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The Israel Koschitzky Virtual Beit
Midrash
GEMARA KIDDUSHIN 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
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 should 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 among the Rishonim as to the extent of the
subjectivity allowed. Our remarks
follow only one of the positions (Bikkurim 11:7). 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 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
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
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
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? |