SHIUR #11: KIDDUSHIN MI-DIN EVED KENA'ANI                INDIRECT GIVING IN KIDDUSHIN                    by Rav Moshe Taragin

 The gemara in Kiddushin (7a) discusses the structure of  the act required to effect kiddushei kesef (marriage through  monetary payment).  Though one might consider that the husband  must give money DIRECTLY to the woman, the gemara softens  this  requirement, and offers several alternate forms of effecting  kiddushei kesef.  Possibly, one of the most intriguing  alternatives emerges from the gemara's consideration of the  husband's role in the process.  The gemara suggests that if  Reuven transfers money to a woman so that she marry Shimon,  the process is valid.  This ruling effectively displaces the  husband as the necessary 'giver' or source of the money.

More intriguing than the case itself is the rationale  suggested by the gemara.  The gemara bases this allowance upon  the law of 'eved kena'ani' (gentile slave).  Such an eved is  faced with the following dilemma: to liberate himself he must  financially redeem himself by paying his master.  He is not,  however, halakhically capable of owning money.  Anything that  he does acquire, transfers automatically to the master.  How  then can he be freed?  The gemara in Kiddushin (23a)  establishes a gezeirat ha-katuv (scriptural decree) [see  gemara Kiddushin 8a] which allows this redemption money to be  supplied to the master by another, on his behalf.  Even though  he hasn't personally delivered money, the eved is liberated.   The gemara employs this as a model for our form of kiddushin.   In each case, money wasn't actually delivered by the party  acquiring the item (the eved who acquires himself, or the  husband who acquires the woman).  Yet, in each case the  indirect delivery of money is valid.  This article will  explore the notion of indirect delivery, termed by the gemara  as 'din eved kena'ani,' and the scope of its application.

DIN EVED KENA'ANI

Any examination of this concept must begin at the source  - the actual case of an eved who is emancipated by another  paying the money.  Though a gezeirat ha-katuv is supplied, we  might still question the basis for this halakha.  The gemara  addresses this issue within the context of a controversy  between R. Me'ir and the Chakhamim (in fact the controversy  has little to do with this form of redemption).  According to  R. Me'ir, it would appear that the halakha of indirect  delivery might be explained in a very simple manner.  The  gemara explains that "kabbalat rabo ka garma lei," the receipt  of the money by the master causes his freedom.  As Rashi  notes, according to this theory it makes little difference who  actually supplies the money.  Freeing an eved is an uni- directional action executed solely by the master.  The role of  the money is to generate the master's consent and inspire him  to liberate his slave.  As long as the master received some  form of money, its source is irrelevant; he has received  incentive and carries out the emancipation.  It is clear,  then, that R. Me'ir's view of this halakha was based upon his  not requiring any direct delivery.  Receipt alone, even when  supplied by a foreign source, suffices.

What is less clear from the gemara is the rationale of  the Chakhamim who argue with R. Me'ir, and according to whom  we rule.  Do they similarly believe that the secret of  indirect delivery is based upon not requiring ANY delivery,  but merely the master receiving money on the eved's behalf?   This question is actually the subject of a controversy between  Rashi and the Ramban.  The latter equates R. Me'ir and the  Chakhamim.  Hence, we might infer that according to all  positions, the principle of eved kena'ani represents the  ability to effect a sale or kinyan without actually giving.   As long as your counterpart RECEIVED, he may transfer to you.   Rashi, however, differs and establishes a new justification  for this halakha according to the Chakhamim.  The volunteer  who offers the master money for the eved's freedom is acting  as the eved's unappointed shaliach (agent) through the law of  'zakhin.'  This rule dictates that in matters which are  absolutely beneficial to a person, one may act as his agent.  Despite the lack of explicit authorization, implicit  authorization can be assumed.  Since the person paying the  money is considered the shaliach of the eved, halakha  considers it as if the eved himself had rendered payment.  The  paradigm of 'eved kena'ani,' then, does not announce a  radically new theory, and does not diminish or remove the  importance of an actual delivery.  Instead it reminds us that  the delivery might be performed by agents of a person, if he  is unable or unavailable to give the money himself.

SUMMARY:

'Eved kena'ani,' which is established by the gemara as a  paradigm for the efficacy of indirect delivery, can be  explained in two distinctly different manners.  It might  reflect a conventional model of agency whereby another's  actions are considered mine.  Alternatively, it might be a  novel and innovative principle, which informs us that in  certain circumstances no actual "netina" (direct delivery of  funds) must be performed.  It is sufficient that money be  received.

In fact, eved kena'ani does serve as a universal model  for valid acquisitions, and is applied in broader contexts.   Again, some apply it to remind us that actual giving is  unnecessary, while others employ it as a model for associating  another's actions as mine.  An example of the former is the  Machaneh Efrayim (Shluchin Ve-shutafin 15) who describes a  case where a Gentile sends a Jew to rent a house for him, and  the Jewish agent pays money to the landlord on behalf of the  Gentile.  Even though the classical patterns of shlichut would  fail in this case (shlichut per se is inapplicable to  Gentiles), we would still validate this rental.  The landlord  received money and hence he transfers rental to the stated  party.  This succeeds even though the party did not render  payment directly or indirectly through his shaliach since the  Jew cannot be considered the formal shaliach of the Gentile.   Eved kena'ani teaches us that with regard to kesef, we are  unconcerned with the delivery; receipt alone is sufficient.

