SHIUR #12: SHIRAI                 by Rav Mosheh Lichtenstein

 The sugya of shirai (silk) (7b-8a), unlike many of the  previous sugyot, does not deal with the abstract foundations  of kiddushei kesef (marriage through money), but rather with  the practical application of previously established concepts.   Technique, not theory, is its focal point.  The issue under  consideration is whether or not there is a need to assess the  value of an object, prior to its use as shveh kesef (an object  replacing money) in kiddushin.  This is of obvious practical  concern, as the story in our sugya illustrates, and is  therefore dealt with by the gemara.  The theoretical  significance of the question, though, is unclear.  Is the  disagreement between Raba and Rav Yosef regarding the need for  assessment merely a case of differing psychological estimates  as to the depth of the woman's agreement or, perhaps, their  differing opinions reflect a more basic disagreement as to the  nature of shveh kesef or kiddushei kesef.

Methodologically, we are confronted here by the classic  dilemma of whether the details are indicative of a certain  approach to the basics of the issue or are they really no more  than what they seem to be - unassuming technical details of no  particular importance aside from their practical significance.   While it is clear that the latter possibility clearly exists  and must be taken into account, an answer regarding the former  can be given only after examining the sugya and its nafka  minot (ramifications) in light of the other relevant  discussions in the gemara.  In our case, this will mean  returning to the sugya of shveh kesef, the various  understandings presented there, and applying them to our case.   We shall now proceed, therefore, to analyze the gemara's  discussion (shakla ve-tarya) basing ourselves upon the shiurim  which were given on kiddushei kesef, in general, and shveh  kesef, specifically (see shiur #3 -ed.).  Let us, therefore,  proceed directly to the actual text without further ado.

                            A.

The gemara's starting point is a real-life occurrence, in  which someone gave a woman a silk cloth as a means of  kiddushin, and the debate (machloket) between Raba and Rav  Yosef as to the accompanying conditions necessary to allow  this marriage.  Raba required the cloth to be assessed, while  Rav Yosef claimed that there is no need for such action.  The  gemara raises two possibilities as to the exact circumstances  of the case.  According to the first approach (lishna kama) if  the woman provides explicit consent to accept an item of any  value, the kiddushin are clearly valid without assessment  providing the cloth is worth more than a pruta.  If, on the  other hand, the groom fails to provide the agreed upon value,  it is clear that the kiddushin are worthless (excuse the pun).   Thus, the machloket must be in an intermediate case - where  there was insistence upon a specific sum to be provided, and  that the terms of the agreement were fulfilled.  Raba makes  what would seem to be the obvious claim - that since there is  compliance with the conditions which were demanded, the deal  is complete and the kiddushin are valid.  The logic is  compelling and it is hard to see any flaw in it.

Rav Yosef's opinion, however, is problematic.  He says  that the object must be professionally assessed prior to the  kiddushin, because the woman may be unaware of the object's  value and her assent will therefore be grudging and  incomplete.  Since the object is actually worth what was  promised and there is no denial or regret as to their initial  understanding, why doesn't her consent retain its validity and  why must the assessment be known to her at the time of the  transaction?  If the agreed upon conditions have been  fulfilled, as can be easily verified afterwards, the kiddushin  should be recognized even if the information is provided ex  post facto.

To understand Rav Yosef's position, we have to return to  the query, dealt with in previous shiurim, as to the nature of  kiddushei kesef.  If the role of the money in kiddushei kesef  is to serve as an agent of acquisition, providing value in  exchange for an object as in monetary transactions, the  kiddushin should be valid when using an object in lieu of  cash, even if it has not been assessed prior to the act.  For  if the desired value has been provided, the exchange mechanism  has thereby been accomplished and the deal is a deal.  This is  certainly so in the case of an ordinary monetary transaction -  where there is no known requirement of prior assessment - and  be the din regarding kiddushin as well.

