Tuesday, December 25, 2007

Eidi Mesirah/Chasima Karti 2

ז] כיצד בשטר: כתב לו על הנייר או על החרס או על העלה שדי נתונה לך, שדי מכורה לך--כיון שהגיע השטר לידו, קנה: ואף על פי שאין שם עדים כלל, ואף על פי שאין השטר שווה כלום

This Rambam is based on a baraisa in Kiddushin 26a. However, offhand the Rambam's lashon is strange. It sounds like if one uses a shtar to acquire land, the shtar works with no eidim whatsoever! We know there is a machlokes between R' Eliezer and R' Meir as to whether a shtar needs eidi chasimah or eidi mesirah (see this post), but nobody says a shtar works with no eidim at all?!

Tosafos in Gittin 22b (d"h Aval) understands the baraisa in Kiddushin as referring to a shtar with eidi mesirah, following the opinion of R' Eliezer. However, this runs into problems because the gemara in Gittin there says explicitly that one cannot write a shtar on a davar sheyachol l'hizdayef (i.e. on paper that can be erased and one can change the contents of the shtar) by other shtaros besides gittin, and rely on eidi mesirah to remember what the shtar said. This is learnt from a pasuk in Yirmiyah of "lmaan yaamdu yamim rabim", a general shtar has to be able to last "many years", even beyond the memories of the eidi mesirah. Tosafos therefore makes a distinction between shtaros that are made for raaya purposes and shtaros made for kinyan. Only shtaros specifically made for raayah purposes need to be able to last "many years". Shtaros made for kinyan, however, can even be written on davar sh'yachol l'hizdayef and one can rely on the eidi mesirah to remember.

[ By the way, the implication of Tosafos is that eidi mesirah work on shtarei raayah. This gets into the issue we mentioned here about R' Soloveitchik's yesod that eidi mesirah don't work on shtarei raayah. ]

Rabbi Schachter in Eretz HaTzvi (page 164) seems to learn the Rambam as dealing with a shtar with eidi chasimah. This really seems to run into a problem because the gemara in Gittin specifically does not allow eidi chasimah on davar sheyachol l'hizdayef. It's only by eidi mesirah that the possibility exists.

The Birchas Shmuel in Gittin 14:6 deals with this issue. He says that eidi chasimah in general create an anan sahadi that there was a proper mesirah. This anan sahadi works to create a shtar even in the face of the problem of yachol l'hizdayef. However, the anan sahadi cannot also create a gerushin in such a scenario. (The idea is that by gerushin the anan sahadi is needed both to create a shtar and to effect the gerushin because of the rule of ein davar shebervah pachos mishnayim. The second issue cannot be resolved by the anan sahadi in this case. Why should the first issue be resolvable and not the second? I don't see the answer to that in my notes. Check the Birchas Shmuel I guess.) See the Ktzos HaChoshen 42:1 regarding this issue as well.

Another problem arising with this approach in the Rambam is that the Rambam really paskens eidi mesirah karti. Why go with eidi chasimah here? One option would be to say that the Rambam only held eidi mesirah karti by gerushin to effect the divorce, but not to create the shtar. One needs to examine Gittin 86b and 22b to determine if this approach can work. There are other possible ways to get out of this question (again see this same post which opens the door to some of them).