GEMARA KIDDUSHIN
Yeshivat Har Etzion

SHIUR #15: KIDDUSHEI SHTAR

by Rav Yaacov Francus

Introduction

            The first mishna in Kiddushin states that a woman may be married through a marriage contract.  This shiur will analyze the gemara's discussion of this type of kinyan, and try to uncover the nature of kiddushei shtar.

1. Shtar Kiddushin versus Shtar Kinyan

            The gemara (Kiddushin 9a) states that the husband must write the shtar kiddushin (marriage contract),and give it to the wife.  The gemara asks why a shtar kinyan (commercial bill of sale) is given by the seller, whereas the shtar kiddushin is given by the husband (who is analogous to the buyer).  The gemara offers two answers.  One is that there is a 'hilkhata' (an oral tradition) that this is so, and the other is that based on the pesukim (verses) in the Torah the shtar kinyan is given by the makneh (seller), and the shtar kiddushin by the husband.  The prooftext regarding kiddushin is "ki yikach."

            This distinction between shtar kinyan and shtar kiddushin raises a broader issue whether there is a basic difference between the shtarot, or whether the kinyan (act of acquisition) is essentially the same despite technical distinctions.

            To answer this question, we must first analyze kinyan shtar itself and then compare it to the use of shtar for kiddushin.

Kinyan Shtar

            There is a basic disagreement between R. Meir and R. Elazar with regard to shtarot (see Kiddushin 48a).  According to R. Meir a shtar must have the signature of the witnesses affixed to it.  R. Meir's view is that "eidei chatima kartei" - the signature of the witnesses creates the shtar.  R. Elazar's view is that even if no witnesses sign the shtar, if they are present when the shtar is handed over the shtar is valid.  According to R. Elazar "eidei mesira kartei," the witnesses give the shtar its validity when they witness the handing over of the shtar.

            It is important to note that there are two types of shtar.  1. Shtar kinyan - a shtar given from the seller to the buyer in order to effect a transfer of ownership.  2. Shtar ra'aya - a document given over as evidence.  For instance a shtar halva'a - a document which attests to a loan - is merely evidence in the hands of the lender proving that the borrower owes him money.  This type of shtar does not create the monetary obligation, but merely attests to it.  It is reasonable to assume that both R. Elazar and R. Meir agree that a shtar ra'aya requires the actual signature of the witnesses - eidei chatima, otherwise, the document would not furnish any proof.  The argument between R. Meir and R. Elazar is limited to a shtar kinyan.  (See Tosafot Rid Bava Batra 77a.)

            The nature of the kinyan shtar may depend on the disagreement of R. Elazar and R. Meir.  According to R. Meir that "eidei chatima kartei" the essence of the shtar may be the proof inherent in it.  Therefore R. Meir requires the actual signature of the witnesses for a shtar kinyan, just as it was necessary for a shtar ra'aya.  According to R. Elazar that "eidei mesira kartei" the shtar kinyan may be a formal document whose mere transfer effects the kinyan.

            The nature of kinyan shtar might also depend on who gives the shtar.  If the effectiveness of kinyan shtar stems from the fact that the proof of ownership is transferred to the koneh (buyer), clearly the makneh must give the shtar.  However, if kinyan shtar is merely a formal act which consists of handing over a shtar kinyan, it may be possible to consider letting the koneh give the shtar to the makneh.  (It may be similar to a kinyan sudar (handkerchief) according to the understanding that kinyan sudar is not based on kinyan kesef, but is a formal act by which the kinyan takes place. [See shiur #4 - ed.])

Kiddushin as Kinyan Shtar

            The halakha is that the makneh must give the shtar, and the shtar states that the makneh is transferring the field to the koneh.  The shtar kiddushin, however, states that the husband is being koneh the wife, and is nevertheless given by the husband.  If kinyan shtar is essentially a formal act of transferring a shtar, then the shtar kiddushin can be viewed as a regular shtar kinyan.  The shtar kiddushin, however, must be given by the husband, although he is the koneh, because the Torah says "ki yikach," indicating that the husband must play the active role in the kiddushin.

            If, however, we maintain the position that a shtar is koneh through the transfer of proof, we are forced to suggest an alternate understanding of shtar kiddushin.

