Shiur #12: Shirai

  • Harav Mosheh Lichtenstein

 

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 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?