is a gift, but to the woman
it is kesef kiddushin that imposes upon her to accept new
The Rashba and Ritva in Kiddushin have a different explanation. Surprisingly, they apparently thought
that Rav Ashi's statement not only solves the problem of da'at in arevut on a
loan, but also furnishes us with an explanation of the mechanism through which
the obligation is created. The
"satisfaction" received of having money disbursed according to one's whim, is
just like the actual money one receives in standard kinyan kesef, and is a
suitable vehicle of acquisition both for commercial obligations and for
kiddushin. Unlike Rabbenu Chananel,
the Rashba thinks that kesef has been given directly to the woman herself in the
form of hana'a (benefit). The
Rashba's solution, then, is based on this principle, which he derives from
arevut in a loan and applies to kiddushin.
The creation of this ethereal satisfaction, is equated with the giving of
Although this theory of arevut according to the Rashba and Ritva is clear
enough, its derivation from the sugya is quite problematic. It is on this difficulty that we will
presently dwell, in the hope of gaining a better understanding of the principle
Rav Ashi's Principle According
to the Rashba
We have seen that the gemara in Bava Batra found fault with the
institution of arev, because it appears to be an asmakhta, and therefore the
kinyan lacks the gemirut da'at of the arev. Rav Ashi solves the problem with the
concept of "be-hahu hana'a," which creates the motivation needed for us to
assume da'at. Clearly, the nature
of the mechanism of arevut did not perturb Rav Ashi in the least, and if the
gemara hadn't raised the problem of da'at, he would have remained silent. Rav Ashi used "hahu hana'a" merely to
explain the arev's motivation. How
could the Rashba infer from here that arevut is a vehicle of kinyan as
Before suggesting an answer, let us note that Rav Ashi's assertion, that
the satisfaction of being trusted is enough to overcome asmakhta (if indeed this
is what he means), is really rather difficult. Any person who obligates himself
conditionally does so for a good reason, and presumably stands to profit from
it. Nevertheless, his is defined as
asmakhta. Why should an improvement
in social standing be the only incentive deemed strong enough to overcome
Perhaps this consideration convinced the Rashba that Rav Ashi means
something else. Rav Ashi aims to
solve the problem of da'at only indirectly: Rav Ashi establishes that the arev
obligates himself not through his own one-sided initiative, but through a quid
pro quo. Because he receives
benefit, he obligates himself. How
does this solve the problem of a lack in gemirut da'at? The Rashba may have felt that while
"asmakhta" is a fatal flaw in an obligation undertaken unilaterally, it is
harmless in a transaction which obligates someone in return for that which he
receives. (A similar guideline was
articulated by Rabbenu Tam (Tosafot Sanhedrin 25a).) A plausible explanation for this
distinction is that the required level of da'at makneh (intention of the seller)
is lower in a two-sided transaction than in an independent self-obligation. When you effect a unilateral
transaction, the requirements of your da'at should be stricter, because your
da'at alone is effecting the transaction.
This can be seen from the Rambam's ruling that a gift may be nullified
(before witnesses) in advance by the giver, with no questions asked. One who sells an item, however, may
nullify the sale only if he can objectively prove that he sold it under duress.
(See Hilkhot Mekhira 10:1-3 and Hilkhot Zekhiya 5:4.)
To sum up, the Rashba and the Ritva maintained that if "hahu hana'a" were
understood merely as a source of motivation, it could never be a sufficient
validation of the gemirut da'at of the arev. For this reason they understood that the
satisfaction is a means of creating the obligation, an actual vehicle of kinyan,
which has the added feature of lowering the required level of da'at makneh by
defining the transaction as bilateral.
This is what allows the arev to sidestep the problem of asmakhta.
This understanding of Rav Ashi, also solves our problem of the lack of
kinyan. This two-sided type of
transaction is similar to regular kinyan, and can therefore serve as kinyan
kesef for kiddushin. But having
said this, it seems to me that we still haven't gotten to the bottom of arevut,
in the view of these Rishonim. We
have to clarify further why arevut works as an act of kinyan, only because the
arev receives some sort of 'satisfaction' for his trouble.
The Ritva in Bava Metzia (73b) draws a fundamental conclusion from the
institution of arevut. The gemara
says that an agent who had been commissioned to buy wine at a low price, and
failed to do so, is liable. On what
basis? Since the loss was caused
indirectly, "nezek" (liability for damages) is seemingly out of the
question. Ritva quotes his teacher
on this point: "Even though he didn't at all promise to pay - since the buyer
gave him his money to buy merchandise, and if not for the agent he would have
purchased it himself or sent someone else... but the buyer trusted him and gave
him his money for that end - he must pay for the loss which he caused by his
reassurance, for in lieu of the of the satisfaction he receives from being
trusted with the money of the buyer, he obligates himself, like an arev." Ritva concludes, fully aware of the
far-reaching implications of this discussion: "And this is a major ruling ('din
gadol')." How does the Ritva derive
his ruling from the law of arev?
What do they have in common?
In light of the Ritva's treatment of arevut in kiddushin, we are tempted
to understand that in the case of the agent, as in arevut, the ma'aseh kinyan
which obligates the agent is the hana'a he receives by being trusted. This vehicle of obligation overcomes the
problem of asmakhta in both cases.
But such an understanding ignores the momentous chiddush (innovation)
explicit in the opening words of the above citation: "Even though he didn't at
all promise to pay." The obstacle
to the creation of this obligation is incomparably more severe than a mere
asmakhta. In asmakhta, the content
of the obligation was stated and agreed upon, and we nevertheless assume lack of
intent to pay. In the case of the
agent, the matter of payment never even came up! And the Ritva thinks that even here, the
obligation is derived from arev. It
is no wonder the Ritva considered this a "din gadol"!
