SHIUR # 10: "Arev" in Kiddushin by Rav Elyakim Krumbein
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 and Ma'aseh Kinyan
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 the obligation?
2. What is the legal mechanism, the "ma'aseh kinyan" (act of acquisition), by which the obligation is created?
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 well.
The Mechanism of Arevut
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 forces her to accept new obligations.
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, an unmarketable emotional state devoid of real economic significance, is equated with the giving of valid currency.
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 of arevut.
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 well?
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. Why should an improvement in social standing be the only incentive deemed strong enough to overcome "asmakhta?"
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 Unintentioned Arev
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, the same 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 Ritva.
Another look at Rav Ashi and Arevut
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 think of payment! This consideration 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 Ya'akov 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, Ya'akov 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 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 from an extension of 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, 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 all.
For further iyun:
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 week's shiur:
Kiddushin (7a) "Heilakh mana... ka kani nafshei." Kiddushin (22b) mishna. 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." Temura (29) mishna. Rashi Kiddushin (7a) s.v. Mi-din; Ritva. Mishneh La-melekh, Hilkhot Ishut 5:1 (end of comments: "ve- raiti le-Radvaz... o lo").
Questions :
1) Which two models for understanding 'eved kena'ani' are suggested by the gemara in Kiddushin (23a)? 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?