KIDUSHIN 6-7 - sponsored by Asher and Etti Schoor of Lawrence, NY. May they be blessed with a year filled with the joy of the Torah and see their children continue to grow in Avodas Hashem.
1) KIDUSHIN WITH A LOAN
QUESTION: Abaye teaches that when a man is Mekadesh a woman with a loan which she owes him, the Kidushin does not take effect. When a man is Mekadesh a woman with "Hana'as Milveh" (the "pleasure of [having] the loan"), the Kidushin does take effect, even though it involves "Ha'aramas Ribis." The Gemara explains that "Hana'as Milveh" means that the man "lengthened the time" of her loan.
Why is the benefit the woman receives from having the term of her loan extended able to effect Kidushin, but the benefit she receives from the complete cancellation of her debt is not?
If Abaye's intention is to differentiate between Kidushin with the actual money which the woman owes him and Kidushin with the Hana'ah (pleasure) which she receives when he extends the term of the loan, why does Abaye say that Kidushin may be made with the Hana'ah which she receives from the man when he extends the term of the loan? He should say that Kidushin may be made with the Hana'ah which she receives from the fact that the man loaned money to her, or from the cancellation of the loan. Why does he specifically mention the Hana'ah she receives from the extension of the term of the loan?
(a) RASHI (DH Tzericha) explains that "Hana'as Milveh" refers to the Hana'ah the woman experiences when the man gives her extra time to repay the loan. Rashi does not specify whether the man gives her extra time after the loan becomes due or before the loan becomes due. In either case, the man may be Mekadesh the woman with the Hana'ah she experiences from the very knowledge that she has more time to repay the loan. Many other Rishonim (including the RAMBAN, RASHBA, and RITVA) agree with Rashi's explanation.
According to Rashi, why does Abaye not mention a case in which the man is Mekadesh the woman with the Hana'ah of giving her a loan, rather than the Hana'ah of letting her keep a loan longer? The answer is that Rashi maintains that the man is prohibited from betrothing her with the loan at the time that the loan is given because that would constitute Ribis d'Oraisa. (See (c) of following Insight. Rabeinu Tam, cited by Tosfos DH d'Arvach, suggests another reason which applies even according to the Rishonim who maintain that this does not constitute Ribis; see (c) below.)
Why does Abaye not mention the case in which the man is Mekadesh her with the Hana'ah of the cancellation of the loan? The RAMBAN explains that Abaye wants to teach that there is an Isur d'Rabanan against betrothing a woman by extending the loan. Such an act constitutes "Ha'aramas Ribis." This prohibition, however, does not apply to one who betroths her by canceling the loan (and not by extending it).
Alternatively, the RAMBAN and RAN explain that if the man is Mekadesh her with the Hana'ah of the cancellation of the loan, the Kidushin will not be valid. Since the woman gains a clearly defined sum of money in such a case, she assumes that the Kidushin is being effected by the money itself (which is presently in her hands and is not his to give) rather than by the Hana'ah of the cancellation of the loan.
(b) The RIF and RABEINU TAM (cited by Tosfos, DH d'Arvach) present a similar explanation to that of Rashi, that Hana'as Milveh refers to the Hana'ah the woman experiences when the man gives her extra time to repay the loan. However, they add that the man gives her the extra time after the time has arrived for the loan to be repaid.
Apparently, these Rishonim maintain that Kidushin cannot be effected merely by giving the woman the knowledge that she will be able to keep the loan longer when the original time of payment eventually arrives. Some tangible benefit must be realized immediately at the time of the Kidushin itself. Accordingly, when the man gives her extra time to pay back after the time to repay the loan has arrived, the woman benefits immediately from the extension of the term of the loan.
According to these Rishonim, Abaye does not mention a case in which the man attempts to betroth the woman by canceling the loan when it is due, or by giving her the loan in the first place, for the reasons mentioned above according to Rashi.
(c) The RA'AVAD (in Perush ha'Ra'avad and in Hilchos Ishus 5:15) adds that not only has the time to repay the loan arrived, but the woman is ready to repay the loan with money that she is holding in her hands. (This is also the opinion of the Rif, according to the "Rif's manuscripts from Spain" quoted by the TOSFOS RI HA'ZAKEN.) Why, though, must she be holding the money in her hands?
The RASHBA writes that according to the Ra'avad, since she is holding the money in her hands the money is considered as though it has already been returned to the man, and now he is Mekadesh the woman with that money. However, the Ra'avad's words do not express this idea. He clearly writes that the Kidushin is effected by the Hana'ah the woman receives by not having to repay the loan.
The EVEN HA'AZEL (Hilchos Malveh 6:3, and summarized briefly in Hilchos Mechirah 7:4) explains that according to the Ra'avad, the woman's Hana'ah must be related to a defined object in order for it to effect Kidushin. That is why the coins she intends to use to repay the loan must be in her hands at the time of the Kidushin.
According to the Ra'avad, Abaye does not mention a case in which the man attempts to betroth the woman by canceling the loan when it is due, or by giving her the loan in the first place, for the same reasons mentioned above according to Rashi.
(c) RABEINU CHANANEL, cited by the RI HA'ZAKEN, RAMBAN and other Rishonim, explains that "Hana'as Milveh" means that the woman returned the money she owed to the man, and he returned it to her to keep as a loan for another few days for the sake of Kidushin. Abaye does not refer to Kidushin performed with the Hana'ah of holding on to money. Kidushin can be effected only when money is actually handed over.
