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When does a shtar require edei mesira (witnesses to delivery) to effect kinyan? Tosafos (תוספות) on Gittin 4a suggests that edei mesira karsei means witnesses must always be present at delivery, even for ordinary shtaros—yet proposes hoda'ah as ba'al din might substitute for witnesses. The shiur wrestles with how admission by a litigant could create a maaseh kinyan when the delivery itself is what makes the shtar effective.
This shiur examines a difficult Tosafos (תוספות) on Gittin 4a that explores the requirement of edei mesira (witnesses to the delivery) in the context of various types of legal documents. The fundamental question is whether a shtar (document) can effect a kinyan (legal acquisition) based solely on edei chasima (witnesses who signed the document), or whether it always requires edei mesira—witnesses who were present when the shtar was delivered. Tosafos begins by establishing that according to Rav Meir, a get requires edei mesira, and if there are no witnesses to the delivery, the get is invalid. The rationale is ein davar sheb'ervah b'paches miShnayim—matters of forbidden relationships (ervah) cannot be established with fewer than two witnesses. Tosafos extends this principle to other documents: shtar matana (gift deed), shtar mechir (bill of sale), and documents effecting kinyan karka (acquisition of land). According to Rav Elazar, whose opinion we follow in these matters, if we know there were no witnesses present at the delivery (yodua shelo nosnan lifnei edim), the document is invalid.
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Gittin 4a
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Why does the Gemara present a kal v'chomer for chuppah making kiddushin based on kesef not being maichel b'terumah, only to reject it? The shiur reveals that even the rejected kal v'chomer establishes a fundamental yesod: kiddushin is a kinyan for ishus (marital relationship), not merely a kinyan in hilchos kinyanim. The second kal v'chomer—from chuppah being gomeres—raises Tosafos's famous question.
Is the kesef used in kiddushin a true kinyan (acquisition), or merely a symbolic means of establishing marriage? The shiur analyzes multiple interpretations of the Gemara's derivation from ki yikach ki'ach mi'Sayeffron, exploring whether marriage constitutes ownership, and develops three fundamental approaches: (1) The Gemara proves ishus is a kinyan, (2) ishus is not a kinyan but uses kinyan-like means, or (3) ishus is a kinyan but the kesef may not be a ma'aseh kinyan. The Rambam's position—calling kesef "midivrei sofrim"—is explained as distinguishing between cross-referencing concepts versus borrowing terminology.
Why does the Mishna alternate between the language of "kinyan" (acquisition) and "kiddushin" (sanctification) when describing marriage? The shiur develops a fundamental distinction: marriage has two separate aspects—a kinyan dimension (ownership) and a kedusha dimension (sanctified relationship). Either aspect can initiate the bond, and understanding this dual nature resolves multiple textual and halachic questions throughout the sugya.
Does kiddushei shetar require a shevah pruta? The Ran presents two approaches to the Rif's position. The shiur develops the Ran's second pshat that shetar kiddushin functions as a hachnah (exchange) rather than a mere kinyan nesina. This reading has profound implications for isuri hana'ah, mechubar, and the relationship between kesef and shetar.