Thus, Rav Yosef must be understood as assuming that the  monetary element involved in kiddushin is not performing the  same role as it does in commercial affairs.  The purpose of  the monetary transaction is not for its exchange value, but  for the psychological affinity and acceptance which it  expresses.  The man's willingness to give the money, and his  prospective wife's acceptance of his goodwill, establish a  relationship between them, which is utilized to achieve  kiddushin.  Actually, the money involved resembles more of a  gift than a means of payment, and, one is tempted to add, is  better represented by the wedding ring than by a coin or bill.   Therefore, what is required is not acquiescence to a formal  legal agreement, which is binding even if the compliance to  the conditions stated is clarified ex post facto, but rather  inner emotional conviction which has to exist at the time of  the actual handing over of the object.  To state the same  point differently, what matters in a commercial exchange is  the result and not the process, while in kiddushin, since the  money serves to express affinity and attachment, the emphasis  is upon the actual act and the moment of giving and not the  resultant monetary implications.  Any doubt in the bride's  mind at the time of the kiddushin, even if eventually  clarified, is fatal to the kiddushin, since she lacks  conviction when the mutual commitment is established.  To use  Rav Yosef's phrase, 'lo samkha da'atah' (lit. she does not put  her mind at rest), which should be understood as signifying  that she is not giving this form of personal consent; she, not  her accountant, must express agreement.

The above understanding of Rav Yosef's ruling is evident  in Tosafot's exposition of the gemara, further on in the  sugya.  The gemara quotes Rav Yosef as providing a source for  his opinion from a beraita which states that the kohen must  estimate the monetary value of an object which he receives for  pidyon ha-ben (redemption of the firstborn).  The  circumstances of the case, as the gemara interprets the  beraita, is that the object is worth LESS than the required  value, yet the kohen can claim that he personally values it at  a greater value than its market price.  In other words, the  determining factor is the subjective worth of the object  rather an objective evaluation.  Even though this can be  understood as a more subjective approach to value in general,  in light of the above it seems more appropriate to relate it  to the previous point.  The monetary element is not serving in  a commercial capacity (in which case there would be an  official rate), but as a token of regard which is dependent  upon his personal acceptance.  [Three qualifications must be  added to this claim: a. There is a machloket between the  Rambam and Rashba as to the extent of the subjectivity  allowed.  Our remarks follow the Rambam's approach (Bikkurim  11:7).  B. Other Rishonim, unlike the Tosafot, explain this  passage as relating to the lishna batra (second approach); if  so, as indeed is the simpler reading of the sugya, the entire  discussion is irrelevant to us.  C. The application of these  concepts to pidyon ha-ben is highly problematic - see Avnei  Miluim 31:3.]

Before concluding our discussion of the lishna kama, the  following points should be added.  1. Raba does not  necessarily disagree with Rav Yosef in principle; it is quite  possible that he accepts Rav Yosef's position regarding the  nature of kiddushei kesef, yet is unconcerned that the woman  will be unaware of the real value, and, therefore, he does not  require assessment.  2. Conversely, Rav Yosef may admit that  kiddushei kesef are also a transaction, and function as both  personal and acquisitive kiddushin.

                              B.