            Perhaps, a shtar kiddushin can also be viewed as serving a role very different from a regular shtar kinyan.  Whereas a shtar kinyan relates to acquisition, the shtar kiddushin relates to the change in the personal status of the couple.  The shtar concentrates on the ramifications of the kiddushin, the status of the bride as an "eshet ish", a married woman.  By analogy, a divorce, a get, can also be viewed as a document whose focus is on the change in personal status of the woman.  Before receiving the get she is an "eshet ish" (married woman) and after receiving the get she becomes a "grusha", a divorced, unmarried woman.  Accordingly, the shtar kiddushin, whose validity is learned about from get, would be a "shtar issur", a shtar which creates a change in personal status, rather than a shtar kinyan.  The kinyan associated with kiddushin would naturally follow from the change in personal status.

Summary

            If a shtar kinyan operates by transferring proof of ownership to the buyer, then a shtar kiddushin cannot be viewed as a regular shtar kinyan.  Perhaps a shtar kiddushin is a 'shtar issur,' unlike a shtar kinyan that relates only to monetary acquisitions.  However, if kinyan shtar operates by the formal act of transferring an official document of sale, it is possible to view a shtar kiddushin as a type of shtar kinyan, despite the technical discrepancy that the man - koneh hands the shtar to the women - makneh.

2. Shtar Kiddushin versus Get

            The gemara then asks whether a shtar kiddushin has to be written 'lishma,' with the specific intent that a specific man will use the shtar to marry a specific woman.  The gemara concludes, based on "ve-yatz'a ve-hayta," a verse which compares marriage to divorce, that the shtar kiddushin similar to a get must be written lishma.  This gemara raises the question of the relationship between the shtar kiddushin and the get.  The possibility that in fact lishma is not needed appears to be based on the understanding that the limud from get is only with regards to the question of whether a shtar can be used for kiddushin, but the specific rules of the shtar are not learned from gittin.  The conclusion of the gemara, which compares shtar kiddushin to get with regard to lishma, raises the issue as to the extent of this comparison.

            The Rishonim, for instance, discuss another requirement learned from the laws of gittin as well - the question of whether the bride and groom must be mentioned by name in a shtar kiddushin.  The Ramban is inclined to accept the view that the Torah requires the names of the husband and wife to be mentioned in a get.  This is based on the fact that a get is called a "sefer keritut" (book of severance) which indicates that the story of the divorce must be told in the get.  Therefore, the Ramban concludes that a shtar kiddushin must also include the names of the bride and groom.  The Ritva disagrees and writes that even if the Torah requires the names of the husband and wife to be included in a get, there is no such requirement by a shtar kiddushin.  The requirement of "sefer keritut" which exists by gittin does not exist for a shtar kiddushin.  A shtar kiddushin is valid so long as it is clear who is getting married, even if the information is not explicitly mentioned in the shtar. 

            The Ramban and Ritva disagree whether the requirement of sefer keritut applies to a shtar kiddushin or not - does a shtar kiddushin have to be a "sefer", a document which clearly tells the story of what is happening, or not?

3. Sefer Keritut - personal statement or official document

            The unique status of the get as a sefer keritut can be explained in two ways.

A. Rav Lichtenstein asserts that whereas all shtarot may be viewed as the written testimony of the witnesses, a get must be viewed as the written statement of the husband which may be transmitted by means of witnesses.  Thus, the get must be a statement directly from the husband, and cannot be phrased as the testimony of witnesses who witnessed the divorce.  Other shtarot, such as a ketuva, can be phrased as testimony of the witnesses, and need not be in first person.  The Ramban s.v Bein states that a get must be a statement of the husband directly to the wife.  As a personal message the get may have to contain the information of who is sending it, and who receives it.  The ability to glean this information from the witnesses, or from the fact that the woman has the get in her possession (which may replace the requirement to have her name mentioned), does not suffice.  By contrast, the basic point of the shtar is to serve as testimony, therefore even if all the information is not included in the text, it can be used in conjunction with other evidence which is external to the text.

            According to the Ritva, the laws of shtar kiddushin are learned from those aspects of the get which are parallel to other shtarot.  However, they need not parallel a get with regard to requirements which are unique to a get being a personal statement of the husband to the wife.  Therefore the names of the husband and wife need not be written in the shtar.  The Ramban, on the other hand, applies even these requirements which are unique to get, to a shtar kiddushin.

