QUESTIONS: The Gemara explains that the source that Kesef is a valid form of Kidushin cannot be a "Tzad ha'Shaveh" from Shtar and Bi'ah, because Shtar and Bi'ah both effect a Kinyan against a woman's will ("Ba'al Korchah") in other situations (Shtar in the case of a Get, and Bi'ah in the case of Yibum). Kesef, in contrast, never effects a Kinyan against a woman's will. The Gemara asks that Kesef does effect a Kinyan against a woman's will in the case of an Amah Ivriyah (a Jewish maidservant): a man acquires an Amah Ivriyah with Kesef without the consent of the girl. The Gemara answers that Kesef still is not similar to Shtar and Bi'ah because those forms of Kinyan acquire a woman Ba'al Korchah in situations of Ishus (relationship), while Kesef never acquires a woman Ba'al Korchah in a situation of Ishus.

The Gemara later (5b) explains that Rav Huna maintains that the source that Chupah is a valid form of Kidushin is a "Tzad ha'Shaveh" from Kesef, Shtar, and Bi'ah. Since those three forms of Kinyan acquire in other situations (Kesef in the case of Amah Ivriyah, Shtar in the case of Get, and Bi'ah in the case of Yibum) and they acquire for Kidushin as well, Chupah, too, which acquires in other situations (for Nisu'in) acquires also for Kidushin.

The Chachamim disagree with Rav Huna because Kesef, Shtar, and Bi'ah have a "Tzad ha'Shaveh" which Chupah does not have -- they all effect a Kinyan Ba'al Korchah, while Chupah never acquires a woman Ba'al Korchah. The Gemara explains that Rav Huna does not consider this quality a "Tzad ha'Shaveh" because Kesef does not acquire against a woman's will with regard to Ishus.

RASHI explains that Rav Huna means that aside from Kidushei Kesef itself (which does acquire Ba'al Korchah when the father marries off his daughter), there is no form of Kesef which works Ba'al Korchah for marriage. In that sense, Chupah is similar to Kesef because Chupah also does not acquire the woman Ba'al Korchah (except for the Chupah which makes Kidushin, which is derived from the Gezeirah Shavah with Kesef). (If this Chupah acquires for Kidushin as Rav Huna asserts, certainly it acquires the woman Ba'al Korchah when her father marries her off, just as Kesef -- from which this use of Chupah is derived -- acquires her Ba'al Korchah.) (See TOSFOS HA'ROSH to 5b in the name of the RIVA.)

1. Why does the Gemara say that Chupah does not work Ba'al Korchah to make Nisu'in? Since the father may give over his daughter for Nisu'in against her will (see Kesuvos 47a), Chupah does work Ba'al Korchah! What is the difference between giving over his daughter through Chupah and receiving money when he sells his daughter as an Amah Ivriyah (which the Gemara considers Ba'al Korchah)? (RASHBA; see TOSFOS DH Af Ani.)

2. Why does the Gemara (5a and 5b) not consider the "Yi'ud" (designation for marriage) of an Amah Ivriyah a form of Kesef of Ishus which works against the will of the woman?

3. Why does the Gemara (5a) state that Kesef is different in that it does not acquire a woman Ba'al Korchah to make Ishus? Without the verse in the Torah which teaches that Kesef is an effective form of Kidushin, there is no source that Kesef is valid for Ishus even when the woman consents, and that is why Kidushei Kesef cannot be learned from a "Tzad ha'Shaveh" from Shtar and Bi'ah! Shtar works for Ishus in the case of a Shtar Gerushin (a Get), and Bi'ah works for Ishus in the case of Yibum, but Kesef never accomplishes Ishus whatsoever, whether willingly or unwillingly, except for Kidushin. Why, then, does the Gemara say that Kesef does not work to acquire her for Ishus Ba'al Korchah, when in fact it does not work to acquire her for Ishus at all?

(a) RABEINU TAM (cited by Tosfos 5a, DH she'Ken Yeshnan) explains that when the father marries off his daughter (with Kidushin and Nisu'in) against her will, his act is not considered a Kinyan done "Ba'al Korchah" because the Kinyan is done with the permission and consent of the person responsible for the Kinyan: the father. The only cases of a Kinyan Ba'al Korchah are Yibum and Gerushin, which can take effect against the will of the person responsible for the Kinyan (i.e. the woman).

Why, then, does the Gemara state that Kesef may be used Ba'al Korchah in the case of an Amah Ivriyah? The Amah Ivriyah's father is responsible for the sale, but he agrees to the sale and does not sell her against his will. Rabeinu Tam answers that the Kesef of Amah Ivriyah to which the Gemara refers is the Kesef which enables Yi'ud to be done by the master to create Kidushin even against the will of the father. The Gemara teaches that at any point the master may say that he wants the money he originally gave to the father -- as payment for the Amah Ivriyah -- to create a Kidushin, and he does not need to seek the consent of the father.

