KIDUSHIN 8 - 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) APPRAISING THE ITEM USED FOR KIDUSHIN
QUESTION: The Gemara cites two versions of the dispute between Rabah and Rav Yosef, who argue about the law in the case of a man who is Mekadesh a woman with "Shira'i," an item whose value was not appraised before it was given to the woman for Kidushin. According to the first version, they argue about the law in a case in which the man specified the value of the item before he gave it to the woman, and the item indeed is found to be worth the specified value. Rabah rules that the Kidushin is valid even though the item was not appraised before the Kidushin, since it is found to be worth what the man said it was worth. Rav Yosef rules that the Kidushin is not valid because the woman was unaware of the actual value of the item at the time of the Kidushin. Since a woman is not an expert at appraisals of value, she may have thought that the item was worth less than the value the man stated and thus did not have intention to become Mekudeshes to him.
According to the second version of the dispute, Rabah and Rav Yosef argue about the law in a case in which the man did not specify the value of the object. Rabah rules that the Kidushin is valid because Shaveh Kesef is like Kesef. Rav Yosef rules that Shaveh Kesef may be used for Kidushin only when its value is known at the time of Kidushin, just as the value of actual Kesef is known.
Rav Yosef cites proof for his opinion from a Beraisa which discusses Pidyon ha'Ben. The Beraisa teaches that when a person gives a calf to a Kohen and says, "This calf is for the Pidyon of my son," the Pidyon is not valid. However, when he says, "This calf -- which is worth five Sela'im -- is for the Pidyon of my son," the Pidyon is valid. It is obvious that the calf is worth five Sela'im, because if it is not obvious the Pidyon would not be valid even when he specifies its worth. Why, then, is the Pidyon not valid when he does not specify its worth? It must be that the Pidyon is not valid because the calf was not professionally appraised before it was given. When the Beraisa says that the Pidyon is valid when the father specifies its value, it means that the father had the calf's value appraised before he gave it to the Kohen. (See RASHBA.)
Which version of Rav Yosef's opinion does the Beraisa support?
TOSFOS (DH Mena Amina), the TOSFOS HA'ROSH, and the TOSFOS TUCH explain that the Beraisa provides support for the first version of Rav Yosef's opinion. It does not provide support for the second version of Rav Yosef's opinion, because whenever a father gives an item to a Kohen for Pidyon ha'Ben he is considered to have specified the item's value, since Pidyon ha'Ben must be done with five Sela'im. Rav Yosef cannot prove from there that in the case of Kidushin, an item of value must be appraised even when the man who gives it does not specify a value.
How does the Beraisa provide proof for the first version of Rav Yosef's opinion? Rav Yosef rules that the Kidushin is not valid because a woman does not know how to appraise the item of Kidushin and she thinks that it is worth less than its actual value. As a result, she does not have intention to accept it for the sake of Kidushin. In contrast, Pidyon ha'Ben does not depend on the intention of the Kohen. Even if a Kohen does not know how to appraise the calf's value and thinks that it is worth less than its actual value, the Pidyon ha'Ben still should be valid. As long as the item given to the Kohen is worth five Sela'im the son should be redeemed, regardless of the intention of the Kohen.
(a) Perhaps Rav Yosef maintains that "Nesinah Ba'al Korchah" -- an act of giving an item against the will of the recipient -- is not considered a valid Nesinah (see Gitin 75a). Consequently, a father cannot give money (or an item of value) to the Kohen for Pidyon ha'Ben against the Kohen's will. If the Kohen thinks that the item is worth less than the stated value, he has no intention to receive it in exchange for the Pidyon of the child. Since "Nesinah Ba'al Korchah" is not a valid Nesinah, the Pidyon is not valid.
TOSFOS (Gitin 75a, DH Michlal) and the RASHBA, however, write that when the Gemara discusses whether or not "Nesinah Ba'al Korchah" is a valid Nesinah, it refers only to a Nesinah which causes the recipient to lose something in return, such as when the original owner of a house in a walled city attempts to redeem his house by forcing the buyer to take money, in which case the buyer stands to lose the house if the giving of the money constitutes a valid Nesinah. However, when the recipient loses nothing as a result of the forced Nesinah, the "Nesinah Ba'al Korchah" certainly is a valid Nesinah. Tosfos and the Rashba add that for this reason a borrower may pay back a loan against the will of the lender.
Accordingly, in the case of Pidyon ha'Ben, since the Kohen loses nothing by receiving the money, the Nesinah against his will should be a valid Nesinah.
