KIDUSHIN 3 - dedicated by a Talmid of Rabbi Kornfeld in Chicago. May Hashem bestow upon him and his wife Berachah in all their endeavors, and Yiddishe Nachas and joy from their dear children.
1) KIDUSHIN PERFORMED THROUGH "CHUPAH"
QUESTION: The Mishnah (2a) states that a woman becomes betrothed "in three ways." The Gemara explains that the reason why the Mishnah mentions the number when it lists the ways in which a woman becomes betrothed is that it seeks to exclude a fourth possible form of Kidushin, that of Chupah.
RASHI explains that this means that Kidushin does not take effect when a father gives over his daughter to a man, through Chupah, with intention to perform Kidushin. (The RASHASH emends the text of Rashi to read "Lo" instead of "Lah," as is the text in older printings of the Gemara.)
Why does Rashi present the case of Kidushin through Chupah (which the Mishnah excludes) as a case in which a father performs Kidushin for his minor daughter? Why does Rashi not explain that the case of Kidushin through Chupah is a case in which the woman gives herself over to the man through Chupah, the same way Rashi explains the other forms of Kidushin in the Mishnah? (PNEI YEHOSHUA)
(a) The PNEI YEHOSHUA answers that the verses in the Torah which serve as sources for the concept of Chupah all refer to the Chupah of a Na'arah, in which the father gives over his daughter to the man. The verses state, "Es Biti Nasati" (Devarim 22:16; see RASHI to Kesuvos 47a, DH Ha d'Zachi), and, "v'Im Beis Ishah Nadarah" (Bamidbar 30:11; see RAN to Kesuvos, 1a of the pages of the Rif).
The SEFER HA'MIKNAH
points out that according to some opinions, Chupah is accomplished through Yichud (see RAMBAM
, Hilchos Ishus 10:1, and see Insights to Kesuvos 57:1
). The witnesses of the Kidushin who testify to Kidushei Bi'ah are not required to see the act of Bi'ah itself. Rather, they must see the man and woman isolate themselves together (Yichud) for the purpose of Bi'ah (see Insights to Kidushin 2:2
). Hence, if a man performs Chupah by secluding himself with a woman, although the Chupah alone does not accomplish Kidushin, they should be married because of the principle of "Hen Hen Edei Yichud, Hen Hen Edei Bi'ah" (Gitin 81b) -- witnesses who saw the Yichud are considered to have seen the Bi'ah. In response to this question, Rashi explains that when the Mishnah teaches that Chupah is not a valid form of Kidushin, it refers to the case of a father who gives over his daughter through Chupah. Since the father does not permit the man to be Mekadesh his daughter with Bi'ah, the only Kidushin which can take effect is Kidushei Chupah. (The daughter's own acceptance of Kidushei Bi'ah does not create a Kidushin, since she is a minor.)
(Rashi earlier (2a) writes that when a man wants to betroth a woman with Bi'ah he must state his intention explicitly. Accordingly, when he says that he betroths her with Chupah, the Yichud in the Chupah cannot constitute Kidushei Bi'ah because he did not mention it specifically.)
(c) Perhaps Rashi is bothered by a more general question: How does Chupah accomplish Kidushin? The act of Kidushin must be performed by the husband, as the verse states, "Ki Yikach Ish..." (Devarim 22:13); the man must be the one who gives the Kesef or the Shtar for Kidushin, and not the woman. In order for Chupah to be a valid form of Kidushin, the man must be the one who executes the act. According to many Rishonim, however, Chupah refers to when the woman enters the man's domain (see Insights to Kesuvos ibid.). When the bride enters the groom's home, she demonstrates that she has moved in to live with him in the manner of husband and wife, and that act consummates the marriage. The act of Chupah involves the woman's voluntary entry into the husband's domain with intent to make his domain her new home. If the husband carries her into his home, the act does not constitute an act of Chupah because it does not show that she chooses to become part of his household. Similarly, if both the man and woman are standing inside the house and the husband says, "Let this be Chupah," they are not married because the woman did not enter the home in the manner that a wife enters. Accordingly, how does Chupah fulfill the condition of "Ki Yikach" such that the husband performs the act?