B. The Ritva (Kiddushin 9a s.v. 'Amar Rava,' the paragraph which begins 've-ha de-amrinan') however, also denies that a get has to be phrased as the direct statement of the husband to the wife.  Thus, it seems clear that the Ritva disagrees with the principle of the Ramban, and argues that the uniqueness of a get does not stem from its nature as the personal statement of the husband to the wife.

            Accordingly, the rule of sefer keritut can simply mean that there is a special requirement by gittin that the story of the divorce be clear from the get itself.  Thus, whereas another shtar need not contain within it the entire story of what took place, a get must contain within it clear documentation of the divorce.  According to R. Meir the witnesses must also be in the shtar while according to R. Elazar they need not be in the shtar, but the entire episode must be contained in the get.  Thus, it is possible that only by get, and not by kiddushin, is there a requirement that the shtar contain complete evidence of what happened i.e. the shtar itself must tell the story clearly.

            This understanding of the nature of the requirement of 'sefer,' may lead to another conclusion.  The Rambam's view (Hilkhot Geirushin 1:13,15,16) is that although R. Elazar's view is that "eidei mesira kartei", R. Elazar agrees that eidei chatima also suffice for a get.  That is, according to R. Elazar "af eidei mesira kartei".  (This question is hotly debated by Rishonim.)  Nevertheless, the Rambam only mentions eidei mesira in Hilkhot Ishut(3:3) when he describes a shtar kiddushin.  The Gra, in his gloss to the Shulchan Arukh (Even Ha-ezer 32 note 2), states that according to the Rambam eidei chatima are insufficient for a shtar kiddushin, and valid only for a get.

            It is possible that since a get is considered a sefer keritut, the Torah indicated that the written document must tell the story of the divorce, and also indicated that the witnesses can sign the get, and need not actually be present when it is handed over.  Since the term sefer is used in Yirmiyahu with reference to a shtar whose only function is to serve as evidence of a sale, a shtar ra'aya (see Kiddushin 26a) we see that a sefer can mean a document which witnesses sign.  Therefore, even R. Elazar whose view is that shtarot require eidei mesira, agrees that for a get eidei chatima are also sufficient. The shtar kiddushin, which does not have the halakha of sefer, can only function with eidei mesira.  (R. Meir, by contrast, whose view is that any shtar requires witnesses who sign it, certainly requires eidei chatima for a shtar kiddushin, as stated in the gemara in kiddushin 48a.)

Summary

            The requirement that get be a 'sefer keritut,' can indicate one of two things.  Rav Lichtenstein (following the Ramban) understood that a get must be the personal statement of the husband.  Therefore, the get must include all the personal details of the case, such as the husband and wife's names, in the shtar.  We (following the Ritva) proposed that the requirement of 'sefer' tells us that the get must be a written document that tells the story of the divorce.  This document can merely be signed by the witnesses, who need not actually be present when it is handed over.  The shtar kiddushin, however, which does not have the halakha of sefer, can only function with eidei mesira, and needn't be explicit as to the details of the story.

4. Shtar Kiddushin on Mechubar

            The gemara (Gittin 9b-10a) seems to indicate that a shtar kiddushin is invalid if written on mechubar, on something which is attached to the ground, such as a leaf.  This is explicitly stated in Rashi on Gittin 10a s.v. 'Hakhi Garsinan.'  The Yerushalmi derives this halakha, with respect to gittin, from the word sefer.  Therefore, if the rules of sefer keritut do not apply to a shtar kiddushin, mechubar would be allowed since the requirements of sefer are not applicable to a shtar kiddushin.  If, however, only those aspects of a get which are unique to it as the personal message of the husband are not applied to kiddushin, then the halakha that mechubar is invalid would also be applicable to a shtar kiddushin.

            The Rashba (Responsa no. 600) writes that mechubar is only invalid for gittin.  (However, the Rashba on Gittin 10a and in Responsa no. 1226 explains like Rashi that a shtar kiddushin is invalid if written on mechubar.) According to the Ramban that the names of husband and wife must be stated explicitly in a shtar kiddushin, sefer is required as well.