Why is it not possible to effect Kidushin through the Hana'ah of receiving money, or the Hana'ah of holding on to money for an extended period of time? Why is this case different from the case of a man who is Mekadesh a woman by dancing or performing for her (see Kidushin 63a)? Apparently, Rabeinu Chananel maintains that in order for Hana'ah to effect Kidushin, something tangible and defined must be given to the woman at the time of the Kidushin (similar to the logic of the Even ha'Azel in (b) above). The dance or performance which the man does at the time of the Kidushin can effect Kidushin, but knowledge that the term of her loan has been extended is not a tangible or defined form of pleasure. (Rabeinu Chananel apparently disagrees with the Ra'avad and maintains that even if the woman is holding coins in her hands and is ready to repay the loan, those coins are not inherently related to the loan. Therefore, they are not considered defined objects which she gains through his extension of the loan.)
According to Rabeinu Chananel, it is clear why Abaye does not say that Kidushin may be made with the Hana'ah which she receives from the fact that the man cancels the loan. In such a case, no defined object is given over at the time of Kidushin, and therefore the Kidushin is not valid. However, why does Abaye not mention that Kidushin may be made with the Hana'ah which she receives from the fact that the man loaned money to her in the first place? Why does he mention a case where the woman already owed money, and when she repaid it he returned it to her as a new loan? Rabeinu Chananel cannot consider such a case to involve Ribis d'Oraisa, because if he does, his own case also constitutes Ribis d'Oraisa!
Apparently, Abaye's wording implies that he wants to present a case of Hana'as Milveh (which effects Kidushin) which parallels the case of Mekadesh b'Milveh (which does not effect Kidushin). Since the case of Mekadesh b'Milveh refers to Kidushin made through a pre-existing loan, Abaye describes how a man may be Mekadesh a woman through Hana'as Milveh with a pre-existing loan. This can be done only if the loan is repaid and then returned to the woman.
This is evident from the words of the RAMBAM (Hilchos Ishus 5:15). The Rambam rules like Rabeinu Chananel, that Kidushin can be effected only at the time the man actually gives to the woman the money of the loan. However, he explains that Kidushin made with Hana'as Milveh means that the man gives the woman a loan and says that he is Mekadesh her with the Hana'ah she experiences from the fact that she may use this money for a set amount of time.
The Rambam does not mention that there was a pre-existing loan which was repaid and then re-loaned. Rather, the Halachah applies the same to a case in which there was no pre-existing loan.
In fact, the Rambam's words imply that this is exactly what the Gemara means when it says that the man extended the term of the loan for her. He gave her a loan and specified a length of time during which she is permitted to use the money.
2) KIDUSHIN AS INTEREST FOR A LOAN
QUESTION: The Gemara teaches that when a man attempts to betroth a woman with "Hana'as Milveh" by giving her the pleasure of keeping the loan longer (see previous Insight), he transgresses an Isur d'Rabanan of "Ha'aramas Ribis."
Why, though, is such an act not forbidden mid'Oraisa, since the lender receives in return for his loan not only the eventual repayment but also a wife?
(a) The TOSFOS RI HA'ZAKEN and LECHEM MISHNAH (Hilchos Ishus 5:15) explain that through the bond of Kidushin each party becomes obligated to the other. Not only does marriage require the woman to fulfill certain responsibilities towards the man, but it also requires the man to fulfill his responsibilities as a husband. Therefore, Kidushin cannot be considered Ribis d'Oraisa because not only does the borrower (the woman) give something extra to the lender, the lender also gives something extra to the borrower.
The RITVA adds that a man who chooses to marry is "k'Koneh Adon l'Atzmo" (literally, "he acquires a master for himself"). This means that his responsibilities to his wife are greater than his wife's responsibilities to him.
(b) The RASHBA explains that when a man is "Koneh" a wife, the woman does not become the material possession of the husband like the rest of his property. Rather, through the Kinyan of Kidushin she obligates herself to her husband in certain ways. The prohibition of Ribis d'Oraisa forbids the borrower only from giving tangible items to the lender. It does not forbid the borrower from merely obligating himself to the lender. Therefore, Kidushin is not considered Ribis. (This may be the intention of Rashi as well.)
TOSFOS (DH d'Arvach) rejects this explanation. Since Kidushin is accomplished only with a Perutah or more, the obligations of Kidushin have the monetary value of at least a Perutah. If she gives herself to the man through Kidushin in return for keeping the loan longer, she effectively gives him a commodity worth a Perutah in return for keeping the loan, and thus the Kidushin should constitute Ribis d'Oraisa.
(c) RAV Y. S. ELYASHIV shlit'a (as cited in HE'OROS B'MASECHES KIDUSHIN) points out that "Agar Natar," the act of taking money for allowing a borrower to keep a loan for a longer time, certainly does not constitute Ribis d'Oraisa. Ribis d'Oraisa exists only when the borrower gives something to the lender at the time he receives the loan. Accordingly, perhaps the Chachamim did not prohibit the borrower from giving a benefit to the lender (such as the Kidushin of a woman) for extending a loan. They prohibited the borrower only from giving a tangible object, or from promising to give a certain amount of money, in return for the extension of the term of the loan. This is what Rashi means when he writes that this case does not constitute "Agar Natar" since the woman did not given the man a set sum.
The TALMID HA'RASHBA cites such an explanation in the name of the RI MI'GASH. (See also RAMBAN here and HAGAHOS RAMACH to Hilchos Ishus 5:15, who seem to be of the same opinion.)
(d) TOSFOS records an entirely different explanation in the name of RABEINU TAM. Rabeinu Tam explains that the woman did not owe any money to the man who is Mekadesh her. Rather, she owed money to someone else. The man was Mekadesh her by paying (or convincing) the lender to extend the time of the loan, and thereby he gave the woman the benefit of the value of a Perutah. The Gemara in Bava Metzia (69b) explains that if the borrower himself is not the one who pays the lender to extend the time of the loan, the payment for the extension is not considered Ribis or "Agar Natar."