Rashi answers this question when he explains that the case of Chupah to which the Gemara refers is a case in which the father gives over his daughter through Chupah. In such a case, the act of Chupah indeed is done in the manner of "Ki Yikach." Rashi is consistent with his opinion expressed later (5b, DH Kesef b'Ishus) where he writes that when a father marries off his daughter the Kidushin is considered "against the will" ("Ba'al Korchah") of the daughter (see TOSFOS to 5a, DH she'Ken). Accordingly, when the father gives over his daughter with intent to marry her off through Chupah and the husband carries her into his domain, such an act should be considered a valid act of Chupah. Such an act represents the normal manner in which a woman who is given over by her father enters the husband's domain. It is the manner for such a woman to be brought into the groom's domain without her consent.
2) KIDUSHIN THROUGH "CHALIFIN"
QUESTION: The Gemara explains that according to Rav Huna, who maintains that Chupah is a valid form of Kidushin, the reason why the Mishnah mentions the number "three" when it lists the ways in which a woman becomes betrothed is that it seeks to exclude a fourth possible form of Kidushin, that of Chalifin. Chalifin may not be used for Kidushin because a Kinyan Chalifin may be performed with an object worth less than a Perutah, and a woman does not consent to become betrothed if she receives an object worth less than a Perutah.
Why, though, does Chalifin not effect Kidushin when it is performed with an object worth at least a Perutah? Also, why does it not work in the case of a woman who is willing to accept less than a Shaveh Perutah?
(a) RASHI (3b, DH Lo Mekanya) writes that since it is shameful for a woman to be betrothed with less than a Perutah, the entire concept of Chalifin may not be used for Kidushin, even when it is done with an object worth more than a Perutah. Only when the Perutah is given to her expressly as a Kinyan Kesef does it work for Kidushin.
Rashi's intention is not clear. Why does no form of Chalifin work just because one form of Chalifin (Chalifin with less than a Shaveh Perutah) does not work?
Perhaps Rashi understands the Gemara like the RASHBA. The Rashba writes that the fact that Chalifin may be performed with an object worth less than a Perutah indicates that the Kinyan of Chalifin is not accomplished by the value of the object itself ("Guf") but rather by the legal status ("Din") which Chalifin creates. When the buyer gives to the seller the object of Chalifin to effect the Kinyan, the object does not remain in the possession of the seller. Rather, the seller gives it back to the buyer immediately (see Nedarim 48b). Since the seller gains no benefit from the object regardless of its value, it must not be the value of the object itself which effects the Kinyan, but rather the handing over of the object creates a legal status which transfers ownership of the purchased item. (Had the law required that the object of Chalifin have a minimum value of a Shaveh Perutah, it would have been considered a substantial Kinyan ("Keniyah Chashuvah") despite the fact that the seller gives back the object.)
RASHI in Bava Metzia (45b) follows this approach when he explains that the object given for a Kinyan of Chalifin is not given towards the purchase of the item being transferred (that is, the transaction is not a barter). Rather, it is given over as a symbolic act to show that the buyer and the seller accept the terms of the sale (as the verse says with regard to Kinyan Chalifin, "l'Kayem Kol Davar," Ruth 4:7).
This form of agreement (handing over an object of even negligible worth) cannot create a Kidushin. If the man gives the woman a Perutah as Chalifin, he effectively expresses, "Let this act of handing to you an object demonstrate the acceptance of our agreement that you are my wife." Such a symbolic acknowledgement is a disgrace to the wife. The act of Kidushin must be performed in such a way that the husband shows that he parts with something of value in order to marry her. A symbolic act is insufficient.
Why, though, is the Kidushin not valid when the woman agrees to accept less than a Shaveh Perutah for Chalifin and does not consider it disgraceful? The TOSFOS HA'ROSH answers that since most women consider such a form of Kidushin to be disgraceful, this woman's atypical attitude is considered meaningless ("Batlah Da'atah Etzel Kol Adam").