            The Bavli, however, derives the invalidity of a get mechubar from "ve-khatav ve-natan."  Accordingly, the source of the argument whether or not mechubar is valid for kiddushin, is how to understand this limud.  On the one hand, it may indicate that the get must be written on something which can be handed over, and may thus be easily applicable to a shtar kiddushin which must be handed over as well.  However, it may indicate the need for a continuous process starting with the writing of the get and extending to the handing over of the get, the netina, with no additional interruption.  If so, the halakha that a get cannot be written on mechubar would depend on the fact that netina is a formal requirement for gittin.  If so, the applicability of this halakha to a shtar kiddushin would then depend on whether there is a requirement of netina by a kiddushin just as there is a requirement of netina by a get.  The Rambam does not mention the requirement of netina by a shtar kiddushin, nor does the Rambam mention the psul (invalidity of) mechubar.  However, the Acharonim do raise the possibility that if a woman picks up the shtar from the ground, rather than having the husband hand it over, the kiddushin are invalid.  The source of this halakha is gittin.  It is based on the fact that there is a requirement of netina with regard to get.

5. Shtar Kiddushin on Issurei Hana'a

            Issurei hana'a are objects from which no benefit may be received.  For example, chametz on pesach is an issur hana'a.  It may not be eaten, nor may one benefit from chametz by selling it.  The Rishonim disagree whether or not it is possible to transfer ownership of issurei hana'a from one person to another.  Thus, if on pesach Reuven hands over his chametz to Shimon, Shimon's ownership of the chametz is subject to this debate among the Rishonim.

            The Rashba in a responsa (203) writes that a shtar kiddushin cannot be written on issurei hana'a despite the fact that a get can be written on issurei hana'a.  The Ran, however, says that the rules of get and kiddushin should be identical.  The Avnei Miluim (no. 139) explains the Rashba's position.  He asserts that a get is valid if it is handed over, even if the woman does not acquire possession of the paper.  The proof is that a get can be given despite the wife's refusal to accept it, whereas nobody can acquire anything, including a piece of paper, against his will.  The Avnei Miluim accepts the view that it is impossible to acquire issurei hana'a.  Consequently, since a get can be given on issurei hana'a (Gittin 20a), a get must be valid even if it is not acquired by the wife.  He continues to claim that a regular kinyan shtar is only valid if the koneh actually acquires the shtar.  (A close reading of the Rashba in Gittin 75a s.v. 'Mikhlal' seems to indicate that indeed there is no requirement for the wife to be koneh the get.)

            According to the Avnei Miluim, the validity of a shtar kiddushin written on issurei hana'a is dependent on whether a formal netina (which is possible by issurei hana'a) is sufficient.  If we need a legal acquisition of the shtar kiddushin, then a shtar kiddushin written on issurei hana'a would not be valid.  This is the conclusion of the Avnei Miluim; however, it is not self-evident.  If a get is valid although the document is not acquired by the wife, the same may be true with respect to a shtar kiddushin.  This depends on how we understand the kinyan accomplished by shtar kinyan.  If we understand that the shtar kiddushin is also comparable to a get with regards to the way the kinyan takes place, based on the limud "ve-yatza ve-hayta", kiddushin should be valid just like a get. (See Gittin 78a, the second mishna, and the gemara 78b "ve-khen le-inyan kiddushin" until "ve-yatza ve-hayta", with Rashi, the Ramban and Tos. Rid, and the rulings of the Rambam.)

6. Shtar Kiddushin in Ktav Yado

            Another question which comes up with respect to the comparison between a shtar kiddushin and a get is whether ktav yado is valid for a shtar kiddushin.  The mishna in Gittin (86a) states that a get which is hand-written by the husband, ktav yado, but has no witnesses is valid according to the Torah.  Chazal stated that such a get is invalid and the woman may not remarry.  However, if she does remarry the children are not mamzerim (bastards).

            The gemara does not explicitly discuss whether a shtar kiddushin which is written by the husband but has no witnesses is valid.  (This entire discussion assumes that a shtar kiddushin is valid with eidei chatima.)  The Ritva in Kiddushin (9a) states that ktav yado is valid for a shtar kiddushin just as it is valid for a get.  The Rashba in Yevamot (31b s.v. 'Ha De-amrinan') disagrees, and claims that although ktav yado is valid for a get, it is not valid for a shtar kiddushin.

            There are several reasons that may explain why ktav yado is valid for gittin.  One possibility is that since the Torah states "ve-khatav la," the husband should write for his wife a "sefer keritut," the Torah explicitly allows ktav yado by gittin.  If so, this may also be true of a shtar kiddushin which is learned from get based on the limud "ve-yatza ve-hayta".  The Rashba claims that this halakha is limited to gittin.  This is most easily understood if we accept Rav Lichtenstein's explanation that a get is in essence a direct statement from the husband to the wife.  Accordingly, it is certainly valid if the husband himself writes it.  A shtar kiddushin, however, is parallel in this regard to every other shtar kinyan, and requires witnesses.

