SHIUR #4: Kinyan Chalipin and Kiddushin

               Based on shiurim by R. Ezra Bick

 The gemara (3b) states that the enumeration of three  methods of kiddushin in the Mishna implies that no other  method is valid. What is the potential method being excluded?  After first considering chupa, the gemara suggests that  chalipin (barter) is the method that is invalid for kiddushin.  In commercial transactions, one can exchange goods, so that if  A takes physical possession of an object belonging to B, A's  object is legally transferred to B, although it is not in his  physical possession.  This can be used to acquire any object.  The buyer gives the seller some object, and thereby  automatically assumes ownership of his purchase. The object  used to effect this kinyan (acquisition), can then be returned  to the buyer. This is called kinyan sudar - acquisition  through a handkerchief - as a small piece of clothing suffices  to effect this kinyan. At weddings today, for instance, the  obligations expressed in the ketuba (marriage contract) are  formalized through kinyan sudar, where the Rabbi, representing  the bride, gives his handkerchief to the groom, thereby  acquiring in her name the obligations of the ketuba.

Chalipin is in fact the most ubiquitous kinyan, effective  in transactions involving both real and movable property, as  well as being used to formalize monetary obligations.  Nonetheless, the Gemara states that it is inapplicable to  kiddushin. The Gemara then asks why not, since it can be  derived from the sale of Efron's field in the same manner as  kesef. The Gemara's answer, according to the version appearing  in the printed Talmud edition, is: "Chalipin can be performed  with (an object worth) less than a pruta, and a woman does not  give herself for less than a pruta". This is referred to as  the version of Rashi, who explains the logic of the conclusion  as follows: "It is insulting to her; therefore the institution  of chalipin is invalid for kiddushin, even when using a  utensil worth more than a pruta - if he gave it to her as  (using the language of) chalipin."

Rashi's Interpretation

The Rishonim raise a number of problems with this  interpretation. It would appear from the question that in  principle any kinyan that works for land (like Efron's field)  will work for kiddushin. Were it not for this question, we  would probably conclude that Efron's field is only relevant to  kinyan kesef, acquisition with money, which is mentioned in  the Biblical narrative. However, once the Gemara considers the  possibility of chalipin, the door is opened to other methods  as well. Chalipin is invalidated only because it may be  performed with less than a pruta. But since land is acquired  through chazaka (possession) and shtar (legal deed) as well,  why can't they be used to marry a woman? (Shtar is a valid  method of kiddushin; however, the Gemara (5a) queries as to  the source, settling on a comparison with a bill of divorce  [get], rather than using the readily available derivation from  Efron's field.)

Secondly, the reason given by the Gemara for rejecting  chalipin, as explained by Rashi, raises a number of  difficulties. It seems that in principle chalipin should be  effective, but that the subjective rejection of chalipin by  the woman, because it is not appropriate to her honor, is what  prevents its use. Accordingly, Tosafot ask, if a particular  woman agrees to accept chalipin (even of less then a pruta) as  the means of kiddushin, why should it not be effective? She is  clearly not rejecting such a kiddushin. Secondly, it is not  clear why, if a woman objects to use of less than a pruta in  chalipin, use of more than a pruta is also invalidated.   Ramban points out that, according to Rashi, there is no  problem with chalipin per se, but only with the woman's  rejection of a particular instance of chalipin, due to the  inclusion of an objectionable feature, namely that the object  is not worth a pruta. If an object worth a pruta is used, why  should it not be effective?

R. Tam's Interpretation

R. Tam offers an alternative explanation, changing the  text of the Gemara's answer in the process. The Gemara never  thought that all kinyanim applicable to land are equally  applicable to kiddushin. "Kicha-kicha mi-sdei Efron" implies  only that kesef - the kinyan used by Avraham and Efron, can be  used for kiddushin as well. However, the Gemara assumed that  chalipin, as opposed to chazaka or shtar, is in fact a form of  kesef. The Gemara's answer is that a woman can not be acquired  for less than the value of a pruta. (R. Tam erases the  continuation of the answer, as it appears in our text - "a  woman does not give herself"). This fact implies that chalipin  is not a form of kesef, as kesef, by definition, requires the  minimum value of pruta. Hence, there is no possibility of  deriving chazaka or shtar, which are definitely not forms of  kesef, from Efron. Furthermore, chalipin with more than a  pruta is equally inapplicable, since the fact that it can be  done with less than a pruta implies that in principle, and in  all forms, chalipin is not based on the concept of value and  is therefore not a form of kesef.