(b) TOSFOS explains that the Gemara never entertained the possibility that a Kinyan which works for the acquisition of land also works for Kidushin. The Torah teaches only that Kinyan Kesef works for Kidushin ("Kichah, Kichah"). No source in the Torah teaches that any other Kinyan of land is valid also for Kidushin. Why, then, does the Gemara seek a reason for why Kinyan Chalifin is not valid for Kidushin? On the contrary, it is obvious that Chalifin is not valid for Kidushin, and a source should be necessary to teach that it is valid.
Tosfos and other Rishonim explain that the Gemara assumed that Kinyan Chalifin operates with the same mechanism as Kinyan Kesef since, in both types of Kinyan, one thing is exchanged for another. The Gemara thought that Chalifin is a form of Kinyan Kesef. Accordingly, since the Torah teaches that Kinyan Kesef is valid for Kidushin, all of the subsidiary forms of Kinyan Kesef also should be valid for Kidushin.
The Gemara answers that Chalifin is not a form of Kinyan Kesef at all. It is an entirely different and independent Kinyan which works by serving as a symbolic act of agreement (as mentioned above). The Gemara proves this from the fact that Chalifin may be performed with an object worth less than a Perutah. If Chalifin would be a form of Kinyan Kesef, it would require an object worth at least a Perutah. (To support this explanation, Tosfos writes that the correct Girsa (beginning of 3b) is "for less than a Shaveh Perutah, a woman cannot be acquired (Lo Mekanya)," which means that a Kinyan which is not similar to Kesef cannot be used for Kidushin. The text should not read (as ours does), "Lo Mekanya Nafshah," which means that she does not let herself be acquired.)
According to this explanation, it is clear why Kinyan Chalifin is not a valid form of Kinyan for Kidushin even when more than a Shaveh Perutah is given to the woman -- only Kinyan Kesef is a valid form of Kinyan for Kidushin. Similarly, it makes no difference if the woman agrees to accept less than a Shaveh Perutah; Kinyan Chalifin can never create Kidushin since it is not a Kinyan Kesef.
3) THE SOURCE THAT A FATHER MAY MARRY OFF HIS DAUGHTER WHO IS A "NA'ARAH"
QUESTION: The Gemara searches for a source that a father may accept and keep the money of Kidushin for his daughter when she is a Na'arah. The Gemara suggests that since the Torah gives the father the right to keep the payments of Boshes and Pegam when his daughter is raped, the Torah also entitles him to keep the money of Kidushin.
The Gemara rejects this suggestion on the grounds that there is a logical reason for why the father receives the money of Boshes and Pegam. Since the harm inflicted upon her by the rape "pertains to him," the Torah gives him legal entitlement to those payments. In contrast, her Kidushin does not pertain to him. RASHI explains (based on Kesuvos 40b) that the reason why the Boshes and Pegam are given to the father is that it was in his power to torment his daughter with Boshes and Pegam by marrying her off to a Menuval (a loathsome, repulsive person) or Mukeh Shechin (leper) and receive the money of Kidushin for doing so. Therefore, he is entitled to the money paid for her Boshes and Pegam.
Rashi's words are perplexing. The Gemara has not yet proven that a man may marry off his Na'arah daughter and receive the money of Kidushin. How can the Gemara suggest that the father receives the payments of Boshes and Pegam because he is entitled to marry off his daughter if the Gemara has not yet proven that he may marry off his daughter? (TOSFOS DH v'Chi Teima)
(a) TOSFOS suggests that the Gemara means that the father receives the money of Boshes and Pegam since he may marry her off while she is a Ketanah (for which the Gemara earlier cited a source). Since he may choose to marry her off to a Menuval or Mukeh Shechin and she would continue to suffer Boshes and Pegam when she becomes a Na'arah, he is entitled to receive the payments of Boshes and Pegam even when she is a Na'arah (even if he no longer may marry her off at that stage).
