KIDUSHIN 48 (20 Nisan) - sponsored by Mr. Martin Fogel of Carlsbad, California, in memory of his father, Yaakov ben Shlomo Fogel, on the day of his Yahrzeit.
 

12th CYCLE DEDICATION

 
KIDUSHIN 48 - Sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.

[48a - 49 lines; 48b - 53 lines]

1a)[line 1]וחזר ומחלוV'CHAZAR U'MACHALO- and [the borrower/seller] subsequently forgives [the debt]

b)[line 1]מחולMACHUL- it is forgiven

2)[line 2]יורשYORESH- his heir

3)[line 2]מר אית ליה דשמואלMAR IS LEI D'SHEMUEL- [the Chachamim] rule according to [the Halachah of] Shmuel [in which case a woman who receives a loan for Kidushin will not truly agree to the marriage since she is wary of its subsequent cancellation]

4)[line 4]באשה קמיפלגיB'ISHAH KA'MIPALGI- they disagree regarding [the mindset of] a woman [who is betrothed (as opposed to that of a business partner)]

5)[line 5]אשה סמכה דעתהISHAH SAMCHAH DAITAH- a woman will rely [on that which her husband will not forgive the loan that he has given to her]

6)[line 5]מימר אמרה לא שביק ליה לדידי ומחל ליה לאחריניMEIMAR AMRAH, "LO SHAVIK LEI L'DIDI U'MACHAL LEI L'ACHRINI"- she will say [to herself], "He will not leave me and forgive [the loan] to another"

7)[line 9]מנה לי בידך; תנהו לפלוניMANEH LI B'YADCHA; TENAHU L'FELONI- "You have a Maneh (the equivalent of 100 Zuz/silver Dinarim) of mine in your hands (i.e., you owe me a Maneh); give it to so-and-so"

8)[line 10]מעמד שלשתןMA'AMAD SHELOSHTAN - The Verbal Transferal of an Item in the Possession of a Second Party to that of a Third Party

(a)One who wishes to acquire an object must perform a Ma'aseh Kinyan - an action that effects the transfer of an object into one's possession.

(b)Metaltelin (chattel; movable goods) may be acquired through one of the following actions:

1.HAGBAHAH - lifting;

2.MESHICHAH - lit. pulling, which includes causing the object to move in any way;

3.CHATZER - having the object contained within one's domain (see Mishnah, Bava Basra 42a);

4.CHALIPIN - barter;

5.MESIRAH - lit. handing over, such as the reigns of an animal or the tie-lines of a boat.

(c)Under certain circumstances, however, Chazal decreed that a transferal of ownership may take place without a Kinyan or witnesses. One such case is when one wishes to give another that which he owns and is in the possession of a third party. If the owner, possessor, and recipient are all standing together ("Ma'amad Sheloshtan"), and the owner instructs the possessor to give his item to the recipient, then the item now belongs to the recipient.

(d)This is one of three Rabbinic decrees for which the Chachamim gave no reason (Gitin 14a). The RASHBAM (to Bava Basra 144a) explains that since such a scenario is a common occurrence, the Rabanan did not wish to make it an unnecessarily burdensome procedure.

9)[line 13]נימא כתנאיNEIMA K'TANA'EI- let us say that [the Halachic ruling of Rav which states that one cannot betroth a woman with a prior loan] is the subject of a Tana'ic disagreement

10)[line 15]שמין את הניירSHAMIN ES HA'NEYAR- we evaluate the parchment

11)[line 17]קשיא דר"מ אדר"מKASHYA D'REBBI MEIR AD'REBBI MEIR- [the opinion of] Rebbi Meir [expressed here would then] contradict [the opinion of] Rebbi Meir [expressed earlier (47b), where he ruled that one may betroth a woman with a loan owed him by another]

12)[line 20]קדשה בשטרKIDSHAH BI'SHTAR - he betrothed her using a document (ERUSIN)

(a)The first stage of Halachic marriage is called Kidushin (betrothal). Kidushin can be accomplished in one of three ways:

1.Kesef - A man can be Mekadesh a woman through giving her money or anything equal in value to a Perutah (a very small coin). Upon doing so, he must proclaim, "Harei At Mekudeshes Li b'(-----) Zo" - "Behold you are betrothed to me through this (-----)."

2.Shtar - A man can be Mekadesh a woman through giving her a marriage document. This may be written upon any surface, and need not be of any specific value. The words "Harei At Mekudeshes Li bi'Shtar Zeh" must be written upon the Shtar.