            It is, however, possible that ktav yado replaces the witnesses.  A party to a case has the absolute power to incriminate himself or weaken his case, as though witnesses testified against him.  This is based on the rule "hoda'at ba'al din ke-me'a eidim dami", the confession of the party involved is equivalent to one hundred witnesses.  If a get is handwritten by the husband, there is no need to ask witnesses to testify that the husband intended to divorce his wife and wrote the get.  Thus, it is equivalent to a get which is signed by two witnesses.  The fact that the get was handed over is based on the almost certain presumption ("anan sahadei"), which serves instead of explicit testimony that the husband handed over the get.  This line of reasoning should also be applicable to a shtar kiddushin.

            The Rashba in Yevamot raises another possible distinction between gittin and kiddushin.  The basic point is that whereas in kiddushin there is a formal requirement to have witnesses, for gittin witnesses are only required to insure that the get was written at the behest of the husband and given by him.  Thus, ktav yado can serve as proof that the husband wrote the get, but cannot fulfill the formal requirement of having witnesses.  This issue requires a discussion of the source of the requirement for witnesses for kiddushin, and goes beyond the scope of this shiur.

7. Le-da'at Ha-isha

            The question of whether the shtar kiddushin must be written 'le-da'at ha-isha' (the sugya on 9b) will not be treated here for lack of space.  The issues which must be dealt with are: A. whose da'at is required for shtarot in general, B. whose da'at should be required for lishma, C. how is the general issue of da'at ha-mitchayev dealt with by the shtar kiddushin (assuming that such a requirement exists), and D. how lishma is created.  The question must be raised whether the sugya is discussing lishma or da'at ha-mitchayev.

8. Summary

            We first discussed the nature of the kinyan by a shtar kiddushin - is it a regular shtar kinyan, or a 'shtar issur.'  The Ramban and Ritva disagree whether the requirement of sefer keritut applies to a shtar kiddushin or not.  We explained the requirement that a get be a 'sefer keritut' in two ways.  Rav Lichtenstein (following the Ramban) understood that a get must be the personal statement of the husband.  We (following the Ritva) proposed that the requirement of 'sefer' tells us that the get must be a written document that tells the story of the divorce.  The nafka minot (ramifications) may include whether the names of the parties involved must be included in the text, and whether or not the witnesses need be present when the get is handed over.  We then discussed other laws regarding the use of shtar for kiddushin, the laws of mechubar, issurei hana'a, and ktav yado, and explained their significance to our understanding of kiddushei shtar.                            

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Sources for next week's shiur:

1) Kiddushin 4b "U-ba'alah melamed ... u-ba'alah"

Kiddushin 9b "U-bevi'a ... ve-eino mefer nidreha mai"

Yerushalmi Kiddushin 1:1 "Amar R. Yudan kal va-chomer ... o be-vi'a"

Ketubot 74a "Amar lei bar bi rav ... le-hadadi"

Yevamot 15a "T"sh ma'aseh ... be-vi'a aza beineihu"

2) Yerushalmi Yevamot 14:1 mishna and gemara, until "... eino ma'aseh"

Ketubot 3a "U-mi ika mi-dei ...zenut"

Shitta Mekubetzet Ketubot 73b s.v. Od Katav "Ikka le-ukmei ... kiddushin ba'il"

3) Sanhedrin 57b "T"r ish ... ein lahen"

Rambam Hilkhot Ishut 3:5

Tosefta Kiddushin 1:1

Questions:

1) From what pasuk does the gemara derive kiddushei bi'a on 4b?  Which alternate pasuk is offered on 9b?  What is the difference between those two pesukim?

2) What does the inability to perform kiddushei bi'a with a t'nai indicate (for further research see Chiddushei R. Chayim al ha-Rambam in Hilkhot Yibbum ve-Chalitza)?

3) Why might a katan be able to perform kiddushei bi'a and not kesef or shtar?

4) Must the husband recite "harei at mekudeshet" when performing kiddushei bi'a?

5) Why does the gemara on 10a suggest that kiddushei bi'a achieves a state of nissu'in as well?