Tosfos rejects this suggestion. If the father is entitled to receive the payments of Boshes and Pegam when his daughter is a Na'arah since he could have married her off while she was a Ketanah, he should also receive those payments even when she is raped after she becomes a Bogeres since he could have married her off when she was a Ketanah to a Menuval or Mukeh Shechin, and as a Bogeres she would still be suffering from the marriage.
The CHASAM SOFER (Kesuvos 40b) asks further that even if her father marries her off to a Menuval or Mukeh Shechin, after the Nisu'in Beis Din may force the husband to divorce her (Kesuvos 77a). Consequently, she does not continue to suffer the effects of the marriage her father arranged and thus her father should not be entitled to payments of Boshes and Pegam after the Nisu'in.
TOSFOS in Kesuvos (40b, DH d'Iy Ba'i) suggests a different version of this answer. Normally, a Ketanah is capable of receiving and keeping payments for physical damages inflicted upon her, as the Gemara says in Bava Kama (87b). Nevertheless, payments for Boshes and Pegam are given to her father and not to her. The Gemara attempts to infer from that law that the money of Kidushin of a Na'arah also should be given to the father even though the Na'arah has a "Yad" and is able to accept her own Kidushin. The Gemara rejects this suggestion by saying that the payments of Boshes and Pegam of a Ketanah rightfully belong to her father (even though she is capable of receiving payment for physical damages) since he could have married her off while she was a Ketanah and received money for causing her to suffer Boshes and Pegam. Since the Gemara has already established the source that a father may marry off his daughter when she is a Ketanah, the Gemara's logic is sound. The Gemara does not suggest that the father could marry her off while she is a Na'arah.
(b) TOSFOS and the TOSFOS YESHANIM (Kesuvos 40b) suggest that when the Gemara says that "it pertains to him," the Gemara does not mean that her father could marry her off to a Menuval or Mukeh Shechin. Rather, it means that her father himself suffers from the embarrassment and affliction experienced by his daughter. Therefore, there is more reason to give the payments of Boshes and Pegam to him than to give the money of Kidushin to him.
This answer is problematic. The Gemara in Kesuvos (40b) does not give this logic as the reason for the father's entitlement to the payments of Boshes and Pegam of his daughter. The Gemara there says that he receives those payments because he could marry her off to a Menuval or Mukeh Shechin, as Rashi here says. Why does the Gemara here not respond that the law that the father receives the payments of Boshes and Pegam cannot be the source for the law that he receives the money of Kidushin because, on the contrary, the fact that he receives the money of Kidushin is the source for the law that he receives the money of Boshes and Pegam?
Tosfos answers that the Gemara means that even if one finds another source for why the father receives the payments of Boshes and Pegam, that source still would not be able to teach that the father receives the money of Kidushin.
(c) TOSFOS here suggests that the Gemara maintains that a Na'arah may accept Kidushin either by herself or by her father. (This is the way Reish Lakish understands the opinion of the Chachamim in Kidushin 43b.) Accordingly, the Gemara has no doubt that the father may accept Kidushin for his daughter when she is a Na'arah and keep the money of Kidushin. Rather, the Gemara seeks a source that even when the Na'arah accepts Kidushin for herself, the father still receives the money of Kidushin. The Gemara says that the source cannot be from Boshes and Pegam, because those payments are given to the father because he could marry her off to a Menuval or Mukeh Shechin (which he cannot do in the case of a Na'arah who accepts Kidushin for herself). (The Gemara in Kidushin 44a, however, concludes like Rebbi Yochanan, who maintains that only the father may marry off his Na'arah daughter, and not the Na'arah herself.)
(This approach of Tosfos answers another question posed by Rashi here and in Kesuvos (46b, DH Ketanah). Rashi asks why the Gemara does not derive from the verse, "Es Biti Nasati" (Devarim 22:16), that the father may marry off his daughter when she is a Na'arah. Tosfos would answer that although that verse is the source that he may marry her off, the Gemara's question is why he receives the money of Kidushin when she marries herself off.)
