4b----------------------------------------4b

1) TWO SOURCES FOR KIDUSHEI KESEF
QUESTIONS: The Gemara cites two sources for Kidushei Kesef. The first source is the verse, "v'Yatz'ah Chinam Ein Kasef" (Shemos 21:11): the status of the Jewish maidservant changes (i.e. she goes free) with no money paid to her master, which implies that there is someone else (an ordinary Jewess whose father marries her off) whose status changes with money paid to her master (i.e. her father). The second source is the verse, "Ki Yikach Ish Ishah" (Devarim 24:1): the word "Yikach" refers to a monetary transaction (as in Bereishis 23:13).
The Gemara explains that both sources are necessary. Had the Torah written only the verse "v'Yatz'ah Chinam" and not "Ki Yikach," one might have thought that if the woman gives money to the man to be Mekadesh him, the Kidushin takes effect. The verse "Ki Yikach" teaches that the man must be the one who initiates the Kidushin; he must give money to the woman to "take" her, and not vice versa.
RASHI (DH Heicha d'Yahavah Ihi) explains that without the verse of "Ki Yikach" one might have thought that the woman may give the money to the husband and say to him, "Hiskadesh Li" -- "Be betrothed to me."
Rashi's explanation is unclear.
(a) The Gemara earlier (2b) teaches that the word "Mekudeshes" means "prohibited to the entire world like Hekdesh." A man, however, cannot become "Mekudash" in the sense that he becomes prohibited to all other women in the world through Kidushin (since he may marry more than one woman). Why, then, does Rashi write that one might think that the woman may say to the man, "Harei Atah Mekudash Li"? (TOSFOS DH Heicha)
(b) The Gemara (4a) explains that the verse, "v'Yatz'ah Chinam Ein Kasef," teaches that when a Jewish maidservant goes free with Simanim (the appearance of signs of maturity), she does not pay her master for her freedom, but when a daughter leaves the domain of her father, her father does receive money. Hence, it should be clear already from this verse ("v'Yatz'ah Chinam") that the money is given by the man to the woman (or to her father) and it is not given by the woman to the man. (TOSFOS)
ANSWERS:
(a) TOSFOS (DH Heicha) explains that the Gemara does not mean literally that one might have thought that the woman could give money to the man for Kidushin. Rather, the Gemara means that one might have thought that the woman may tell the man that she is making Kidushin. The wording she may use is not "Harei Atah Mekudash Li," but "Harei Ani Mekudeshes Lecha" -- "I am Mekudeshes to you" (like the wording quoted by the Beraisa on 5b), because Kidushin prohibits her to the rest of the world.
(b) Rashi understands the Gemara in its literal sense, that one might have thought that the woman may give money to the man and be Mekadesh him. Perhaps Rashi understands that "v'Yatz'ah Chinam" does not prove that the only way to make Kidushin is for the husband to give money to the woman or to her father. That verse teaches merely that one way to make Kidushin is for the husband to give money to the woman or to her father.
Why, though, does Rashi write that the woman says to the man, "You are Mekudash to me"?
Although these are the words of Rashi as quoted by Tosfos, the words of Rashi in our text differ slightly. Rashi does not write that the woman says, "Harei Atah Mekudash Li." Rather, Rashi writes that she says, "Hiskadesh Li," which means "become Mekudash to me." Perhaps the word "Hiskadesh" needs to be vowelized differently and read as a question which the woman asks the husband: "Ha'tekadesh Li?" -- "Will you be Mekadesh me?"
Why, though, does Rashi write that the woman uses the question form and not the statement form which Tosfos uses ("Harei Ani Mekudeshes Lecha" -- "I am hereby Mekudeshes to you")?
The answer may be based on the reason why, when a man betroths a woman with Kidushei Bi'ah, he first must ask the woman to become Mekudeshes to him with Bi'ah instead of making a statement that she is Mekudeshes to him with Bi'ah (see Insights to Kidushin 2:2). The statement form can create Kidushin only when the inaction of the woman proves her acceptance of the Kidushin. When the man gives the woman money or a Shtar and tells her "Harei At Mekudeshes Li," her inaction (holding the Shtar or keeping the money) proves that she accepts it as Kidushin, because she realizes that if the Kidushin is valid she will immediately become prohibited from marrying anyone else. Since she knows that the acceptance of the Kidushin has an immediate effect on her, she must protest without delay if she does not want it to take effect.
In contrast, for the husband there is no immediate effect; even if the Kidushin is valid he may marry other wives. (The obligations of "She'er, Kesus, and Onah" of Ishus do not have an immediate effect upon him, and they are not directly implied by the word "Mekudeshes," which means "prohibited to the world like Hekdesh.") Accordingly, when the woman tells the man, "Harei Ani Mekudeshes Lecha," he does not deem it necessary to protest the Kidushin immediately and his inaction does not prove that he indeed accepts the Kidushin. The only way the woman can know beyond a doubt that he accepts the Kidushin is if she hears him say so explicitly. Therefore, Rashi explains that the case which the verse excludes is a case in which the woman asks the man, "Do you want to be Mekadesh me," and he answers, "Yes." The Kidushin in such a case would have been valid if not for the verse of "Ki Yikach."
According to this approach, Rashi and Tosfos may follow their respective opinions as expressed elsewhere. TOSFOS earlier (3b, DH v'Chi Teima) writes that before the Gemara expounded the verse "v'Yatz'ah Chinam," it assumed that either a Na'arah may accept Kidushin for herself or her father may accept Kidushin for her. When her father accepts Kidushin for her, he keeps the money, and when she accepts Kidushin for herself, she keeps the money. The source the Gemara cites to prove that this is not true is "v'Yatz'ah Chinam," which teaches that the father always receives the money of Kidushei Kesef for a Na'arah (even when she accepts Kidushin for herself, according to those who permit a Na'arah to do so; see Kidushin 43b). According to Tosfos, "v'Yatz'ah Chinam" does not allow for the possibility that the woman could give money to the man for Kidushin, since the father must receive the money when he performs Kidushei Kesef. Therefore, Tosfos explains that the Gemara here means that one would have thought that although the man gives the money to the woman, she may be the one who says, "I am Mekudeshes to you." Since the Gemara's point is that one might have thought that the woman should perform the speaking (but not the act of giving), Tosfos must explain that she simply says "Harei Ani Mekudeshes Lecha" as a statement, because if she would ask him, "Do you want to be Mekadesh me," and he would reply, "Yes," his positive reply would satisfy the requirement of "Ki Yikach." (According to Tosfos, the verse teaches the logic that when the woman makes a statement that she is Mekudeshes and the husband does not respond, his lack of response does not indicate his agreement to the Kidushin.)
In contrast, RASHI (3b, DH v'Eima Hani Mili) explains that without the verse of "v'Yatz'ah Chinam" one would have thought that only a Na'arah is able to accept her Kidushei Kesef and not her father. The verse "v'Yatz'ah Chinam" teaches that the father also may accept the Kidushei Kesef on behalf of his Na'arah daughter. Accordingly, "v'Yatz'ah Chinam" does not prove that the father always receives the money of Kidushin of his daughter. Therefore, the Gemara states that without the verse of "Ki Yikach" one would have thought that the woman may give money to the man for Kidushin. The Chidush of the Gemara is that the husband must perform the act of giving and not the wife. The point of the Gemara is not who is supposed to do the speaking. For this reason, Rashi explains that the word "v'Kidashto" means that she simply asks him if he wants to be Mekadesh her, and he consents. The verse teaches that such a Kidushin is not valid because it is not enough that the husband expresses his consent -- he must also be the one who gives the money.

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