The reason why the Gemara does not refer to the Kesef of Yi'ud as Kesef of Ishus which works Ba'al Korchah is that the money was given originally to the father for the sake of the purchase of the Amah Ivriyah and not to make Kidushin. It creates Ishus Ba'al Korchah only as a secondary consequence. Hence, it is not comparable to the Shtar of Gerushin or to the Bi'ah of Yibum which directly affect Ishus against the will of the woman. Since Kesef nevertheless creates a Kinyan of Ishus, the Gemara cannot say that Kesef never creates a Kinyan of Ishus.

(b) TOSFOS cites others who explain that when the father sells his daughter against her will, it is a case of Kesef that acquires against the will of the woman. Nevertheless, when the father accepts Kidushin for his daughter (or gives her over for Chupah or Yi'ud) against her will, it is not considered a case of Kesef that acquires Ba'al Korchah. Since it is beneficial for the girl to get married, it is assumed that had she been intellectually mature she would have agreed to the Kidushin. On the other hand, to be sold as an Amah Ivriyah is not beneficial for her, and therefore it is assumed that she would not have agreed to the sale. The RASHBA adds that this is true even when the father marries off his daughter to a repulsive and disgraceful person; it is assumed that a woman prefers to be married than to remain single (see 7a).

Since Kesef creates a Kinyan of Ishus through Yi'ud, the Gemara cannot say that Kesef creates no Kinyan of Ishus.

(c) RASHI (5b, DH Kesef) apparently accepts neither of these two answers. Perhaps Rashi understands that both Chupah and Yi'ud are not examples of a Kinyan Ba'al Korchah because the Kinyan Ba'al Korchah goes into effect before the Chupah or Yi'ud is performed. That is, the reason why Chupah may be done against the daughter's will is that the father has the right to give over his daughter to Kidushin against her will; that right includes the right to empower the husband to complete the Kidushin through Chupah. The Kidushin therefore includes the right to have a Chupah done as well. When the father gives over the daughter to Chupah against her will, he simply completes the Kidushin that already was done against her will. He does not initiate a new act against her will.

The same applies to Yi'ud. The father has the ability to sell his daughter to the master who will treat her like an Amah Ivriyah. The ownership of an Amah Ivriyah entitles the master to have her work for him or to take her as his own wife through Yi'ud. Therefore, the sale of the Amah Ivriyah includes the ability to take her as a wife through Yi'ud against her will. When the master exercises his right of Yi'ud, he does not initiate a new act against the will of the daughter, but rather he merely utilizes the right that he already acquired, against her will, to make her his wife. Therefore, his right of Yi'ud does not prove that the Kinyan of Kesef is a stronger Kinyan (as the sale of an Amah proves).

This approach answers the third question as well. Since Kesef creates a Kinyan of Ishus through Yi'ud, the Gemara cannot say that Kesef creates no Kinyan of Ishus.

QUESTION: Rav Huna maintains that the source that Chupah is a valid form of Kidushin is a "Tzad ha'Shaveh" from Kesef, Shtar, and Bi'ah. Since those three forms of Kinyan acquire in other situations (Kesef in the case of Amah Ivriyah, Shtar in the case of Get, and Bi'ah in the case of Yibum) and they acquire for Kidushin as well, Chupah, too, which acquires in other situations (for Nisu'in) acquires also for Kidushin.

The Chachamim disagree with Rav Huna because Kesef, Shtar, and Bi'ah have a "Tzad ha'Shaveh" which Chupah does not have -- they all effect a Kinyan Ba'al Korchah, while Chupah never acquires a woman Ba'al Korchah. The Gemara explains that Rav Huna does not consider this quality a "Tzad ha'Shaveh" because Kesef does not acquire against a woman's will with regard to Ishus (it works Ba'al Korchah only to acquire an Amah Ivriyah). (The TOSFOS HA'ROSH explains that Rav Huna does not consider the fact that Kesef works Ba'al Korchah in the case of an Amah Ivriyah a legitimate challenge to the Tzad ha'Shaveh, since it is a "Pircha Kol d'Hu," a weak question, and he maintains that only a strong question may be used to refute a Tzad ha'Shaveh.)

Why does Rav Huna not derive from the same Tzad ha'Shaveh that a Kinyan Chazakah or Kinyan Chalifin is able to make Kidushin and be Koneh a woman? These Kinyanim also work elsewhere, and therefore the Tzad ha'Shaveh should teach that they work to make Kidushin.

