Q&A: Question about the Rashba in Kiddushin 65a
Question about the Rashba in Kiddushin 65a:
Question
I can’t manage to understand a simple point. Maybe another pair of eyes (yours) will shed light on it.
The Talmud there says that a litigant’s own admission is effective in monetary matters but not in kiddushin, because in monetary matters he does not obligate others (only himself, and therefore it works), whereas in kiddushin he does obligate others (the woman becomes forbidden to every other man).
The Rashba asks on this that there are cases in monetary law where, even though it seems that he is obligating others, nevertheless a litigant’s admission still works, because that is not called obligating others. For example: “Is it conceivable that someone who admits that he sold his field to his fellow is not believed—and do we call that obligating others!?”
And his answer there is very forced.
But I don’t understand the question at all. In the case of someone admitting that he sold his field, the field previously belonged to the seller (and then passed into the buyer’s possession), so from the outset it was already forbidden to others, and nothing changed. But with a woman, before the husband and wife came and said they had become betrothed, the woman was unmarried, and then she becomes forbidden. Here it really is called obligating others.
Answer
His claim is that if a person has the right to obligate others, then his act is not considered “obligating others.” A woman can betroth herself to whomever she wishes and not become betrothed to others, and therefore the fact that she claims to have become betrothed to a certain man is not called obligating others. When I sell a field to so-and-so, that is not called obligating others—not because it was already forbidden to others beforehand, but because I have the right to obligate them. When I have the right to obligate them, they have no rights, and therefore my act does not obligate them (= does not infringe their rights). A completely simple reasoning.
Discussion on Answer
Kiddushin is a case of obligating others not in the sense of infringing rights, but in another sense: the legal effect of kiddushin has a general legal significance for the public at large. (That is apparently the reason witnesses are needed for the very validity of the matter. The witnesses are representatives of the public who confirm the kiddushin.) A change in public status cannot be made through a litigant’s admission, but only through witnesses who represent the public.
In fact, even without this move, the Rashba’s question is not difficult, since in kiddushin the testimony is for the validity of the matter itself, so why should a litigant’s admission help? Only when testimony is required as evidence (as in monetary matters) can a litigant’s admission help, since it is like one hundred witnesses. It seems to me that on this very point the Ketzot HaChoshen disagrees with him.
The Ketzot HaChoshen writes that a litigant’s admission should also help for the validity of the matter itself, because we learn from a verse that a litigant’s admission is like two witnesses.
But even aside from that, the Rashba’s question is difficult, because the reason for “witnesses for validity” is that without proof the kiddushin does not take effect. So once there is proof (a litigant’s admission), that should also help for validity.
Not correct. An admission is like two witnesses in its evidentiary power, but testimony for the validity of the matter is not based only on evidentiary power; rather, it is an approval of the marriage by the public’s representatives. The comparison is not formal. There are situations where the presence of witnesses is required, not merely that testimony exist.
What does it mean, approval of the marriage by representatives of the public?
Two witnesses are not representatives of anyone; they are simply strong proof. A change in public status cannot be made without strong proof, and a litigant’s admission is strong proof.
I don’t understand what the Rabbi means.
(Maybe regarding the part that a person is believed about what is his not because of the evidentiary force involved, but because “a person is believed about what is his”—that is very strange. And as I understand it, the Rashba also did not mean that in his question, “Is it conceivable that someone who admits that he sold…”)
I understand. I knew I must have been missing something.
So—do you have anything offhand to answer his question? It seems very strong.