SHIUR #14: T'na'em Al Gabi Sela - The Scope of Arevut Based on shiurim by Reuven Taragin
I) The Gemara's Distinction
The gemara (8b) states that if a man offers a woman kesef kiddushin, the marriage is effected only if the woman responds "T'na'em al gabi sela sheli" (place the money on my rock), but not if she responds "T'na'em al gabi sela" - (place the money on a rock (not owned by her)). The Rishonim offer varient explanations as to why in this case the rock must be owned by the woman.
1) Woman's Intent (Tosafot)
According to Tosafot (s.v. Im) there is no actual requirement that the rock be owned by the woman. The woman's statement "place the money on a rock" is interpreted as a rejection of the marriage proposal. In a situation where her consent was clear, such as in a case in which she initiated the process, the kiddushin would be valid even if the money were placed on a rock which she did not own.
The Ritva (s.v. Tanu) bases Tosafot's assumption, that placement on any rock qualifies as a ma'aseh kiddushin, on the principle of arevut (the responsibility of a guarantor) which the gemara earlier (7a - see Shiur #10) applies to kiddushin. Since arevut applies to a situation in which "money was laid out at another's request," our case, where the placement of the money on the rock is in compliance with the woman's request, falls under the arevut rubric. The bride obligates herself to the groom because he fulfilled her wishes and put the money on the stone, just as a guarantor obligates himself to pay the loan, when the lender gives the money to the borrower.
2) Ma'aseh Kiddushin (Rashi)
Rashi (s.v. Ve-im) explains that placing the money on her rock qualifies as a ma'aseh kiddushin because "it is as if the money were given to her." Her rock can be seen as her chatzer (courtyard); we can, therefore, apply to it the principle of "chatzero shel adam kona lo le-adam" - ones property can acquire an object (that has fallen into it) on behalf of it's owner. (Bava Metzia 10-11.)
Since only her rock can qualify as her chatzer, though, placement on any other rock can not constitute a ma'aseh kiddushin. Thus, in contrast to Tosafot, according to Rashi, even if her intention to marry were perfectly clear, the kesef kiddushin must be placed on her rock.
II) Application of Arevut to "T'na'em Al Gabi Sela"
Obviously, Rashi does not accept Tosafot's assertion that the concept of arevut can be applied to such a case. It seems that Rashi distinguishes between a case in which the request fulfilled was to give money to another and one in which it was to place money on a rock.
The Ramban and Rashba, while justifying Rashi's assumption that arevut can not apply here, give different explanations for the significance of what is done with the money. The two explanations, and the responses of other Rishonim to them, reflect divergent perceptions of arevut. The remainder of this shiur, then, will deal with these understandings of arevut, and their application to kiddushin.
A) Responsibility for an Engendered Loss
The Ramban (s.v. Hayta) explains that an arev's (guarantor's) responsibility is rooted in the loss suffered in the fulfillment of his request (see also Ritva Bava Metzia 74a). In our case, however, "she has not taken and he has not lost a thing - let him retrieve his money (after having placed it on the rock) and go." Arevut binds one who took responsibility for a loan through which money was irrevocably lost; it cannot be applied to our case in which the money can easily be retrieved.
Do we need to conclude that Tosafot, who apply the principle of arevut to our case, disagree with the need for the money to be irretrievable? Isn't the Ramban correct in asserting that one should not be responsible if no loss was suffered? The Ritva agrees with the Ramban's assertion, but disagrees with his application of it to the case of sela. "One who requests that money be placed on a rock, which is a 'makom ibud' (place where the money is considered lost), IS responsible for the funds placed there in response." (As mentioned above, the Ritva, like Tosafot, understands the problem in the sela case to be merely the lack of intent).
These divergent opinions are not merely the result of the inherent difficulty in deciding what constitutes "loss;" they are, rather, reflective of two different perceptions of arevut. Since the Ramban bases the arev's responsibility on the engendered loss, the responsibility exists only when the money is indeed lost. The Ritva, however, does not see the creation of the responsibility as directly linked to the loss, but, rather, to the hana'a (pleasure) the arev receives from his request having been fulfilled (see also Ritva 7a). The Ritva requires that the money be placed in a "makom ibud" only so that the action be meaningful enough to induce sufficient hana'a.