While it is possible to understand the assumption of the  Gemara's question to be that there is no difference between  chalipin and kesef, this would appear to be very difficult.  There are, after all, technical differences between the two;  for instance, chalipin must be performed with a "kli", a  utensil, which excludes the use of coinage - of kesef itself

!A more likely explanation is that chalipin and kesef  belong to the same family. Both are based on providing  compensation to the seller - in one case with money that  represents real value, in the other with an object useful in  itself. Kesef, money, may be defined as pure value, a means of  exchange with no intrinsic use in itself. Kinyan kesef works  because transfer of value in one direction elicits a parallel  transfer in the other. So too, if a utensil is provided to the  seller, the parallel object is acquired by the buyer through  chalipin. The Gemara therefore suggests that if kesef is  effective for kiddushin, chalipin should also be.

The Gemara answers that chalipin may be accomplished with  less than a pruta - implying that it is a different type of  transfer. The object of chalipin need not have legal value;  hence it cannot serve as compensation. Compensation entails  repaying in a different coin what was lost to the other party.  The transfer of value in one direction elicits a parallel  transfer in the other. Chalipin is based not on compensation  but on exchange.  In an exchange, the two objects are seen as  exactly equivalent, so that it is as if no change takes place  at all. Trading my horse for your donkey is effective because  we each get the possession we always wanted. Since no transfer  has taken place, no compensation can be spoken of, because no  loss has occurred to repay. Therefore, a woman cannot be  exchanged for an object, because she cannot be seen as the  equivalent of a physical object.  Compensation, kesef, on the  other hand, is appropriate since what the woman "gives"  deserves compensation, even if the form of compensation -  money - is not the equivalent of a woman.

A Second Interpretation of R. Tam

We can also understand R. Tam's reading of the Gemara  slightly differently, if we reexamine the derivation from  Efron's field. The Yerushalmi states that kesef is effective  in kiddushin because it is written, "ki yikach ish isha - ve- ein kicha ela be-kesef."  The Yerushalmi claims that since the  verb 'kicha' in mishnaic Hebrew is the standard way of saying  'to purchase', this is the meaning of the verse in question as  well. Since a verb commonly referring to purchase is used to  describe marriage, the proper method of effecting kiddushin is  kesef, which is the standard method of purchase. Maybe this is  the meaning of the Bavli as well. Since the verb 'kicha' can  mean both monetary purchase and 'taking' in general, the Bavli  cites Efron's field to illustrate that the verb is used to  refer to purchase. This is not a derivation of the means of  kiddushin. Rather, the Gemara is deriving from the case of  Efron's field what the meaning of the word kicha is.  Accordingly, the Gemara questions whether chalipin is a type  of purchase, and concludes that barter is a different type of  transaction that can not be considered a purchase. The  language of Rashba when citing this Gemara suggests this  approach. He concludes, "The Torah did not say "acquire" by  kiddushin, but kesef (i.e., "kicha", which means kesef),  therefore chalipin doesn't work."

It is clear that R. Tam's reading, according to either  explanation, answers all the questions raised above. Other  means of acquisition, such as chazaka or shtar, are not  candidates at all, since they are clearly not similar to  kesef. The psychological attitude of the particular woman  towards chalipin is not relevant, since the problem is not in  her rejection of chalipin, as Rashi stated, but in the nature  of chalipin itself. Finally, chalipin of more than a pruta is  equally invalid, as it is the identification of chalipin in  general with kesef that is called into question.

Rashba's Interpretation

The Rashba adds an interesting dimension to R. Tam's  approach. Were chalipin a genuine barter, where both sides  kept the objects traded, then even though chalipin with less  than a pruta would not be effective, with more than a pruta   it would be. However, since in chalipin - kinyan sudar - the  handkerchief is returned to the seller, chalipin is declared  invalid for kiddushin. Rashba explains that since the kinyan  is not effected "by the body (guf) of the object, but by its  status (din)" it is invalid. What does this mean?

Apparently, Rashba is arguing that chalipin does not work  by providing compensation, even in the sense of a trade. The  fine distinction we put forward above between compensation and  exchange is irrelevant according to the Rashba. If she had  received something, she could give herself in return. Were the  object to be genuinely the property of the woman, and were it  to be worth a pruta, then the kiddushin would be valid, since  she has received something in exchange for herself. However,  chalipin doesn't actually provide anything to the woman, since  she has to give it back. The kinyan does not use the "guf",  meaning the value, monetary or utilitarian, of the object, but  rather it uses the object as a formal token. Here, Rashba  introduces the psychological element. It is insulting to the  woman to be acquired by the formal status of an object, when  the object could have been used to acquire her for its real  value. Therefore, the institution of chalipin is rejected  altogether by the woman.

Rashba, then, combines Rashi and R. Tam. The answer of  the Gemara first proves that chalipin has a different nature  than kesef (like R. Tam), but then applies a psychological   reason for the rejection of chalipin by the woman (like  Rashi.) The woman does not object to the worth of the chalipin  object, but the nature of chalipin itself.