3.Bi'ah - A man can be Mekadesh a woman through having relations with her. At that time, he must proclaim, "Harei At Mekudeshes Li b'Bi'ah Zo." Because Kidushin requires witnesses, the Chachamim strongly condemned anyone who uses this method of Kidushin.

(b)The Torah refers to this stage of marriage as "Erusin" (Devarim 22:23). The term "Kidushin" is used by the Rabanan in order to connote that just as everyone is prohibited to benefit from Hekdesh (an object sanctified to the service of HaSh-m), through Kidushin a woman becomes prohibited to everyone in the world save her husband (Kidushin 2b; see also Tosfos 7a DH v'Nifshetu). Although a man and woman are married after Kidushin, they may not yet live together as man and wife.

(c)The second stage of Halachic marriage - the completion of the marriage - is termed Nisu'in. This is accomplished through Chupah. Chupah is never clearly described in the Gemara, and various opinions are offered by the Rishonim as to what exactly it entails (see Insights to Kesuvos 57:1). The general idea behind Chupah is that the groom brings his wife into his house. After the Chupah is performed, the marriage is complete.

13)[line 21]עדי חתימה כרתי... עדי מסירה כרתיEDEI CHASIMAH KARSEI... EDEI MESIRAH KARSEI - Whether it is Those Witnesses Who Sign a Document or Those Who Witness its Transfer who Determine its Validity

(a)Rebbi Meir and Rebbi Elazar disagree as to which witnesses validate a Get (bill of divorce). Rebbi Elazar rules that "Edei Mesirah Karsei" - "the witnesses who observe the transfer of the document sever [the marriage]." Rebbi Meir maintains that "Edei Chasimah Karsei" - "the witnesses who sign the document sever [the marriage]." The term "sever" refers to the word used by the Torah to refer to a divorce (Devarim 24:1).

(b)The Torah requires that a Get be written Lishmah - with the express intent of using it to divorce the woman mentioned therein (20b). Rebbi Elazar maintains that witnesses are not required to sign the Get at all mid'Oraisa. (Mid'Rabanan, witnesses must sign so that one can validate a Get whose Edei Mesirah are dead or elsewhere.) Therefore, the requirement of Lishmah applies to the parts of the Get that refer specifically to that divorce (the "Toref"). Rebbi Meir maintains that the requirement of Lishmah applies to the signatures of the witnesses; the body of the Get need not be written Lishmah at all.

(c)Although this Machlokes specifically refers to Gitin, it applies equally to all documents.

14)[line 24]אם יש בו שוה פרוטה, מקודשתIM YESH BO SHAVEH PERUTAH, MEKUDESHES- if the document is worth a Perutah, then she is betrothed. The Chachamim disagree with Rebbi Meir and maintain that a woman who is betrothed with a Shtar has in mind the value of the Shtar as well, such that if it valuable enough she will be betrothed through Kidushei Kesef.

15)[line 25]ואם לאו, אינה מקודשתV'IM LAV, EINAH MEKUDESHES- and if it is not, she is not betrothed. RASHI and TOSFOS maintain that these words belong neither in the Gemara nor the earlier Beraisa. This is because it is not absolutely certain that she is not betrothed even if the Shtar is not worth a Perutah, since the Halachah may follow Rebbi Elazar. The TOSFOS RI HA'ZAKEN leaves these words in the Gemara, and explains that according to the Chachamim she is not betrothed for certain.

16)[line 26]שלא לשמהSHE'LO LISHMAH- not specifically for the sake of the woman who is to be betrothed (but rather without any specific woman in mind)

17)[line 27]שטר אירוסיןSHTAR ERUSIN- a marriage document; see above, entry #12

18)[line 28]הויה ליציאה מקשינן?HAVAYAH L'YETZI'AH MAKSHINAN? - do we employ a Hekesh (a comparison of two subjects mentioned together in a verse) (HEKESH)

(a)One of the methods employed by Chazal when determining Halachah from the verses of the Torah is "Hekesh." A Hekesh entails comparing two subjects that are mentioned together in a verse.

(b)A Hekesh is a powerful way of determining Halachah. When two subjects are compared through a Hekesh, all possible parallels are drawn between them, unless a different Derashah teaches us otherwise ("Ein Hekesh l'Mechetzah"). Additionally, Pirchos (logical differences) that would impede a Kal va'Chomer (see Background to Avodah Zarah 46:22) or a Gezeirah Shavah (see Background to Yevamos 70:26) do not stand in the way of learning one subject from another through a Hekesh ("Ein Meshivin Al ha'Hekesh").