The Ramban, who requires loss as an end in itself, recognizes only those situations in which the loss is actually incurred. The Ritva, though, who sees loss as merely a means of intensifying the action's significance, can include situations which merely indicate a willingness to forfeit property on demand.
B) Imagined Vicarious Reception
While the Ramban challenges the significance of the action performed by the giver of the funds, the Rashba (s.v. Im) focuses on the status of the receiver. The Rashba (s.v. Ha) assumes that in order for kiddushin to be created, the woman must actually receive the money (or some tangible hana'a). Arevut applies to kiddushin only because we imagine the reception of the money by the receiver to be paramount to actual reception by the arev. (See also R. Chananel 7a.) Thus, arevut is relevant only in situations where this fiction is plausible.
The Rashba feels that the feasibility for such a perception hinges on the money being received by a "ben zekhiya" (one of the age and mindset that make it halakhically possible for him to acquire objects). Thus, arevut cannot be applied to our case where money is placed on a rock.
Although Tosafot in Bava Metzia (57b s.v. Le-sapeik; 71b s.v. Matzu) concurs with this understanding of arevut, we do not need to conclude that Tosafot in Kiddushin, who includes the case of sela under the rubric of arevut, disagrees with the Tosafot in B.M. (This conclusion is not altogether impossible, however, in light of the fact that the Tosafot on various masekhtot were authored by different individuals.)
In other words, the Rashba's assumption of the need for a ben zekhiya does not necessarily flow from the perception of arevut as an imagined vicarious reception. Tosafot might accept this view of arevut, but disagree with the Rashba regarding which circumstances justify it's application. This possibility can be better understood upon closer examination of the basis for the Rashba's ben zekhiya requirement.
As a source for the requirement, the Rashba quotes the Yerushalmi (Kiddushin 2:1) which seems to understand that arevut is based on the arev actually receiving the loan; the borrower acquires the money on behalf of the arev and only subsequently receives it from the arev. Similarly, kiddushin is effected because, before acquiring the money for himself, the receiver acquires it on behalf of the woman. The Yerushalmi seems to believe that the receiver actually acquires the object on behalf of the woman. The Rashba feels that this understanding is too extreme. It needs to assume both the definitive consent of the receiver and that it is possible to see one reception as, in essence, two receptions of two sorts - the first - kiddushin, and the second - a loan.
The Rashba, therefore, explains that the Yerushalmi does not mean "that the receiver actually acquires the object on the woman's behalf ('zokheh mamash'), but, rather, that the Torah views the reception as, vicariously, the woman's ('asa'uhu ke-zokheh la-isha')". Once we establish that we do not require an actual acquisition on the women's behalf, but can imagine a vicarious reception, the key question becomes whether the receiver still needs to meet any criteria.
The Rashba claims that a vicarious reception can only be imagined in a situation where a vicarious acquisition could, potentially, have been executed. Since only a ben zekhiya can actually acquire an object on another's behalf, only a ben zekhiya can be imagined to have done so as well. No less then the presence of a ben zekhiya can provide us with the substantive basis necessary for imagining a vicarious reception.
It might be regarding this point, the need for a substantive basis in the form of a ben zekhiya, that Tosafot disagree with the Rashba. Beyond assuming the 'imagined vicarious reception' view of arevut, the Rashba makes two additional assumptions: that this view requires a substantive base in reality, and that the base take the form of a ben zekhiya receiving the money. Tosafot could reject either of these two assumptions:
1) The Need for a Substantive Base
The Tosafot Rid (s.v. Al, Ve-im) rejects the first assumption - the need for a substantive base in reality. He asserts that we can consider the placement of the money "in any place it has been placed at the women's behest as if it has actually been placed in her hand." With this assertion, the Rid rejects the Rashba's claim that the vicarious reception principle hinges on the receiver's actual potential to acquire on the woman's behalf. For the Rid, we are dealing with an absolute fiction which requires neither a ben zekhiya, nor any other realistic basis.
2) The Definition of Substantive
The Shita Lo Noda Le-mi (s.v. T'na'em) maintains a more moderate view. He accepts the first of the Rashba's assumptions - the need for a substantive base, but argues that an actual ben zekhiya is not required.
The Shita builds off the mishna's ruling (Bava Metzia 80b) that one's responsibility for an object he has agreed to watch commences upon the object's reaching the place he specifies.