Rashba's explanation, relying on psychological rejection,  leaves our original question unanswered. Why are chazaka and  shtar not derived from Efron' field like kesef? To this Rashba  replies that the question of whether the derivation from  Efron's field should include all valid methods of acquiring a  field, or only the particular method used by Abraham and  Efron, is itself the issue which the Gemara discusses. In the  question, the Gemara felt that all kinyanim could be derived;  however, once chalipin was excluded, for whatever reason, and  the derivation could no longer be all-inclusive, there is no  longer a basis for extending it beyond the minimum, which is  only kesef.

Ramban's Interpretation

The Ramban advances another explanation, referring, like  the Rashba, to the fact that chalipin is returned after the  kinyan. He claims that aside from the requirement that the  husband give an object to the bride, she must also benefit,  have "hana'a", from the object. The source for this  requirement is the statement of the Gemara (6b) that "matana  al menat le-hachzir" - a gift with the stipulation that it  must be returned - is a valid gift for all halakhic matters,  including kinyan kesef, except for kiddushin. There is a  disagreement among the commentators how to understand the  reason for this exception (see Rashi and Tosafot 6b). The  Ramban claims that kiddushin is different than regular kinyan  because it has an added requirement. In kiddushin, the woman  must benefit from the kesef. Since matana al menat le-hachzir  and chalipin both require the return of the object, there is  no benefit, no hana'a, accrued to the woman, and there is  therefore no kiddushin. (This is also the explanation of the  Rambam for the exception of matana al menat le-hachzir.)

The Ramban does not indicate why this extra requirement  exists in kiddushin. I think there can be two reasons.

A. Kinyan kesef operates by exchanging (for example) land for  money. Both the land and the money have some value, both are  objects of worth that can be owned. However, exchanging a  woman for money is inherently problematic, as a woman is not  property. The requirement that the woman have hana'a, seeks to  bridge this gap. The money she receives doesn't only enter her  pocket, engendering a parallel exit of something from her  pocket. When she has hana'a from the money given by the man,  it enters her very person. Hence it engenders a parallel exit,  or giving, of something personal to him - herself as a wife.  In other words, hana'a, according to Ramban, serves to  personalize the economic, monetary aspect of kinyan kesef and  render it appropriate for kiddushin.

B. Some Achronim argue that a higher degree of agreement  (da'at) is required of the woman in order for kiddushin to  take effect, in comparison to that required of the parties in  regular transactions (kinyanim). (They learn this from, among  other things, the statement of the Gemara (2b) that we require  a special source to tell us that kiddushin requires the  agreement of the woman.) This difference is expressed in a  case of forced agreement ("talyuhu ve-zavin" - "they hung him  up until he agreed to sell"), which is considered to be valid  agreement in sales, but is ineffective, according to some  opinions, if a woman is so forced to agree to marry. If this  assumption is correct, it is possible that the Ramban requires  hana'a to engender the added level of necessary agreement, as  the Gemara assumes in a several places that hana'a is  effective in causing a higher, more complete level of  agreement. (The role of hana'a in kiddushin will be discussed  more thoroughly in relationship to the sugya of "milva" -  kiddushin using a loan [6b]; the relationship between hana'a  and da'at arises in connection with the sugya of "areiv"  [7a]).

It is clear that the Ramban does not exclude chalipin  from kiddushin intrinsically. Basically, he would allow  chalipin, if, like kesef, it also provided benefit to the  woman. In fact, it would seem that if a genuine barter is  performed, and no stipulation of return added, there is no  reason why the Ramban would object. He apparently sees no  sharp difference between chalipin and kesef, other than the  lack of benefit in the formal stylized chalipin of kinyan  sudar. This differs from the opinion advanced by R. Tam, where  chalipin in principle is inapplicable to kiddushin, and cannot  be compared to kesef. According to R. Tam, a sharp distinction  must be drawn between payment and barter, at least in regard  to the applicability of these methods of acquisition to  kiddushin.

The Derivation from Efron's Field

Let us summarize the different understandings of the  derivation from Efron's field that we saw in our discussion of  chalipin:

1. According to R. Tam, the particular means of sale utilized  by Efron and Abraham is applicable to kiddushin. That method  is kesef - the question is whether chalipin may be considered,  in some way, a form of kesef.

2. According to the Yerushalmi, Efron's field is not actually  a source of the derivation at all, but only the means to  interpret the term "kicha" used in relation to kiddushin, so  that it is clear that it means kesef.

3. According to the Rashba, the Gemara debates between two  possibilities - that all methods of acquiring land may be  derived, or that only kesef may be derived.