(c)The verse states "And if she shall go out of his house, and go and marry another..." (Devarim 24:2). From that which divorce ("v'Yatz'ah") and marriage ("v'Hayesah") are mentioned together in the verse, we derive through a Hekesh that their Halachos are comparable unless specified otherwise. Reish Lakish asks, do we compare [the methods of] becoming [married; i.e. methods of Kidushin] to [the methods of] going out (i.e. divorce)?

19)[line 29]יציאה בעינן לשמהYETZI'AH BA'INAN LISHMAH - going out [from a marriage] requires express intent (GET)

(a)A marriage can be dissolved in one of two ways. One is through the death of either spouse. The other is through the presentation of a "Sefer Kerisus" (lit. document of severance) by the husband to his wife. This document must be placed into her possession (v'Nasan b'Yadah") in the presence of two witnesses (Devarim 24:1). In the language of Chazal, this document is called a Get (pl. Gitin).

(b)A Get may be written upon any surface, such as paper, parchment, shards of pottery, leaves (that will not wither), the hand of a slave, and the horn of a cow. It may not, however, be written upon that which is still growing from the ground.

(c)The main body of a Get consists of the words "Harei At Muteres l'Chol Adam" - "You are hereby free to [marry] whomever you wish." It must also contain the full names of both husband and wife (i.e., their first names along with those of their fathers), their places of residence (or birthplace, according to some), the location of the writing of the Get, and the date. If any of these details is missing or incorrect, then the Get is invalid (34b, Yevamos 91b). The Get must be written Lishmah - with the express intent of using it to divorce the woman mentioned therein (20a).

20)[line 31]הויה דכסףHAVAYAH D'CHESEF- the method of betrothing a woman through giving her an item of value; see above, entry #12

21)[line 32]בתר דבעיא, הדר פשטהBASAR D'BA'AYA, HADAR PASHTAH- after he asked [the question], he subsequently answered it

22)[line 33]"וְיָצְאָה [מִבֵּיתוֹ, וְהָלְכָה] וְהָיְתָה [לְאִישׁ אַחֵר]""V'YATZ'AH... V'HAYESAH..."- "And if she shall leave [his house, and go] and marry [another]" (Devarim 24:2). See above, entry #18.

23)[line 36]שלא מדעתהSHE'LO MI'DAITAH- without her knowledge

24a)[line 39]רבא ורבינא אמרי מקודשתRAVA V'RAVINA AMREI MEKUDESHES- Rava and Ravina maintain that she is betrothed [since we derive the Halachos of Kidushin from those of divorce, and a wife need not know of her Get before it is written (9b)]

b)[line 40]רב פפא ורב שרביא אמרי אינה מקודשתRAV PAPA V'RAV SHARVIYA AMREI EINAH MEKUDESHES- Rav Papa and Rav Sharviya maintain that she is not betrothed [since we derive the Halachos of Kidushin from those of divorce, and just as a husband who grants his wife her release from the marriage must know of the Get before it is written, so too a woman who grants herself as a wife must know of her Shtar Kidushin before it is written (9b)]

25)[line 41]נימא כהני תנאיNEIMA K'HANEI TANA'EI- let us say that [the Halachic ruling of Rav which states that one cannot betroth a woman with a previous loan] is the subject of a Tana'ic disagreement

26)[line 41]עשה ליASEI LI- fashion for me [from my own raw gold]

27a)[line 42]שיריםSHIRIM- anklets

b)[line 42]נזמיםNEZAMIM- nose or ear rings (see IBN EZRA to Bereishis 24:22)

c)[line 42]טבעותTABA'OS- rings

28a)[line 44]אותו ממוןOSO MAMON- that money [that she gave to him]; i.e., the finished product

b)[line 45]בממון אחרB'MAMON ACHER- [the Chachamim must rule that she is not Mekudeshes until she receives] other money [whereas Rebbi Meir maintains that she is Mekudeshes with the finished jewelry]

29)[line 45]שמע מינה במקדש במלוה קמיפלגיSHEMA MINA B'MEKADESH B'MILVEH KA'MIPALGI- The Gemara goes on to explain this presumption.

30)[line 46]ישנה לשכירות מתחלה [ועד] סוף / אינה לשכירות אלא לבסוףYESHNAH LI'SECHIRUS MI'TECHILAH V'AD SOF / EINAH LI'SECHIRUS ELA B'SOF - Whether the Obligation to Compensate a Hired Worker Accrues Gradually or is Incurred Wholly when the Work is Finished

(a)Tana'im disagree as to when one becomes obligated to pay a hired worker. One opinion rules that "Yeshnah li'Sechirus mi'Techilah v'Ad Sof." This means that as the worker completes each bit of work, his employer accrues an obligation to pay him for it. Others maintain that "Einah li'Sechirus Ela b'Sof." This means that his employer becomes obligated to pay one lump sum upon the completion of the job.