He extrapolates that "just as an object placed where one has requested is considered to have entered into a domain within which he is responsible for it ("nikhnasu be- shmiratah"), similarly, in our case we consider the object to have entered into a domain of her care and it is as if she has received it." For the Shita, the imagined vicarious reception is rooted in the object's having entered into her domain of care.
(The Shita's assumption that we can conclude from the mishna that we view the object not only as having entered into a domain of her care, but as having been actually received by her reflects a second assumption - that a shomer's (guardian's) responsibilities are rooted in having the object in his property. The issue of the basis of a shomer's responsibilities is discussed at length by the commentaries in the sixth chapter of B.M. and on Kiddushin 48b.)
Tosafot in Kiddushin, therefore, might agree with Tosafot in Bava Metzia's and the Rashba's understanding of arevut, yet disagree with the Rashba's demand for a ben zekhiya. Tosafot could do so by totally rejecting the need for a substantive base for the imagined vicarious reception (like the Tosafot Rid), or by claiming that the substantive base need not be in the form of a ben zekhiya (like the Shita).
III) Summary
Rashi and Tosafot suggest two explanations for the difference between "sela sheli" and "sela". Tosafot assume, based on the principle of arevut, that placement on any rock could potentially create kiddushin; in the gemara's case, where she is responding to him, and not initiating, such an action does not create kiddushin only because we assume that she does not consent. Rashi, however, assumes that placement on a rock that is not owned by her cannot constitute a ma'aseh kiddushin.
The Chakhmei Sefarad (Spanish Rishonim) give two justifications for Rashi's assumption that arevut does not apply to placement on a rock. The Ramban, assuming that an arev's responsibility is linked to the loss he has caused, explains that placement on a rock does not constitute loss. The Ritva, who does apply arevut to our case, agrees that the potential for loss is an essential component in the creation of the arev's responsibility, but since he sees loss as only a means of intensifying the benefit one gains from the action, he accepts even the potential for loss.
The Rashba asserts that arevut exists only because, and, therefore, only when, we can view the reception of the money as having been, vicariously, that of the arev. This, he adds, is possible only when we have realistic substantiation for the fiction in the form of a receiver who is a ben zekhiya. The Tosafot Rid and Shita Lo Noda Le-mi both deny the need for a ben zekhiya: the Tosafot Rid because he rejects the need for substantiation, the Shita because he denies that the substantiation need be in the form of a ben zekhiya.
Sources for next week's shiur:
1) Kiddushin 9a "Tanu Rabbanan" until the colon. Does the question of who has to give the shtar indicate something about the nature of kinyan shtar? Is the evidence contained in the shtar crucial to the change in ownership effected by transferring the shtar?
2) Kiddushin 48a "Kegon she-kidshah bi-shtar" until "Eidei mesira kartei" (3 lines) with Rashi s.v. Bi-shtar and s.v. Kartei. Is the kinyan shtar dependent on the ability to use the shtar as proof of the sale? What might the differing views of R. Meir and R. Elazar indicate about the nature of a shtar?
3) Is a shtar kiddushin an example of a regular shtar kinyan or not? Does this depend on who gives the shtar?
4) Kiddushin 9a "Ba-i R. Shimon" until the colon on 9b. To what extent does a shtar kiddushin have to be similar to a get? Is a get in essence a regular shtar? The necessity of including names in a shtar kiddushin: Ramban Kiddushin 9a s.v. Bein (at least from "od yesh lefaresh"). Ritva Kiddushin 9a s.v. Amar Rava (towards the end) "U-leinyan shemo u-shma." Mechubar: Rashi Gittin 10a s.v. Hakhi Garsinan until "Itkish havaya le-yitzia;" Rashba, Responsa vol.1, no. 600. Issurei hana'a: Rashba, Responsa vol.1, no. 203; Ran Responsa no. 55 stating "ve-af al pi;" Avnei Miluim siman 139, paragraph 13. Ktav yado: Rashba Yevamot 31b s.v. Ha De-amrinan or Rashba Kiddushin 65b s.v. Amra Lei Rav Ashi starting from "u-mistabra li;" Ritva Kiddushin 9b s.v. Batar starting "ve-khol she- mekadesh."