Interestingly, a similar chiddush appears in the Rashba. He ruled (responsum 1017) that someone
who caused a loss by advising a borrower that there was no risk in repaying a
loan without demanding return of the shtar (promissory note), is liable, "for
whenever anyone acts on the word of another, that person is liable as an
arev." Here again, the idea of
payment never dawned on the adviser, and it certainly was not discussed. Nevertheless we view him as having
obligated himself. This is a major
innovation, and is in dire need of a source. I have no doubt that this itself is the
primary significance of the law of arevut, according to the Rashba and
Another Look at Rav Ashi and
In light of the above, let us ask: how could the gemara raise the problem
of asmakhta regarding the arev?
Asmakhta is an obstacle where da'at is needed; but the Ritva thinks that
the arev is obligated even when he didn't consider payment! This problem requires us to sharpen our
understanding of arevut.
One source from which the gemara in Bava Batra (173b) adduces the
principle of arevut, is Yehuda's assurance to Yaakov regarding Binyamin: "I will
be responsible for him" (Bereishit 43:9).
Yehuda's commitment was not a formal, legal one. It was an assumption of moral
responsibility. If anything were to
happen to Binyamin, Yaakov would have a moral claim against Yehuda: "I will be
at fault before my father forever."
Arevut is generated whenever a person assumes moral responsibility for
someone else's money. If I give
someone my word of honor that he is not putting himself at financial risk, and
he acts based on his faith in my assurance, I become an arev, even though I
never intended to commit myself in legal terms. [This understanding touches upon a much
broader issue which makes the halakhic legal system special: The interface
between the ethical moment and the legal moment within the halakhic system. Clearly we cannot delve into this issue
in depth within the context of this shiur.]
The essence of arevut according to the Rashba and Ritva, is that a moral
commitment is viewed as if it were a formal self-obligation. That is why the gemara assumes that
da'at is needed and asmakhta is invalid - the arev IS considered to be
officially obligating himself even though this obligation in monetary terms may
not have been intended. The gemara
then faulted arevut as asmakhta, because even after the metamorphosis of the
promise into a formal undertaking - that undertaking is still only
conditional. Even had it been
explicit, argues the gemara, it would be an asmakhta. We have not solved the problem of
asmakhta by merely saying that "it is as if the arev has formally obligated
himself." After all, the
halakhically imposed formal obligation cannot be more serious than the moral
responsibility upon which it is based.
Rav Ashi's answer, as explained by the Rashba, now takes on a different
coloring. As we explained above,
the fact that the arev receives satisfaction, shows us that arevut is a standard
two-party transaction. But why is
receiving hana'a alone like receiving actual money? Hana'a can be seen as kesef by extending
the basic principle of arevut.
Arevut invests informal practices with legal significance, in order to
make them halakhically binding. An
informal, moral undertaking becomes da'at makneh. Likewise, ethereal, non-marketable
benefit, becomes kesef kinyan. So
the arev obligates himself in return for receiving this hana'a. There is no problem of asmakhta, for a
lower level of da'at is required in this type of kinyan, which is bilateral as
explained above. And so, finally,
we can understand how the gemara can apply the kinyan that exists in arevut to
kinyan kiddushin. We consider
arevut an official 'ma'aseh kinyan,' with full da'at, after
1. We brought two interpretations of the
way arevut works in a loan - a) Rabbenu Chananel, b) the Rashba and Ritva. A third one can be inferred from the
Rambam Hilkhot Mekhira (11:15.)
What is it? What is the
difficulty in applying this conception to kiddushin?
2. See the Rema in Choshen
Mishpat 129:2. According to which
view of arevut can this be understood?
However, see the understanding of Arukh Ha-Shulchan (paragraph 3, until
"gadol mi-zeh") - how does he interpret the liability in this case?
Can this idea be applied as a
theoretical basis for arevut generally?
3. Mordechai Bava Kama (46)
quotes Rabbenu Netanel, who proved that asmakhta is only a problem mi-derabanan,
but works mi-de'oraita: "As they said, what is the source of arev in the
Torah? From the verse 'Anokhi
e'ervenu'; and that is an asmakhta."
Rabbenu Netanel appears to be relying on the gemara in Bava Batra; but
which part of the sugya is at odds with his statement? Rabbenu Netanel apparently did not take
the sugya at face value - what may have caused this?
Sources and questions for next
Kiddushin (7a) "Heilakh mana...
ka kani nafshei."
Kiddushin (23a) "Be-kesef al
yedei acheirim...rabo le-cheirut."
Machaneh Efrayim, Hilkhot
Shluchin Ve-shutafin siman 15 (first paragraph).
Ketzot Ha-choshen, siman 195
se'if katan 9.
Rav Chayim al Ha-rambam, Hilkhot
Malveh Ve-loveh 5:3 "Ve-hinei... end of comments."
Rashi Kiddushin (7a) s.v.
Mishneh La-melekh, Hilkhot Ishut
5:1 (end of comments: "ve-raiti le-Radvaz... o lo").
1) Which two models for
understanding 'eved kena'ani' are suggested by the gemara in Kiddushin
2) What is the common
denominator between the Machaneh Efrayim and the Ketzot? Can one distinguish between them?
3) Does Rav Chayim agree or
disagree with their reading of eved kena'ani?
4) Could I validate the Radvaz's
ruling and still question the validity of kiddushin mi-din eved kena'ani as
depicted in our gemara?
5) What is the difficulty with
Rashi's explanation to our gemara?