4. According to the explanation offered by the Ramban, in  principle all methods are derivable, and in fact, one form of  chalipin is in fact valid. (The Ramban offers an independent  reason why chazaka is inapplicable.)

It is worth noting that the assumption that Abraham's  purchase was effected through kesef (clearly stated in 1.  above), is not at all obvious. It is true that the Torah  explicitly says that Abraham paid four hundred shekels - but  it does not say that this was the act of kinyan, and that he  did not also write a shtar or perform chazaka.  If the  derivation is formal - the word kesef is mentioned in  connection with the kicha of Efron, and therefore kesef has a  role in the kicha of kiddushin - this may not be a problem;  however, some Achronim apparently understood that Abraham  actually used kinyan kesef - the payment of four hundred  shekel - to acquire the field.

(The verse [23,16], "Avraham paid out the money to  Efron..." is followed by the verse, "Va-yakam sdei Efron -  Efron's field was established...to Avraham as a sale."  It is  possible to understand this to mean - he paid, and  consequently, the sale was effectuated.  The only problem is  the next two verses.  "Afterwards Avraham buried Sara his  wife... Va-yakam ha-sadeh - the field was established...to  Avraham as a burial portion. [19-20]" By the same  interpretation, this sounds like kinyan chazaka.  Perhaps, the  difference is in the results.  In the first case - kinyan  kesef - it is established as a sale; in the second, the actual  use and burial, it is established as an "achuzat kever," as a  burial portion.  What is the significance of the dual  validation of the sale? - Think about it - you can send your  answers to kiddushin@etzion.org.il.)

Aside from the formal question how to understand the  derivation from Efron's field, our discussion today touched  issues that will accompany us in many of the sugyot in the  future - how exactly does kesef effect kiddushin, what is the  connection between the kesef of the groom and the person of  the bride, the role of hana'a, etc.

Appendix: On the Nature of Chalipin

In our explanation of R. Tam above, we distinguished  between a regular kinyan, such as kesef or chazaka, and an  exchange, like barter. In standard acquisitions, an object  leaves one man's possession to enter another's and therefore  compensation must be given, whereas in an exchange the two  objects cancel each other out in such a way that it is as if  no change takes place. We explained that chalipin can not be  used for kiddushin because a woman cannot be exchanged for an  object, thereby implying that no change has taken place. The  Gemara's answer that chalipin is effected with a coin of less  than a pruta could be seen as a formal explanation why Efron's  field only serves as a source for kesef and not chalipin. But  we went beyond that to explain logically why chalipin is  inapplicable to kiddushin, despite its wide-ranging use in  other areas of halakha.

If you are still with me, I would now like to present an  extension of this explanation. There is a well-known  discussion in Achronim regarding kinyan. Is kinyan primarily  effected by da'at, the parties intent, with the formal act  necessary only to indicate, or alternatively to help  concretize, the proper level of da'at?  Or perhaps the formal  act effects the kinyan, and da'at is a secondary requirement.  However, even those who believe that da'at is the primary  cause of monetary kinyan agree that kiddushin demands a formal  act. If we consider this requirement, maybe we can understand  further why chalipin is inappropriate for kiddushin. Chalipin,  we claimed, is not an act of transaction, but an exchange of  equivalent objects, as though no transfer at all has taken  place. Since kiddushin requires a formal act of acquisition,  chalipin can not be used to marry a woman.

(R. Chaim Soloveitchik claimed that chalipin, unlike  other kinyanim which are formal acts, represents pure da'at,  and that is why it is inappropriate for kiddushin. This is  parallel, but not identical, to the preceding argument.)

Next Week's Shiur: Kiddushei Av -------------------------------

I. Kiddushin 3b, "Be'chesef" until Kiddushin 4a top line.   Tosafot s.v. "ha'av," s.v. "vechi teima"; Ritva s.v.  "u'farkinan hashta..." (bottom of column 19 in Mosad Harav  Kook edition).

II. Kiddushin 43b, "Ha'ish mekadesh" until "aviha v'lo hee"  (Kid. 44a, "R. Asi lo al" until "d'ashgach bei" Tos. s.v.  "tzavach".

III. Ritva 4b "V'itzderach" (end of column 29 in Mosad  edition).

IV. Rambam Hil. Naarah Perek II Halacha 13-15.

Guiding Questions: -----------------

1. What is the main issue of our sugya?  What is the main  issue of the sugya on daf 43b?  Are the sugyot related?

2. How can you understand the machloket between Rav Yochanan  and Reish Lakish? (Why does Rav Yochanan ignore Reish Lakish's  argument on 44a? See Pnai Yehoshua there.)

3. What is the main point of the machloket between Rambam and  Raavad? How does that fit in with what we learned in these  sugyot?