According to the RASHBA (3a, see Insights there), every Kinyan Chalifin is considered a Kinyan performed with less than a Shaveh Perutah, and since it is a disgrace to a woman to become betrothed with less than a Shaveh Perutah, the Tzad ha'Shaveh cannot teach that it is an effective form of Kidushin. However, TOSFOS there (3a, see Insights there) explains that the only reason why Chalifin (with a Shaveh Perutah) does not work for Kidushin is that there is no source in the Torah which teaches that it works. Why, according to Tosfos, does Rav Huna maintain that Kinyan Chalifin cannot be derived from the Tzad ha'Shaveh? (REBBI AKIVA EIGER, 3a)

(a) The TOSFOS RID emends the Girsa in the Gemara to read that Rav Huna does derive Chupah through a Tzad ha'Shaveh from Kesef, Shtar, and Bi'ah, which acquire a woman Ba'al Korchah, since Chupah also acquires a woman Ba'al Korchah -- when the father marries off his daughter. (The Chachamim who disagree with Rav Huna may understand that when the father marries off his daughter against her will, his act is not considered a Kinyan done "Ba'al Korchah" because the Kinyan is done with the permission and consent of the person responsible for the Kinyan -- the father, as Tosfos explains.)

According to this Girsa, Kinyan Chalifin and Kinyan Chazakah for Kidushin cannot be derived from the Tzad ha'Shaveh because these two forms of Kinyan never work against someone's will.

However, all of the other Rishonim read the Gemara as it appears in our texts. Rav Huna does not derive a Tzad ha'Shaveh from the fact that Kesef, Shtar, and Bi'ah are done Ba'al Korchah.

(b) Apparently, the Gemara takes for granted that one cannot derive through a Tzad ha'Shaveh that a Kinyan which works to acquire ordinary possessions also works to acquire a wife. The Kinyan made to acquire a wife is of an entirely different nature than the Kinyan made to acquire an object. The Kinyan of Kidushin does not create a status of ownership, but rather a status of partnership. (See KOVETZ HE'OROS #61.)

Therefore, when Rav Huna says that since Chupah acquires in other cases (other than Kidushin) the Tzad ha'Shaveh teaches that it can acquire for Kidushin, he means that it is an effective Kinyan for Ishus elsewhere and not just for ordinary property. Since Chupah creates a Kinyan of Ishus for Nisu'in, the Tzad ha'Shaveh teaches that it can create a Kinyan of Ishus for Erusin (Kidushin) as well. In contrast, Chalifin and Chazakah never make a Kinyan of Ishus, and thus the Tzad ha'Shaveh cannot teach that they work for Kidushin.

(When the Gemara says that Chupah cannot be derived from Kesef because Kesef can be used to redeem Hekdesh and to acquire an Amah Ivriyah against her will, it means that these Halachos prove that a Kinyan Kesef is a stronger Kinyan, and therefore even if this form of Kinyan of Ishus makes Kidushin, other forms of Kinyan of Ishus which are weaker might not be able to make Kidushin.)

The Beraisa discusses three expressions that may create Kidushin: "Harei At Mekudeshes Li," "Harei At Me'ureses Li," and "Harei At l'Intu."

HAGA'ON RAV YISRAEL ZEV GUSTMAN zt'l (in KUNTRESEI SHI'URIM 1:2) suggests that these three expressions correspond to the three types of Kinyan which Kidushin creates (see Background to Kidushin 2:1). The first type of Kinyan which Kidushin creates is a Kinyan of Ishus, which permits a man to live with his wife and which creates a familial relationship ("She'er") between them.

The second type of Kinyan is a Kinyan Isur, which prohibits her to every other man in the world.

The third type of Kinyan is a monetary Kinyan which grants the husband certain rights over the wife and her possessions, and which grants the wife the right to eat Terumah if her husband is a Kohen.

Each of the three phrases in the Beraisa emphasizes one of the three Kinyanim which Kidushin creates. "Mekudeshes" emphasizes the Kinyan Isur (as the Gemara on 2b compares the word "Mekudeshes" with the word "Hekdesh"). "Me'ureses" represents the monetary Kinyan (which come about through the Erusin). "Harei At l'Intu" ("Behold, you are my wife") represents the Kinyan of Ishus, the husband-wife relationship. If a man betroths a woman with any one of these phrases, he creates a full-fledged Kidushin in which all three Kinyanim take effect.

Rav Gustman adds that this may explain why Rashi emphasizes that a man must say either "Harei At Mekudeshes" or "Harei At Me'ureses." One might have thought that a man must say all three phrases in order to create the three Kinyanim of Kidushin. Therefore, Rashi points out that any one of them creates a complete Kidushin.