OPINIONS: The Gemara teaches that when a person below the age of twenty wants to get married, Beis Din must examine him to ensure that he has signs of maturity (Shtei Se'aros). TOSFOS (DH Bodkin) explains that the Gemara means that a boy over the age of Bar Mitzvah must be examined to ensure that he has Shtei Se'aros; there is no need to examine a boy who under the age of Bar Mitzvah, since his act of Kidushin is meaningless even if he has Shtei Se'aros (because any Se'aros he has are considered a "Shuma b'Alma"; see Nidah 52b). The same law applies to a woman. Tosfos explains that if a girl over the age of Bas Mitzvah accepts Kidushin from two different men, she is examined to determine if she has reached adulthood. If she has Shtei Se'aros, the Halachah is that she had the right to accept Kidushin from the first man. Since the first Kidushin is valid, the second Kidushin does not take effect. If, however, the girl does not have Shtei Se'aros, her Kidushin is considered a Safek d'Oraisa, since it is possible that she had Se'aros but lost them.

According to Tosfos, when is this examination performed in the case of a girl? Is it performed before or after the second acceptance of Kidushin?

(a) REBBI AKIVA EIGER (Teshuvos #7) infers from Tosfos that the girl is examined after she accepts the second Kidushin to determine whether she was fit to accept the first Kidushin. However, Rebbi Akiva Eiger questions this inference. If the girl is found to be an adult (a Gedolah), it is understandable that the Rabanan assume that she was a Gedolah when she accepted the first Kidushin. If, however, she is not found to be a Gedolah, then it is more logical to assume that the hairs were never there rather than to assume that they were there but fell out. Rebbi Akiva Eiger explains that, in general, when a girl reaches the age of Bas Mitzvah, the Rabanan assume that she is a Gedolah because of Rava's statement in Nidah (46a) that there is a Chazakah that a girl who reaches that age is a Gedolah. Tosfos here states that if a girl is examined and found not to have Shtei Se'aros, the Rabanan entertain the possibility that she has not yet developed signs of adulthood. However, the very fact that the Rabanan acknowledge such a possibility indicates that the usual Chazakah does not apply to this girl. (If it did apply, the Rabanan would have to assume that she definitely had Shtei Se'aros at some point in the past, and the hairs merely fell out prior to the examination.) Without the Chazakah, though, there is no reason whatsoever to assume that the girl had Shtei Se'aros at any point in time. Accordingly, the Halachah should be that if the girl is found not to have Shtei Se'aros, she should be deemed definitely a minor. There seems to be no logical way for the examination to result in a Safek.

Rebbi Akiva Eiger asks another question. Even if it would be logical to suspect that the hairs fell out, there should be a Sfek Sfeika which says that she is not Mekudeshes to the second man: the girl might have been a Gedolah when she accepted the first Kidushin, in which case the second Kidushin is invalid, and even if she was not a Gedolah at the time of the first Kidushin, she still might have been a Ketanah at the time of the second Kidushin. In either case, she would not be Mekudeshes to the second man. Why does Tosfos treat this case as an ordinary Safek?

Rebbi Akiva Eiger does not answer his questions on Tosfos, and he concludes "Tzarich Iyun Gadol."

The NODA B'YEHUDAH (end of Mahadura Kama CM 4) answers the second question. There is a concept that "a Chazakah that was never clarified for one moment is not a Chazakah" ("Chazakah she'Lo Nisbarerah Sha'ah Achas Einah Chazakah"). This means that if there is a suspicion that the girl had hairs that fell out, the Rabanan would not suspect that the hairs fell out earlier and that she was a Gedolah when she accepted the first Kidushin, since there is no way to establish that this girl is a Gedolah even now. Therefore, instead of creating a possibility that the girl was a Gedolah when she accepted the Kidushin, the suspicion that she had hairs that fell out means that it is simply unclear whether or not she was ever a Gedolah, such that it is not an established possibility.

(b) The AYELES HA'SHACHAR explains that Tosfos means that the girl is examined even before she accepts the second Kidushin. He says that this is the implication of the TOSFOS HA'ROSH (whose explanations often reflect those of Tosfos). The Ayeles ha'Shachar adds that this explanation is clearly a more basic and simpler explanation of the intention of Tosfos, as it is consistent with the wording of the Gemara, "Bodkin l'Kidushin" -- "a girl is examined for Kidushin," which implies that a girl is examined after even one Kidushin, and not only in a strange case in which there were two acts of Kidushin. According to this explanation, Tosfos means that if the examination shows that she had Se'aros, the first Kidushin is valid and the second obviously is invalid. However, if she is found to have no Se'aros after the first Kidushin but is found to have Se'aros after the second Kidushin, there is a suspicion that she was actually a Gedolah during the first examination as well, but the Se'aros had fallen out. This doubt renders the second Kidushin a Safek Kidushin. (Y. MONTROSE)



OPINIONS: Rebbi Levi states that a person may make a Kinyan from a Shechiv Mera on Shabbos, even though Kinyanin usually are prohibited on Shabbos. Rebbi Levi explains that such a Kinyan is permitted on Shabbos not because of Rebbi Elazar's opinion that a Shechiv Mera may transfer ownership only through a Kinyan. Rather, the Kinyan is done to assure the Shechiv Mera that his instructions will be carried out, when in reality his instructions alone effect the transfer of possession.

How does this Kinyan apply practically? May a person who is deathly ill bequeath a gift on Shabbos, such that the gift takes effect via his verbal instructions alone?

(a) The SHULCHAN ARUCH (CM 254:1) first quotes the opinion of the RAMBAM who rules that a Shechiv Mera may perform a Kinyan on Shabbos, since the Kinyan does not create the transfer.

(b) The Shulchan Aruch then quotes the TUR in the name of the ROSH who rules that if the Shechiv Mera wishes to make a final transfer of his possessions, and he wants that transfer of ownership to remain permanent even if he recovers, the Kinyan may be performed on Shabbos. This Kinyan is permitted despite the fact that such a transaction is not a Matnas Shechiv Mera and does need a Kinyan, since the Shechiv Mera intends that it take effect even if he recovers.

How does the Shulchan Aruch himself rule? A general principle states that whenever the Shulchan Aruch records one opinion and then records a variant opinion, the Shulchan Aruch rules like the first opinion. Accordingly, it seems that the Shulchan Aruch rules that a Shechiv Mera may not make a Kinyan, on Shabbos, to make a gift final even if he recovers. There is no concern that his condition will deteriorate if he is unable to make such a Kinyan, and therefore such a Kinyan may not be performed on Shabbos. (This seems to be how the NESIVOS HA'MISHPAT understands the Shulchan Aruch.)

(c) The REMA there quotes the RASHBAM (DH Konin) who is even more lenient than the second opinion quoted by the Shulchan Aruch. The Rashbam maintains that the Shechiv Mera may perform a Kinyan on Shabbos to give any kind of gift, whether it is small or large. The Rabanan are concerned that a Shechiv Mera's condition may deteriorate if he is denied his request or if he thinks that his request will not be carried out. When the Rema quotes the Rashbam, he adds that this ruling applies even if it does not seem as though the ill person is worried about his impending death.

(d) The Rema writes that there are others who disagree. He points out that the second opinion quoted by the Shulchan Aruch as a leniency is still more stringent than the Rashbam, who rules that a Kinyan may be made by a Shechiv Mera for any kind of gift that he wants to give. (Y. MONTROSE)