Perhaps a distinction may be made between a forced repayment of a loan and a forced Pidyon ha'Ben based on another point the Rishonim write with regard to "Nesinah Ba'al Korchah" (see Insights to Gitin 75:1
). The Rashba writes that although "Nesinah Ba'al Korchah" may qualify as a Nesinah, the recipient does not acquire the item which is given to him against his will. For example, in the case of a house in a walled city, the Torah requires only that the seller give
money to the buyer of the house; even if the buyer does not acquire the money, the house returns to the original owner as long as the original owner performs an act of giving money to the buyer.
A borrower may repay a loan against the will of the lender because, apparently, the borrower's obligation is to give the money back to the lender, whether or not the lender chooses to take possession of it. In order to fulfill his obligation to pay back the debt, the borrower is required only to make the money available to the lender to take; he is not required to ensure that the lender acquires the money.
Pidyon ha'Ben, in contrast, may be different. Perhaps the Torah requires not only that the father make the money available to the Kohen, but that the Kohen also acquire the money of the Pidyon. If one Kohen refuses to accept it, the money must be given to another Kohen. Accordingly, if the Kohen does not want to accept the item because he does not think it is worth five Sela'im, he does not acquire it and the Pidyon is not valid.
Tosfos (ibid.) seems to disagree with the Rashba. He maintains that if "Nesinah Ba'al Korchah" is considered a valid Nesinah, the recipient acquires the object even against his will (see Insights to Gitin ibid.). However, Tosfos distinguishes between different types of Nesinah in another manner. He distinguishes between a situation in which an object is supposed to be received by a particular person -- in which case it is possible that "Nesinah Ba'al Korchah" is considered a Nesinah, and situations in which there is no requirement that the recipient accept the object -- in which case "Nesinah Ba'al Korchah" is not a Nesinah.
This logic also may explain the difference between Pidyon ha'Ben and the repayment of a loan. Nothing requires this particular Kohen to receive the Pidyon for this child. In contrast, a lender is required to accept the money which the borrower seeks to repay to him.
(b) The PRI CHADASH (Mayim Chaim #5) discusses the question of whether Pidyon ha'Ben may be given against the will of the Kohen. He rejects the abovementioned distinctions between Pidyon ha'Ben and other cases of "Nesinah Ba'al Korchah," and he concludes that when the money for Pidyon ha'Ben is given to the Kohen against the Kohen's will, the Pidyon is valid.
How does the Pri Chadash understand Rav Yosef's proof from the Beraisa? (See HE'OROS B'MASECHES KIDUSHIN.)
RAV SHIMON SHKOP (CHIDUSHEI REBBI SHIMON #16) suggests that if the Kohen thinks that the calf is worth less than five Sela'im, he will sell it to others for the price he thinks it is worth. Accordingly, to him the calf's value indeed is less than five Sela'im. Just as the Gemara says that a Kohen may attribute a higher worth to an item given for Pidyon ha'Ben if he values it more than its actual worth, he may also attribute a lower worth to an item which he feels is worth less than its actual value.
2) PLACING THE MONEY OF KIDUSHIN ON A ROCK
QUESTIONS: The Beraisa teaches that when a man asks a woman to become betrothed to him with a Manah and she tells him to place it on a rock, she is not Mekudeshes. If the rock belongs to her, she is Mekudeshes. Rav Bivi asks what the Halachah would be in a case in which the rock belongs to both the man and the woman.
RASHI explains that the reason why she is Mekudeshes when the rock belongs to her is that the rock is her property (Chatzer) and thus it acquires the money of Kidushin for her, as if she had received it in her hand.
Rashi's explanation -- that the Kidushin takes effect through Kinyan Chatzer -- is problematic for several reasons.
(a) TOSFOS (DH Im Hayah) points out that the Gemara in Bava Basra (84b) teaches that when two partners jointly own a piece of land, one partner cannot give the other an object by placing it on the land. Kinyan Chatzer is not effective when the giver is a joint owner of the Chatzer with the recipient. Why, then, does Rav Bivi consider the possibility that if the rock belongs to both the man and the woman that the Kidushin takes effect? If, as Rashi explains, the only reason why the woman acquires the money when it is placed on her rock is that her rock is like her Chatzer, there should be no doubt about the law when the rock belongs to both of them. She certainly should not acquire the money, since a Chatzer owned by two people cannot acquire an object that one partner gives to the other.
(b) The Beraisa continues and says that when a man asks a woman to become Mekudeshes to him with a loaf of bread and she tells him to give it to a dog, if the dog belongs to her she is Mekudeshes. Rav Mari asks what the Halachah would be in a case in which the dog was not hers but was chasing her, and giving the loaf of bread to the dog would placate it.