The latter approach in the sugya (lishna batra) pinpoints  the disagreement between Raba  and Rav Yosef as a debate  regarding the nature of the money employed to achieve  kiddushei kesef.  The opening mishna of the masekhet states  that kiddushei kesef include not only actual money in the form  of coins, but also goods equivalent in value to a pruta (Shveh  kesef ke-kesef).  Shiur #3 in this series, which dealt with  the topic of shveh kesef, suggested three possible approaches  to the concept of kiddushei shveh kesef.  The first one,  attributed to Tosafot, viewed shveh kesef as an expansion of  the cheftza (object) of kesef.  Kiddushin are achieved by  giving the bride an object of a monetary nature, such as coins  or cash.  The essence of the kiddushin, though, is not the  transfer of value involved in the transaction, but the  symbolism of purchase embodied in the handing over of the  pruta.  Therefore, the use of actual currency may be necessary  to express the symbolic element; for though all goods have an  inherent value which is capable of exchange, the basic  definition of an object - which is the determining factor  regarding symbolic use - is in reference to its nature as a  specific article and not as an agent of value.  Thus, if we  maintain the symbolic view of the act of kiddushin (see shiur  #3 for a more complete presentation), it reasons, me-sevara,  that a coin is valid for kiddushin, while other objects will  not be able to serve this purpose, unless the Torah will  expand the category of a monetary object.  This is exactly  what the halakha of shveh kesef does, according to Tosafot.   The Torah provides a special source which sanctions the use of  commodities as a monetary object, even in those areas, such as  kiddushin and pidyon ha-ben, where currency is required.

This transformation of an object from an artifact to a  monetary object, is the issue which concerns Rav Yosef.  For  though the halakha of shveh kesef determines that such a  metamorphosis is possible, the rationale is unclear.  If the  defining element of an item is its primary usage as an  individual article, the inherent value within it should not be  able to transform it into money.  Therefore, Rav Yosef rules  that assessment is required to enable the transition of a  plain object to a cheftza of kesef.  If the object is  unchanged, it will retain its basic identity as an object and  cannot be considered as currency.  The process of assessment,  however, affects a change; by affixing a price tag to the  object and relating to its value, the relationship between  utility and value is altered.  It is no longer only an object  whose functional use defines its basic nature, but also a form  of currency measured in dollars and cents.  The act of  assessment, by focusing upon the monetary element, changes the  very nature of the object and allows us to redefine it as a  form of money.  Therefore, it is a basic mechanism essential  to the application of shveh kesef, and is not, as in the  lishna kama, a mere inquiry to determine unknown value.

A second approach to shveh kesef is to assume that  kiddushei kesef do not require an actual object of money.   Rather, any transfer of a pruta's value from the groom to the  bride is satisfactory for purposes of kiddushin.  This can be  directly achieved by use of cash or, secondarily, by utilizing  the value inherent in every object in lieu of money.  The use  of commodities as an agent of kiddushin is - according to this  understanding - simply an additional form of payment to  achieve the desired monetary transaction between the two  parties.  Such an understanding, which is consistent with  Ramban's opinion that the parties' agreement suffices to  legitimize the use of shveh kesef, even without an explicit  textual source, will account for Raba's psak that assessment  is unnecessary.  Since the real inherent value which resides  in every object is sought after, and not a symbolic item -  there is no need to redefine the object in order to realize  its value and, therefore, assessment is not required. 

The third alternative suggested in the previous shiur to  explain the use of shveh kesef assumed that kiddushin have a  dual track; the first one is monetary kiddushin, an act of  acquisition brought about by the use of coins or cash to  transfer the designated value from the man to the woman, while  the other option is kiddushin which are created by means of  establishing an interpersonal relationship.  The second model  of kiddushin utilizes shveh kesef, not as a form of payment,  but as a token of alliance and association, which expresses  their mutual understanding and willingness to give and  receive.  This, too, conforms with Raba's ruling that  assessment is unnecessary.  Since it is the object as such  that interests us, there is clearly no need for an assessment  to establish value as the main element involved in the  kiddushin.

Thus, Rav Yosef's opinion that assessment is required in  cases of shveh kesef develops the concept of shveh kesef as an  expansion of the object of kesef, but is seemingly  incompatible with other understandings of shveh kesef.  Raba,  on the other hand, is easily understood if shveh kesef is  treated either as a non monetary object or if value per se is  sufficient, and not only an object whose essence is the  explicit expression of value.

