Kidushin with a Shtar

Kidushin (1:1) | Yisrael Bankier | 11 years ago

This week we made the transition from masechet Gittin (divorce), to masechet Kiddusin (first stage of marriage). The new masechet opens be discussing the ways of performing kiddushin. See Volume 3, Issue 38 for an introduction to kiddushin and theses forms of “acquisition”. One of the methods, a shtar (contract), connect us to the masechet we just completed. The Gemara (5a) questions the source of shtar being a valid means. The Gemara answers that when the Torah teaches regarding divorce “…and she leaves his house (by way of divorce) and goes [and marries] another man” (Devarim 24b) it connects marriage and divorce. Consequently since divorce can be effected by way of a document, so can kidushin.¹ We shall explore some of the implication of this hekesh (textual connection).

The Ketzot HaChoshen (200:5) notes that there is a difference between contracts used in financial transactions and a get. The Gemara (Gittin 20a) explains that a get can be written on an issur hana’ah – an object from which one is forbidden to gain any benefit. This is not the case with financial documents. 

The Ketzot explains that with respect to financial contracts the receiver must acquire the document (zechiya). The transfer of ownership occurs once the document is belongs to the receiver.Zechiya does not apply to an issur hana’ah. Gittinhowever is fundamentally different. Since a get can be handed over ba’al korcha (forcibly) the concept of zechiyadoes not apply. With respect to a get it need only be placed in her hand (“ve’natan be’yada”). Consequently a getcan be written on an issur hana’ah.²

Returning to kiddushin, the Ketzot cites the Chelkat Mechokek who explains due to the hekesh cited above, a shtar used for kiddushin could also be written on an issur hana’ah. We find therefore that the hekesh not only teaches that a contract can be used but also how that contract takes effect.

There is however a dissenting opinion. The Gra (Even HaEzer 32:1) explains that the Rashba rules that if the object were an issur hana’ah on a biblical level, then its use would be forbidden for a shtar kiddushin.

The Avnei Miluim explains that despite the hekesh, only a get can be written on an issur hana’ah since, as we have explained, a get can be give ba’al korcha. Kiddushin however requires her consent and therefore she must acquire the shtar and an issur hana’ah cannot be used.³ 

¹ See the Gemara inside for source of the other forms of kiddushin and the limits of this hekesh.

²The Ketzot uses this distinction to answer another question. He asks, can someone place a contract gifting a house to his friend and declare that he is giving his friend the house along with the document inside. Is it a valid transaction? With respect to Gittinwe find that the even though a husband owns his wife’s possessions, when a get is handed over we say “her hand and get are transferred simultaneously”. Can we say in this case that the land and document are transferred simultaneously? The Ketzot says that it cannot since the receiver must first acquire the contract before the land can be transferred. (The suggestion relies on the land belonging to the receiver for the contract to be transferred – it is circular.) With Gittinhowever, the getneed not be acquired first, just placed in her hand, therefore we can say gita ve’yada ba’in ke’echad. 

³ One possible way of explaining this debate might be to ask whether the fact that a get can be given ba’al korcha is symptom or cause of whether an issur hana’ah can be used. According to the first understanding presented, it appears that the fact that a get can be give ba’al korach is a symptom of the fact that this type of status change does not require that the contract be acquired by the receiver to take affect; it need only be placed in her hand. This document is in a different class. The hekesh therefore teaches that role of the contract in kiddushin is the same – simply handing of the document can affect that change.

According to the second understanding, once we say that a getcan be handed over ba’al korcha the requirement that the receiver acquire the contract falls away. It is the same class of document, yet with different technical requirements. The hekesh therefore only teaches that a contract applies to the world of kiddushinand since it cannot be given ba’al korcha an issur hana’ah cannot be used.

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