When the man gives the loaf of bread to the woman's dog or to the dog that is chasing her, the dog clearly does not acquire the loaf on behalf of the woman through Kinyan Chatzer (because, in the case of her own dog, the dog is not "Mishtameres l'Da'atah," and in the case of the dog that is chasing her, the dog does not belong to her). The reason the Kidushin takes effect in such a case is that the woman demonstrated her consent to the Kidushin and received Hana'ah when the man did what she asked him to do. The reason why the Kidushin does not take effect when she tells the man to give the bread to someone else's dog is that her statement presumably is not a genuine request that he feed the dog, but rather a cynical way of saying that she is not interested in marrying him and thus he should do something else with his bread.
Why does Rashi not explain the case of the rock in the same way? Rashi should explain that the reason why she is not Mekudeshes when she asks the man to place the money on someone else's rock is that her statement is not a display of consent to the marriage. When she tells him to place the money on her rock, she is Mekudeshes because she shows that she consents to the Kidushin and she receives Hana'ah from the man's compliance with her request. When she tells him to place the money on a jointly-owned rock, the Gemara is uncertain whether her request is a show of her consent or a show of disinterest. In either case, the rock does not have to acquire the money for her in order for the Kidushin to take effect.
(a) The RASHBA and RAN explain that even if, normally, one partner cannot transfer ownership of money to the other partner by placing it on their jointly-owned property, nevertheless the woman acquires the money from the man when he places it on their jointly-owned rock. The reason the woman acquires the money is that since the man wants to be Mekadesh her, he resolves in his mind to give to her his portion of the rock on which the money is resting. Since that portion of the rock now belongs entirely to her, it acquires the money for her through Kinyan Chatzer.
This explanation is very difficult to understand. How can the woman acquire the man's portion of the rock just because the man wants to give it to her? In order for her to acquire part of the rock, she must perform a formal act of Kinyan on it!
Perhaps the Rashba and Ran mean that the woman acquires the man's portion of the rock through the mechanism described by the RAN in Nedarim (45b). The Ran writes that although the Halachah in general is that "Ein Bereirah" (a future event cannot determine a retroactive change of status), "Bereirah" does work when one partner of a jointly-owned property uses part of the land. "Bereirah" determines that the part of the land he uses is the portion of the land of which he is the sole owner. Since the woman uses the rock at this moment to acquire the money of Kidushin, the rock underneath the money becomes hers.
However, the Gemara in Bava Basra (cited by Tosfos) contradicts this approach. The Gemara there states that one partner cannot give an object to the other partner by placing it on the jointly-owned property. Presumably, when the giver places the object on the land in order for the recipient to acquire it, since both partners are using the property it still belongs to both of them. Similarly, when the man places the money on the rock for the woman to receive it, both are considered the owners of the rock. How, then, does the woman acquire the money?
The Acharonim suggest several answers.
1. The MACHANEH EFRAIM (Hilchos Mechirah, Kinyan Chatzer #6) writes that partners indeed do not need a Kinyan in order to transfer ownership of the jointly-owned property from one to the other (at least with regard to She'eilah, lending the property to the other partner). When the Gemara in Bava Basra says that one partner cannot transfer ownership of an object to the other partner via the property, it refers to a case in which the object is resting on the property before the two parties agree to the transaction. Since the property belonged to both of them at the time the object was placed there, the property cannot transfer the object from one partner to the other. (The reason for this difference requires further elucidation.)
2. The AVNEI MILU'IM suggests an answer based on the words of TOSFOS in Bechoros (18b, DH Aknuyei). The Gemara there says that when a person leaves his animal to graze in his own land in the care of a shepherd who is a Kohen, and the animal gives birth to a firstborn calf, the owner may grant a portion of his land to the Kohen-shepherd so that he acquires the Bechor immediately upon its birth. The owner does this because he wants to have a part in the Kohen's Mitzvah of raising the Bechor. When the Kohen takes care of his Bechor on the land owned jointly by him and the owner, the owner has a part in the Mitzvah of raising the Bechor. (Had the Kohen not acquired the Bechor, he would have had no Mitzvah to take care of it.)
How does the Kohen acquire a portion of the land? Even if the owner wants to give it to him, the Kohen needs to perform an act of Kinyan on the land in order to acquire it. What act of Kinyan or Chazakah does he perform?
TOSFOS answers that even without an act of Kinyan, the Kohen acquires the land because the owner is "Gamar u'Meshabed Nafshei" -- he decides wholeheartedly that he wants to give a portion of the land to the Kohen. The Avnei Milu'im explains that Tosfos means that because of the owner's desire to fulfill the Mitzvah, he has absolute intent to give the land to the Kohen and he is able to effect a Kinyan even without an act of Kinyan or Chazakah.