A similar strategy is adopted by the Ketzot Ha-choshen  (195:9) who analyzes the custom that the witnesses supply the  handkerchief used in kinyan chalipin (acquisition through  exchange).  In theory, the symbolic transfer of this  handkerchief should occur between buyer and seller, yet the  custom evolved that the witnesses pass the cloth to the  seller.  The Ketzot maintains that we cannot interpret this as  shlichut, but instead must view it as 'eved kena'ani.'  It  makes little difference whether the purchaser actually gave  the seller the handkerchief.  As long as a handkerchief was  received, the kinyan is effective.

Both the Ketzot and the Machaneh Efrayim listed broader  applications of the eved kena'ani principle.  In theory,  however, one might have distinguished between them.  The din  of eved kena'ani teaches us that, with respect to kinyan  kesef, receipt of funds is sufficient.  There is no basis to  assume a general rule which designates receiving as the  critical factor in other areas.  Therefore, the extrapolation  of the Ketzot whereby the din of eved kena'ani is applied to  chalipin is unfounded.  Furthermore, there is a logical  difference between kesef and chalipin.  Within the context of  kesef it is reasonable to dismiss the role of delivery while  highlighting the importance of receipt.  Payment of money is  meant to provide compensatory restitution that inspires the  seller to effect the transaction, and therefore does not  require delivery by the purchaser himself.  The extension to  chalipin, however, is somewhat questionable.  As stated in  previous shiurim, chalipin effects a meeting of the minds  which is cemented by a symbolic act, one that is mutually  accepted as an arbitrary symbol of consent.  It has little  objective meaning and merely establishes an agreement between  parties.  To effect this agreement we might demand a hand-off  between the parties themselves, requiring the direct  participation of both buyer and seller.  In this case, it is  more difficult to ignore the role of the purchaser.  In fact,  Rav Velvel (Chidushim on Shas Vol. V page 231) also considers  this difference.  Apparently, the Ketzot maintained that  chalipin is a form of kinyan kesef, and not a totally  independent kinyan. (This was discussed in the shiur dealing  with chalipin.)

Rav Chayim (Hilkhot Malveh Ve-loveh) also applies eved  kena'ani in a broader context.  Based upon a gemara in Bava  Metzia (71), he determines that if interest is paid on your  behalf, it is considered as if you rendered the interest.  The  principle of eved kena'ani illustrates that another's delivery  is considered as your own.  Here, 'eved kena'ani' does not  diminish the role of the actual delivery.  It merely reminds  us that the 'giving' can be executed by another, while you  remain its author.  What Rav Chayim does not clarify are the  terms or the definition of this agency.  To what extent does  it resemble conventional models of agency - namely shlichut  (or zakhin, which is assumed shlichut)?  Are we witnessing a  new model which is independent of shlichut, one that mandates  that the act of delivery is ascribed to another, even without  the formal category of shlichut?  On the one hand, Rav Chayim  admits to a special gezeirat ha-katuv for eved kena'ani which  establishes this principle.  This would lead us to believe  that it is a new halakha.  However, he also asserts that this  form of agency is unavailable to a Gentile, in the same manner  that formal shlichut doesn't apply.  This leads us to believe  that it is somewhat based upon shlichut.  A possible solution  to this problem is to view eved kena'ani as a new halakha  which doesn't work through the mechanism of shlichut, but is  nevertheless based on the general concept of shlichut in which  one Jew can act on behalf of another.  A Gentile who is  excluded from the entire concept of shlichut would therefore  be excluded from the din of eved kena'ani as well.  (This,  according to certain opinions, is how zakhin - the ability to  acquire for another - is related to shlichut).

In any case, what is clear is that unlike the Machaneh  Efrayim and the Ketzot, Rav Chayim does not diminish the  importance of the delivery.  Rather, he maintains that  another's delivery is ascribed to me.

One might view these two versions of 'eved kena'ani' as  the basis for an interesting controversy in the mishna in  Temura (29).  The law of etnan zona (payment for prostitution)  mandates that an item supplied as payment for prostitution  cannot be offered as a sacrifice.  What would happen if  another supplied payment to the 'zona'?  Would it be  considered as if the person engaging in prostitution actually  paid this item on behalf of the services?  The mishna in  Temura cites the position of R. Me'ir, who does not consider  this 'etnan,' and then that of the Chakhamim, who invalidate  this animal as etnan.  Might the Chakhamim have ruled like Rav  Chayim that another's payment is considered as yours?  In this  case, then, it would be considered as if the person himself  paid for the zona.