(d) None of the above approaches conforms with the way Rashi (DH d'Avuha, and in Kesuvos 46b, DH d'Shayach Bah) explains the Gemara. Perhaps Rashi has a different approach altogether.
Perhaps Rashi understands that the Gemara knows that a father may accept Kidushin for his daughter who is a Na'arah, and that the Na'arah may not accept Kidushin for herself. This law may be derived from the law of Hafaras Nedarim (the right of a father to annul his daughter's vows) since both are laws of Isur (as Tosfos himself asks in Kesuvos 46b, DH Mamona). Accordingly, when the Gemara suggests that the source that the father may marry her off and keep the money of Kidushin is the fact that he receives the money of Boshes and Pegam, it already knows that the father may marry off his Na'arah daughter. The Gemara's only doubt is whether the father keeps the money of Kidushin for himself.
This approach answers another question. If the Gemara does not yet know that the father has the right to marry her off, how does the Gemara derive that right from the law of Boshes and Pegam? The law of Boshes and Pegam teaches only to whom the money goes. It must be that the Gemara knows already that the father may marry her off, and its only question is who receives the money of Kidushin, the father or the daughter.
Why does the Gemara not prove that the father receives the money of Kidushin from the Kal va'Chomer mentioned earlier, that if he is the one who marries her off, certainly he should receive the money? The answer is that the Gemara there means that if the father receives the money of Kidushin in order to marry her off, certainly he keeps that money and does not have to give it to his daughter after he receives it. The verse of "Es Biti Nasati" implies that he actually accepts the money of Kidushin in order to effect the Kinyan of Kidushin (and not just that he may agree to the Kidushin) when his daughter is a Ketanah; if he may accept the money, certainly he may keep it. In the case of a Na'arah, however, although the Gemara knows that he may marry her off, it does not know who accepts the money; does the father accept the money (and keep it), or does the Na'arah accept the money (and keep it)?
The Gemara attempts to prove from the law of Boshes and Pegam that the father is the one who accepts and keeps the money of Kidushin, since that money is a form of profit made by his daughter. The Gemara rejects this proof on the grounds that the father may marry her off to a Menuval or Mukeh Shechin and take money for causing her to suffer Boshes and Pegam.
This approach sheds light on another seemingly inexplicable point in the words of Rashi in Kesuvos (46b). Rashi explains that when the Gemara rejects the proof from Boshes and Pegam, it means that the father could take money for marrying her off with "Kidushei Bi'ah" to a Menuval or Mukeh Shechin. Why does Rashi mention Kidushei Bi'ah? The father could marry her off with any type of Kidushin, including Kesef and Shtar (and afterwards the Menuval will have relations with her).
Perhaps Rashi means that the Gemara already knows that the father has the right to consent to or refuse the Kidushin; the question is only who accepts the money or Shtar of the Kidushin. Since it is possible that the daughter is the one who accepts the Kesef or Shtar, the Gemara cannot mean that the father has the ability to give his daughter to a Menuval in exchange for the right to marry her off, because even though the father agrees to the Kidushin, the Kidushin cannot take effect if his daughter refuses to accept (and to make a Kinyan on) the Kesef or Shtar. Consequently, it is not within the father's power to effect such a Kidushin against his daughter's will. However, he could instruct a Menuval or Mukeh Shechin to go and be Mekadesh his daughter with Bi'ah. Even if the act of Bi'ah is done against the will of the Na'arah, the Kidushin takes effect because it is done with the consent of the father. Consequently, the father is entitled to take the money for the Boshes and Pegam, even if he is not entitled to take the money of Kidushei Kesef.
In contrast, in Kesuvos (40b), Rashi writes that the money of Boshes and Pegam is given to the father because he could marry her off with Kidushei Kesef, Shtar, or Bi'ah to a Menuval or Mukeh Shechin. Rashi there follows the conclusion of the Gemara here, that a father may accept Kesef or a Shtar for his daughter's Kidushin. (M. KORNFELD)