(b)RASHI maintains that even according to those who rule Yeshnah li'Sechirus mi'Techilah v'Ad Sof, an employer need not pay any amount until he receives a finished product. Other Rishonim (such as the RASHBA) explain that according to this opinion, the obligation exists as soon as the job is finished. All opinion agree, however, that retroactively - since the obligation accrued gradually - the money for the job has been owed to the worker since he began his work.

31)[line 46]הוה מלוהHAVAH MILVEH- [the money which she owes the artisan] is a loan [since she retroactively owes it to him from when he began to work on the jewelry] (see previous entry)

48b----------------------------------------48b

32)[line 1]אינה לשכירות אלא בסוףEINAH LI'SECHIRUS ELA B'SOF- a hired worker need not be paid until the completion [of the job (see above, entry #29), and he is therefore able to betroth her with the work itself as opposed to with money that she owes him (see KOVETZ SHIURIM TO Bava Kama 89a; see also PNEI YEHOSHUA here)]

33)[line 4]אומן קונה בשבח כליUMAN KONEH B'SHVACH KLI - A Craftsman Acquires an Item through Improving It

(a)There are two ways in which one is able to commission another to work for him. One is to hire him for a set rate, such as by the hour, day, etc. The other is to contract him to perform a certain job, and agree upon a set price for the entire body of work. Amora'im discuss (Bava Kama 99a) whether or not a craftsman who has been contracted to improve an item acquires that item through the change (Shinuy) that he effects in it (similar to the way in which a thief acquires a stolen item such that he is responsible for it; see Background to Bava Kama 65:16). Those who understand that "Uman Koneh b'Shvach Kli" - "a craftsman acquires an item through improving it" - maintain that he may, if he so chooses, keep the item and pay its original owner its full value. If he does choose to return it to its original owner, it is as if he is selling it anew. Those who rule that "Ein Uman Koneh b'Shvach Kli" argue that a craftsman is no different from a hired worker. Whether the obligation to pay the worker accrues gradually or is incurred at the end of the job (see above, entry #29), the craftsman does not acquire the item.

(b)There are a number of Halachic implications if a craftsman does acquire the item that he improves:

1.Since the item belongs to the craftsman from the time that he first improves it, he need not pay for its current value should it become ruined or lost. Rather, he need only pay for its value at the time that he received it from its original owner.

2.There is a prohibition against hiring a worker and not paying him on the same day that he performs the job that he was hired to do ("Lo Salin;" Vayikra 19:13). Since the item belongs to the craftsman from the time that he first improves it and he sells it back to its original owner when the job is complete, its original owner does not transgress this prohibition if he does not pay the craftsman on that day. The only time that it is possible to transgress the prohibition of Lo Salin if one rules that Uman Koneh b'Shvach Kli is when one hires a worker at a set rate.

3.Since the item belongs to the craftsman, he is able to betroth a woman with it. Even if this woman is his employer, since he is giving her something that does not now belong to her, she is Mekudeshes. If, however, he never acquired the object, and her obligation to pay him accrued gradually as he did the work, then she cannot be betrothed with the improved item. This is because a woman cannot be betrothed through the forgoing of a loan.

34)[line 10]נופךNOFECH- a precious stone (see Shemos 18:8)

35)[line 11]מלוה ופרוטה, (דעתיה) [דעתה] אפרוטהMILVEH U'FERUTAH, (DAITEI) [DAITAH] A'FERUTAH- [when one is Mekadesh a woman by forgoing her] loan and [giving her] a Perutah, her mind is on the Perutah [and the Kidushin therefore takes effect]

36)[line 13]בשכר שעשיתי עמךBI'SECHAR SHE'ASISI IMACH- [if one says, "Be Mekudeshes to me] with [the forgoing of the wages that you owe me for] that which I have worked for you"

37)[line 14]בשכר שאעשה עמך מקודשתBI'SECHAR SHE'E'ESEH IMACH, MEKUDESHES- [if one says, "Be Mekudeshes to me] with [the forgoing of the wages that you will owe me for] that which I will work for you," she is betrothed [since she does not owe him his wages until after his work is complete (Einah li'Sechirus Ela b'Sof)]

38)[line 15]אינה מקודשתEINAH MEKUDESHES- she is not betrothed [since all wages become a loan (Yeshnah li'Sechirus mi'Techilah v'Ad Sof)]

39)[line 17]רבי יהודה הנשיאREBBI YEHUDAH HA'NASI- Rebbi Yehudah the Prince, otherwise known as Rebbi, was the leader of the Jewish people in Eretz Yisrael. He was from Tzipori, a city in the lower Galilee approximately midway between Tiberias and Haifa, and it was there that he compiled and edited the six orders of the Mishnah.