KIDDUSHIN MI-DIN EVED KENA'ANI

Before applying the din of eved kena'ani to kiddushin,  let us briefly review the source of this halakha.  According  to the Chakhamim we noted two interpretations: 1. Zakhin - the  ability for one to acquire for another in cases where the  benefit is clear-cut - Rashi.  2. Kabbalat rabo garma lo - the  formal act of giving on the part of the buyer is unnecessary - Ramban.

The application of zakhin within the context of kiddushin  is problematic, since kiddushin, as opposed to freedom of a  slave, cannot be assumed as beneficial.  Perhaps this man is  not interested in marrying this particular woman.  Ostensibly,  this is why Rashi was forced to interpret the case whereby the  giver is an explicit shaliach of the groom.  However, this  approach forces a secondary question: Why is it necessary to  derive this halakha from eved kena'ani?  How is it different  from a normal case of kiddushin through an agent?  A careful  reading of Rashi will show that eved kena'ani teaches us  something about the kesef - the money being used, not about  the ma'aseh kinyan - the act used to acquire ownership.  The  kesef needn't belong to the buyer - in our case the groom.  If  the shaliach would use his own funds it is sufficient.  (The  significance of this requires a review of the role of kesef  kinyan, which has been dealt with in previous shiurim.)

Another possible approach is that zakhin is not assumed  shlichut (which again cannot be assumed in the case of  kiddushin).  Rather, it is the ability for one Jew to acquire  on behalf of another without using the specific mechanism of  shlichut.  Similarly, we derive from eved kena'ani that one  Jew can give on behalf of another.  This corresponds to the  approach offered by Rav Chaim.

Both above approaches share a common understanding of the  ma'aseh kiddushin - the act required to create kiddushin.   Whether following the conventional pattern of shlichut, or,  like Rav Chayim, alluding to a new form of agency independent  of shlichut, they both share one common denominator: 'Eved  kena'ani' allows Shimon's actions to be considered as  Reuven's.  This sugya does not overturn the foundation of  masekhet Kiddushin - an act of netina from the husband is  still necessary.

One might speculate whether the alternate position is  even conceivable in the context of kiddushin.  Can one really  dismiss the need of the husband's actual delivery?  Is it  possible within the context of kiddushin to apply the idea of  kabbalat rabo garma lo?  The most explicit example of such an  attitude is found in the Mishneh La-melekh (Ishut 5:1).  He  cites the Radvaz who raises two related questions.  What if a  husband gives a woman something which is forbidden for him to  eat but permissible to her (such as any issur which cannot be  eaten but can be given to a deathly sick person)?  The husband  hasn't given anything of value (because to him the absolute  lack of utility renders the item valueless), but she has  received value.  Similarly, what if the husband transferred  funds which did not have a minimum worth of a peruta?  By the  time the funds were received, however, devaluations and market  fluctuations determined that the funds now had at least the  minimum value of a peruta.  In this case as well, though she  received funds, the husband did not deliver.  If we would  validate these cases, would we not conclude that kiddushin as  well does not require an active delivery on the part of the  husband, and receipt of funds by the woman is sufficient?  Of  course, one might accept these cases but still distinguish  them from our suggested case where another gives on your  behalf.  In these cases, the husband executed a delivery.   What he delivered, though, was halakhically valueless or  financially meaningless until they were received.  We might  consider this more of a netina than a case where the husband  participated in no actual transfer.

If we do accept this principle, however, we arrive at a  somewhat innovative concept of kiddushin.  The husband does  not have to actually give money as long as the woman receives  something on his behalf.  This must cause us to reconsider the  role of kesef itself.  Instead of imputing to it an active  role in creating the kinyan kiddushin, we might prefer to view  it as that which inspires the woman to marry herself to the  husband.

Summary:

We have seen that the rule derived from 'eved kena'ani'  can be understood in two ways: 1. Another's actions may be  attributed to me, or 2. No official act of giving is required.  Most Rishonim explain that kiddushin may be effected by using  this principle, based on the first understanding.  The Radvaz  quoted in the Mishneh La-melekh, however, could be raising the  possibility that the rule of 'eved kena'ani' teaches us that  no giving at all is necessary in kiddushin.

 Next week's shiur will be on Shirai - shveh kesef, part 2.

Sources for next week's shiur:

Kiddushin 7b "Hahu gavra ... bi-tleisar"; Tosafot s.v. Mana;  Rashi 3b s.v. Lo miknia.

[Rambam Hilkhot Mekhira 29:9 and Ra'avad  29:8 in the second  part.]

Questions:

A. Lishna kama: Whose sevara is the more problematic, at first  glance, Rabba or Rav Yosef?  What is the problem of samkha  da'atah and does it apply to mekach u-mimkar as well? B1. Lishna batra: Try to understand the machloket between  Rabba and Rav Yosef in light of the machloket between the  Rambam and Tosafot regarding shveh kesef. B2. Will Rav Yosef require ketzitza in nezikin, or is it  restricted to kiddushin and pidyon ha-ben? [B3. What ramifications does the sugya have for pidyon ha-ben;  see Rashba s.v. Amar Rav Ashi; Rambam Hilkhot Bikkurim 11:7  (Avnei Milu'im 31:3).]