The conclusion of the above discussion is that the debate  between Raba and Rav Yosef in our sugya seems to correspond to  the machloket between Ramban and Tosafot in the mishna of  shveh kesef.  Regarding Rav Yosef, this would indeed seem to  be so; his opinion is eminently logical within the context of  Tosafot's approach and highly problematic according to Ramban.   Conversely, Raba is certainly more convincing when approached  from Ramban's perspective, be it either of the two possible  explanations.  This, however, poses an obvious problem.  Since  the gemara explicitly decides in Raba's favor that assessment  is unnecessary, the inescapable conclusion is that Ramban's  position must be accepted and Tosafot's opinion rejected.   Therefore, the following point must be made.  Indeed, Raba is  better understood according to Ramban's concept of shveh  kesef, and, presumably, Ramban himself took this into account  when formulating his opinion.  Tosafot, however, must assume  that Raba is fundamentally accepting Rav Yosef's conceptual  understanding of shveh kesef and disagreeing with him only as  to the practical need for an act of conversion to create a  monetary object.  Raba's ruling can therefore be accepted,  while simultaneously Rav Yosef's conceptual understanding.

In the course of the sugya, Rav Yosef attempts to justify  his opinion by citing sources regarding the release of an eved  ivri (Jewish slave) and pidyon ha-ben which seem to imply that  assessment is necessary.  This, however, is appropriate only  if the need for money in both these areas is similar to  kiddushin, i.e. that a formal object of money is required and  not the transfer of value per se.  The gemara rejects these  proofs by explaining the quoted sources in such a manner that  they do not require assessment.  What is left unclear, though,  is the rationale behind this rejection.  Is it due to  acceptance of Rav Yosef's premises as to the nature of the  monetary element in these halakhot and disagreement regarding  the need for assessment to create a monetary object, as  Tosafot understand Raba, or do we have here additional  machlokot relating to pidyon ha-ben and eved ivri vis-a-vis  function of kesef in their system?  Though the first  possibility provides a smoother reading of the gemara, the  alternate understanding is also possible.  What is clear,  though, is that the issue of assessment in these cases must be  based upon certain premises, based upon the principles  developed above within the limited context of kiddushin.

Summary:

In conclusion, let us return to our starting point.  Raba  and Rav Yosef disagree as to the need to assess an object  which is given for the purpose of kiddushin.  The lishna kama  presents this as a debate regarding the level of the  receiver's knowledgeable consent.  Is the argument between the  amoraim due to different factual estimates regarding women's  knowledgibility in these matters, or does it reflect a more  basic difference of approach regarding kiddushin?  While, the  possibility that it is no more than a local disagreement  cannot be ruled out, we have attempted to demonstrate that the  two differing opinions may represent divergent conceptual  understandings of kiddushei kesef.

The lishna batra, though, which represents Rav Yosef as  requiring a legal mechanism of conversion for shveh kesef,  certainly presents us with a conceptual legal issue and not a  psychological one.  The fundamental question dealt with by the  two amoraim is an issue which we have already dealt with in  the context of the mishna; what is added in this sugya is a  sharp illustration of the monetary approach to shveh kesef, as  expressed in Rav Yosef's ruling.  Raba's position, which the  gemara (9a) adopts as halakha, is amenable to both viewpoints  regarding shveh kesef, thereby enabling the Tosafot and Ramban  to carry on the debate a millennium later.

 Next week, we will discuss the topic of "mekadesh be- mashkon" (8a-b until "... priti ein ken, nas'cha ein kan").   The sugya has two distinct parts; first, the use of a surety  given by the groom to the bride, and second, the transfer to  the bride of a surety given to the groom by his debtor.  The  main Rishonim to see, other than Rashi and Tosafot, are the  Rosh (1:10), and the Ramban (s.v. Maneh).

Try to answer the following questions:

1. What is the nature of the deficiency in mekadesh be- mashkon - is it a kiddushin problem or one in the monetary  aspect of the transaction?

2. What is the difference between the groom's surety and  his transfer of someone else's?

3. What does it mean to say that a creditor "owns" a  surety?