Sunday, December 23, 2007

The Uniqueness of Shtarei Erusin

The Gemara in Gittin 9a discusses a case where one frees an eved but "leaves over" something for himself within the shtar. For example, the shtar might say, "all my property is yours except...". In the hava amina of the gemara the issue is dependent upon the concept of palginan diburah (see the sugya itself for details). However, in the maskana, Rav Ashi comes up with an alternative reason why such shtaros are no good. Rav Ashi says, "here the reason why it is no good is because it's not a get that totally cuts off". The Rif (2b) explains that since in the shtar there exists some zchuyos to the adon the shtar isn't totally the property of the eved. The shtar used to free the eved has to contain 100% entitlement to the eved (see Rashi also for his explanation of krus gita).

R' Akiva Eiger asks on this idea of the Rif from a sugya in Gittin 40a where the case is that one frees a shifcha. The gemara says that one may give the shifcha a shtar that says "go free with this and marry me." In other words, the same shtar is functioning both to free the woman and marry her to the adon. The question is apparent. Doesn't this shtar contain an entitlement to the adon? How does the Rif understand this gemara?

R' Akiva Eiger answers by pointing out the uniqueness of shtarei erusin. All other shtaros are given from the makneh to the koneh. For example, if I give a field to someone by means of a shtar, I am supposed to give the shtar to the koneh. Shtar erusin is different. There the shtar goes from the koneh, the husband, to the makneh, the wife. Therefore, R' Akiva Eiger explains, the shtar is completely being given to the woman.

In a case where a person frees an eved and the shtar says that some land remains with the adon, so then the very shtar the eved is receiving contains zchuyos of the adon that require the adon's possesion of a shtar. Only then does the Rif say the shtar is bad. This follows the concept in the gemara called "agida gabay". If the shtar is given in such a way that the shtar itself remains somewhat by the adon, that isn't a proper "giving" of a shtar. Essentially, the Rif is saying that lav krus gita is a halachic "agida gabay". However, because the nature of shtarei erusin is that the makneh receives the shtar, there is no agida gabay and no problem with such a shtar.

Rav Chaim in Ishus 3:18 also points out this uniqueness of shtarei erusin. Based on this, he explains that shtaros, in general, are not created by the "daas hamischayev" (i.e. the makneh is usually being mechayev himself by giving away his property). The existence of shtarei erusin prove that the daas of the one who makes the shtar is what creates the shtar. Although, most would assume the daas hamischayev creates shtaros, this is not the case.

In Hilchos Ishus 3:3 the Rambam writes as follows:

ג וְאִם קִדַּשׁ בִּשְׁטָר--כּוֹתֵב עַל הַנְּיָר אוֹ עַל הַחֶרֶס אוֹ עַל הָעַלֶּה וְעַל כָּל דָּבָר שֶׁיִּרְצֶה, הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי, אוֹ הֲרֵי אַתְּ מְאֹרֶסֶת לִי, וְכָל כַּיּוֹצֶא בִּדְבָרִים אֵלּוּ; וְנוֹתְנוֹ לָהּ, בִּפְנֵי עֵדִים

The Rambam here is paskening that in order to create a shtar erusin one needs to use eidi mesirah - eidim who witness the giving over of the shtar. The question is that in Gerushin 1:16 the Rambam says that by Gittin one may use eidi chasimah b'dieved. Why does the Rambam not say the same thing by shtar eirusin?

Some acharonim answer this question by pointing to the fact that gerushin can be done against the will of the woman. By kiddushin, however, since the daas of the woman is needed, eidi chasimah are no good. The idea is that there must be witnesses present not only to assess the daas of the man, but the woman as well. (See Avi Ezri Ishus 3:3 and Birchas Shmuel Kiddushin Siman 2.)

Others answer using the same yesod that we have been dealing with. The idea is that by gerushin, since the woman is the koneh, so the tefisas hashtar of the koneh can create an anan sahadi as though the eidi chasimah witnessed the giving of the shtar. However, by kiddushin the woman is the makneh. By shtaros we don't say that the tefisas hashtar of the makneh can create such an anan sahadi. Therefore, eidi chasimah are no good by shtar erusin. (See Chazon Ish Even HaEzer 101:11 and Birchas Shmuel Gittin 14.)

The Maharit Alguzi by Get Mekushar in Siman 13 asks a different question on the Rif we started with. He asks from a gemara in Kiddushin 69a where it says that one can free a shifchah and not ubar. Here too, isn't the adon "holding back" the baby for himself? The Shaarei Chaim in Gittin 28 says that this is not a shiyur in the shichrur. The adon is not holding back. Rather, the adon is merely clarifying who he is freeing and who he is not. In such a case it's not a problem of krus gita.