40)[line 21]שכירותSECHIRUS- [whether or not the obligation to pay] wages [accrues gradually or is incurred only at the completion of the job]

41)[line 25]דבשDEVASH- mead (TOSFOS YOM TOV)

42)[line 28]אם הטעה לשבחIM HIT'AH L'SHEVACH- if he misled her for her benefit (i.e., he gave her gold instead of silver)

43)[line 30]בו ובמה שבתוכוBO UVA'MEH SHEB'SOCHO- [whether the value of the Kidushin is that of a Perutah is determined by the worth of both the cup] itself and that which is inside of it

44a)[line 32]הא במיאHA B'MAYA- a) that [which the value is determined by the cup and not that which is inside of it is a case] in which [the cup held] water [since her mind was not on the water due to its relative lack of value] (RASHI); b) that [which the value is determined by both the cup and that which is inside of it is a case] in which [the cup held] water [since the water is evaluated along with ("is Batel to") the cup due to its relative lack of value] (RABEINU TAM cited in TOSFOS DH Ha)

b)[line 33]הא בחמראHA B'CHAMRA- a) that [which the value is determined by that which is inside of the cup and not the cup itself is a case] in which [the cup held] wine [since his intention clearly was to offer her a drink and then take back the cup] (RASHI); b) that [which the value is determined by the cup only and not that which is inside of it is a case] in which [the cup held] wine [since he wished to betroth her with the cup and the wine has enough value that it is not evaluated along with the cup] (RABEINU TAM cited in TOSFOS DH Ha)

c)[line 33]הא בציהראHA B'TZIHARA- a) that [which the value is determined by both the cup and that which is inside of it is a case] in which [the cup held] a) fish brine (used as a dip); b) oil (from "Yitzhar," as in Bamidbar 18:12) [since this is used gradually over time and he clearly meant to offer her both the dip and its container] (RASHI); b) that [which the value is determined by that which is inside of the cup and not the cup itself is a case] in which [the cup held] a) fish brine (used as a dip); b) oil (from "Yitzhar," as in Bamidbar 18:12) [since, although he clearly intended to betroth her with this as it is worth more than the cup itself, the cup has enough value that it is not evaluated along with it] (RABEINU TAM cited in TOSFOS DH Ha)

45)[line 35]חומץCHOMETZ- vinegar

46)[line 36]איכא דניחא ליה בחלאIKA D'NEICHA LEI B'CHALA- some prefer vinegar [to wine, even though the wine is worth more]

47)[line 37]איכא דניחא ליה בכספאIKA NEICHA LEI B'CHASPA- some [women] prefer silver [to gold, since she has a specific need for silver, e.g., to complete a silver ornament (TOSFOS DH Ika; see Revach l'Daf)]

48)[line 37]דהבאDAHAVA- gold

49)[line 40]יתיב וקמסבר ליה לבריהYASIV UKA'MESAVER LEI L'VREI- was sitting and explaining [our Mishnah] to his son

50)[line 41]הלויניHILVENI- lend me [for the purposes of Kidushin]

51)[line 43]קפידאKEPEIDA- [that which he requested a silver Dinar was] a specific condition

52)[line 44]מראה מקום הוא לוMAR'EH MAKOM HU LO- [that which he requested a silver Dinar was] an example of the way [to be Mekadesh her]

53)[line 45]הטעהוHIT'EHU- he fooled him

54)[line 46]מעיקרא נמי דזהב הוה!ME'IKARA NAMI D'ZAHAV HAVAH!- [when she received the Kidushin] to begin with it was also gold!

55)[line 47]אני וארי שבחבורה תרגימנאANI ARI SHEBA'CHABURAH TARGIMNA- I and the lion (i.e., the greatest) among our group of scholars explained it

56)[line 51]קפידאKEPEIDA- [that which she mentioned a silver Dinar was] a specific condition

57)[line 52]קא צייר בבליתאKA TZAYAR B'VALISA- it was wrapped in a rag [and she discovered the switch only after her Shali'ach gave it to her]

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