The Avnei Milu'im proposes that here, too, since it is a Mitzvah to be Mekadesh a woman (see Insights to Beitzah 36:3
), the man gives his share of the rock to the woman in order for Kidushin to take effect. Since Kidushin is a Mitzvah, he wholeheartedly transfers the property to her and there is no need for a formal act of Kinyan.
3. Perhaps there is a fundamental difference between the case of the Gemara here and the case of the Gemara in Bava Basra. In the case of the Gemara here, the man indeed is able to give the woman his share of the jointly-owned rock without a Kinyan. The Gemara in Bava Basra, which states that when one partner sells an object to the other partner the buyer does not acquire the object when the seller places it on the jointly-owned property, does not conflict with the Gemara here, for the following reason.
The Gemara in Bava Basra refers to a sale. In the case of a sale, there is no certainty that the seller wants to complete the sale as soon as possible. Expediting the completion of the sale may be to the seller's detriment. For example, when the market value of the merchandise rises before the buyer takes possession of them, the seller cannot change the terms of the transaction if the Kinyan has already taken effect. If no Kinyan has taken effect yet, the seller may retract the sale until the buyer agrees to pay more. Therefore, in the case of a sale there is no reason to assume that the seller gives the portion of the land beneath the object to the buyer in order facilitate the buyer's acquisition of the object.
In contrast, expediting the Kinyan of Kidushin is entirely beneficial to the man, while delaying it may be detrimental. He risks nothing by marrying her promptly (because even if he later decides that he does not want to be married to her, he may divorce her at any time). If he delays, however, he risks the possibility that she will change her mind and he will not be able to marry her. Therefore, he presumably has full intention to give her a portion of the rock so that she acquires the money of Kidushin.
(b) Why does Rashi not explain (as Tosfos does) that the question of the Gemara is whether the woman shows consent or not, and not whether the rock acquires the money for the woman or not? Even if the rock does not acquire the money for the woman, the woman still should be Mekudeshes because she shows consent and derives Hana'ah from the fact that the man complied with her request.
The answer is that Rashi maintains that the man's compliance with her request is not considered a sufficient degree of pleasure for her to become Mekudeshes. In order for her to become Mekudeshes, the woman must receive some quantifiable benefit at the time the man fulfills her behest. Hence, if the man gives a loaf of bread to her dog at her request, she becomes Mekudeshes because she receives a quantifiable benefit (the money she saves by not having to buy dog-food). Similarly, if the man gives money to her father or to another designee of her choice, she certainly gains because the person who receives the money feels as though he received it from her (this is the Halachah of Arev). However, when the husband places the money of Kidushin on a rock for her, she derives no direct benefit. Even if the rock belongs to her and she can take the money for herself, until she actually takes the money she receives no benefit from it. Therefore, the man's act of placing money on the rock does not give Hana'ah to the woman and cannot accomplish Kidushin. (As Rashi writes, only if her property is a "Chatzer ha'Mishtameres" and actually acquires the money for her through Kinyan Chatzer does she become Mekudeshes through the normal method of Kidushei Kesef (and not through Kidushei Hana'ah).)
Tosfos, in contrast, maintains that when the man relinquishes money because of her request, the Hana'ah she experiences is enough to effect Kidushin, even if she does not actually acquire the money for herself.
According to this understanding, if the woman initiates the Kidushin by saying, "Put money on my rock and I will become Mekudeshes to you," Rashi will rule that the man's compliance with her request is not considered Hana'ah and thus she is not Mekudeshes, while Tosfos will rule that it is considered Hana'ah and she is Mekudeshes. Similarly, according to Tosfos, if she says to the man, "Throw money into the sea and I will become Mekudeshes to you," since she initiates the procedure and shows interest in becoming Mekudeshes, the Kidushin should take effect because the man loses money at her request.
The dispute between Rashi and Tosfos may depend on how to understand the concept of Kidushei Arev (7a). What Hana'ah does the woman receive in the case of Kidushei Arev? Tosfos maintains that the Hana'ah an Arev receives is that the lender parts with his money at the Arev's request. The woman receives the same type of Hana'ah when the man parts with his money at her request. Rashi, however, maintains that the Hana'ah an Arev receives is the gratitude which the borrower feels for the Arev for enabling him to borrow money. (See RASHBA here.) Accordingly, Kidushei Arev is effective only when the man gives money to a person who is able to feel and express gratitude for the one who enabled him to receive that money. Kidushei Arev is not effective when the man parts with his money at her request by placing it on a rock or throwing it into the sea. (Accordingly, the Gemara does not ask what the Halachah would be in a case in which the dog is jointly-owned by the man and the woman. In such a case, the woman certainly derives benefit by not having to pay for half of the dog's food.)