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.                             

***

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?