The Dispute Concerning Eidei Chatima and Eidei Mesira

One of the most seminal disputes in Shas concerns the production and issuance of a shetar. Of particular importance is the makhloket regarding which witnesses are “primary” and which are secondary (and probably optional/unnecessary). R. Meir claims that the actual signatories of the document are critical (eidei chatima karti), whereas R. Eliezer claims that the witnesses who attend the delivery of the shetar are more significant (eidei mesira karti). This series of several shiurim will suggest three very different approaches to understanding this machloket.

Intuitively, R. Meir's position seems to make sense. To produce a shetar, eidim must append their names to the document – eidei chatima karti. How can we logically explain R. Eliezer's position?

Rashi (Gittin 23b) claims that the eidei mesira are necessary according to R. Eliezer to validate the geirushin or kiddushin process – in other words, as eidei kiyum. Monetary interactions may be performed in private, but divorce and marriage must be performed in the presence of two witnesses. As the gemara asserts "ein davar she-be-erva pachot mi-shnayim" – changes to a woman's marital status require two attending witnesses. Even if there is no disagreement about the gittin or kiddushin, the PROCEDURE is halakhically invalid in the absence of attending witnesses. Based on this formal requirement, R. Eliezer demanded eidei mesira to witness the actual delivery of a get or shetar kiddushin.

      This approach raises two questions:

1)    Why would R. Eliezer require eidei mesira for monetary contracts? A shetar kiddushin or get requires attending witnesses because of the change in erva status; monetary contracts do not require eidei kiyum, and should accordingly not demand eidei mesira!

2)    If R. Eliezer's edei mesira demand is based on something so basic as the eidei kiyum requirement of gittin and kiddushin, how could R. Meir NOT demand eidei mesira? Doesn’t R. Meir concede the eidei kiyum condition regarding a shetar kiddushin or get?

            In order to answer the first question, we must locate a logic that would mandate eidei kiyum for monetary shetarot even though MOST ORDINARY monetary transactions do not demand eidei kiyum. Perhaps a precedent for this deviance lies in an interesting position of the Ra'avad regarding the kinyan of chalipin.

            The gemara in Bava Batra (40a) states that "chalipin bifnei shnayim" – a kinyan chalipin requires two witnesses. Despite the simple meaning of this gemara, most Rishonim (most prominently Rabbenu Tam in his comments to this gemara and to Kiddushin 65b) claim that chalipin operates as typical monetary transactions do, and therefore does not require eidei kiyum. The Ra'avad (cited by the Shita Mekubezet to Bava Batra), however, claims that kinyan chalipin is unlike other kinyanim and DOES require eidei kiyum to be viable. The Ra'avad explains the need for eidei kiyum due to the arbitrary nature of kinyan chalipin. Most acts of kinyan physically demonstrate the new ownership (pulling an animal, repairing land). In contrast, delivering a handkerchief to the seller does not demonstrate changed ba'alut per se; it is an arbitrary act that consummates the kinyan. In R. Chaim's terminology, it is a pure kinyan da'at – a kinyan primarily driven by common agreement that is conveyed by a physical action. Since the primary force of the kinyan is the mutual agreement, it must be bolstered by eidei kiyum. (How exactly eidei kiyum bolster the kinyan da'at is itself an interesting question, but beyond the scope of this shiur).

            The Ra'avad's position about chalipin may serve as precedent for a monetary transaction that nevertheless requires edei kiyum. Perhaps R. Eliezer suggests a similar logic about kinyan shetar. There are many models of understanding the mechanism of a shetar, HOW a contract effectively transfers ownership. Perhaps R. Eliezer conceived of a shetar in the same manner that the Ra'avad and R. Chayim conceived of a kinyan chalipin – the action per se has no significance or symbolism; the transfer is accomplished purely through the agreed da'at or gemirut da'at of the two parties. The purpose of the shetar is merely to capture and demonstrate the common agreement, but the AGREEMENT ITSELF is what facilitates the actual transfer. Accordingly, perhaps this kinyan of pure gemirut da'at may require eidei kiyum in the same fashion that chalipin requires eidei kiyum according to the Ra'avad.

To summarize: The first manner to explain Rebbi Eliezer's insistence upon eidei kiyum would be to associate eidei mesira with eidei kiyum. All ishut-based transformations require two attending witnesses and therefore Rebbi Eliezer required two eidei mesira.

Of course this perspective raises the second aforementioned question: how did Rebbi Meir respond and why didn’t he similarly require eidei mesira as eidei kiyum. Does he not concede that erva "events" require eidei kiyum?  This question will be addressed Iy"H in the ensuing shiur.