QUESTION: Rav rules that when a man is Mekadesh a woman with a Milvah (loan) which she owes to him, the Kidushin is not valid. When the man originally gave the money to the woman as a loan, he gave it to her to spend -- "Milvah l'Hotza'ah Nitnah" -- and thus at that time it became her money (and not his money that is in her possession). Accordingly, when he later forgoes the loan with intention to be Mekadesh her with its value, he is giving her nothing; the money is already hers, and he is merely pardoning her debt.

The Gemara cites a Beraisa in which the first Tana maintains that when a man is Mekadesh a woman with a Milvah the Kidushin is not valid, and the second Tana maintains that the Kidushin is valid. Both Tana'im agree, however, that a sale takes effect with a loan. (That is, after Reuven lent money to Shimon, he seeks to buy a field from Shimon. Reuven may say that the money he lent to Shimon is now being given to him as payment for the field.) The Gemara asks that if "Milvah l'Hotza'ah Nitnah," the sale should not be valid, just as Kidushin performed with a loan is not valid.

The Gemara clearly understands that Kidushin and Mechirah (a sale) are comparable. If pardoning a loan is considered an act of giving money, it is considered an act of giving money for both Kidushin and Mechirah. If pardoning a loan is not a valid form of Kidushin, this shows that the pardoning of a loan is not considered an act of giving money and cannot be used for any type of Kinyan.

The RAMBAM (Hilchos Ishus 5:13) rules that when a man is Mekadesh a woman with a loan, the Kidushin does not take effect. However, the Rambam elsewhere (Hilchos Mechirah 2:4) rules that one may purchase land with the money of a pardoned loan! How can the Rambam's ruling be reconciled with the Gemara?

ANSWER: The MAGID MISHNEH refers to the Gemara in Bava Metzia (46b) which apparently disagrees with the Gemara here and states that the money of a loan may be used for a sale. The Rambam understands that the Gemara in Bava Metzia does not maintain that the principle of "Milvah l'Hotza'ah Nitnah" (the money of a loan is considered to be consumed) never applies. Rather, the Gemara there agrees that the principle applies for Kidushin and that Kidushin cannot be effected with the money of a loan. Accordingly, the Rambam rules like the Gemara in Bava Metzia (and thus a sale conducted with the money of a loan is valid, while Kidushin performed with such money is not valid).

The AVNEI MILU'IM (28:16) explains that the Rambam's ruling is based on a fundamental difference between an ordinary act of Kinyan (such as a sale) and a Kinyan of Kidushin. An ordinary Kinyan Kesef has only one element: the monetary value of the object acquired. The transfer of ownership of something of value from one person to another is considered a Kinyan. The Gemara in Bava Metzia views a debt (Shibud) as an object of monetary value, which thus may be used to make a Kinyan. (See KETZOS HA'CHOSHEN and other Acharonim.)

A Kinyan of Kidushin, however, involves more than just the transfer of monetary value. The Rambam states that a Milvah cannot effect Kidushin because "there is nothing here that is lasting that provides her now with Hana'ah (pleasure), since the money [of the loan] has already been spent and its Hana'ah is no longer present." The Rambam is describing an additional requirement necessary for a Kinyan of Kidushin to take effect: the woman must receive Hana'ah and not just monetary value. Although the debt (Shibud) may have monetary value, since the money of the loan has already been used the woman receives no actual pleasure from the pardon. She already received the Hana'ah of that money when she spent it. (The Avnei Milu'im suggests that the reason why an additional element of Hana'ah is necessary is that without it, the act of Kidushin is a "Genai" (disgrace) to the woman, as the Gemara mentions earlier.) (A. Kronengold)

QUESTION: Rav rules that when a man is Mekadesh a woman with a Milvah (loan) which she owes to him, the Kidushin is not valid. When the man gave the money to the woman originally as a loan, he gave it to her to spend -- "Milvah l'Hotza'ah Nitnah" -- and thus at that time it became her money (and not his money that is in her possession). Accordingly, when he later forgoes the loan with intention to be Mekadesh her with its value, he is giving her nothing; the money is already hers, and he is merely pardoning her debt.

The Gemara cite proofs for and against Rav's ruling. Why does the Gemara not cite proof for his ruling from the Mishnah (46a)? The Mishnah states that when a man is Mekadesh a woman by giving her dates which the woman eats as she receives each one (which is not worth a Perutah by itself), the Kidushin does not take effect because each date becomes a loan which she owes. The Mishnah clearly understands that when a man is Mekadesh a woman with a loan, the Kidushin does not take effect. Why does the Gemara not mention this Mishnah as proof for Rav's ruling?

(a) The RITVA offers two answers. In his first answer, he suggests that when the end of the Mishnah says that the woman is not Mekudeshes when she eats the dates, it refers back to the case in the beginning of the Mishnah, as Rav himself (46a) explains the Mishnah.

(b) In his second answer, the Ritva explains that there is a difference between the money of a Milvah which has already been used by the borrower and the money of a Milvah which has not yet been used. The Mishnah refers to a case in which the woman already consumed the dates (an act comparable to spending the money of a loan). In such a case, there clearly is no money present to make a Kinyan of Kidushin take effect. Rav adds that even if the money that was lent is still present and has not yet been used, since it has already been handed over to the borrower for the purpose of being spent according to the borrower's discretion, it is considered the property of the borrower and may no longer be used for Kidushin. (A. Kronengold)

QUESTION: Rav Huna rules that one who borrows a tool (such as an ax) from his friend does not acquire it until he uses it (such as to cut wood). Until he uses it, the lender may take it back.

Why does the borrower acquire the tool only when he uses it? In order to use it, he must lift it up in his hands. The act of lifting the object with his hands constitutes an act of Meshichah, which is a valid form of Kinyan for any object of Metaltelin. Why does he not acquire the object through that Kinyan? Even if he has not yet used the ax for cutting, the lender should not be able to take it back since the borrower acquired it merely by lifting it, through Kinyan Meshichah. If, on the other hand, Meshichah is not a valid Kinyan for a borrowed object, why is the act of using it a valid Kinyan?

ANSWER: The RITVA explains that what is acquired through She'eilah, borrowing, is not the actual body of the object, but rather the usage or service the object provides. The act of Meshichah is a valid Kinyan only for the transfer of ownership of the actual body of an object from a seller to a buyer, and not for the mere transfer of the right of usage from the owner to a borrower. The usage of the object is an intangible asset which cannot be acquired through Meshichah; the borrower does not handle that intangible asset when he performs Meshichah with the object.

Although the act of cutting (or other form of usage of the borrowed object) should also not constitute a valid form of Kinyan on the intangible asset of usage, the Rabanan instituted that usage of the object is a valid Kinyan. Although mid'Oraisa the lender may change his mind at any moment and take back the object, in order to prevent complications from arising in normal transactions the Rabanan instituted that this form of Kinyan finalizes the agreement between the lender and the borrower.

The MACHANEH EFRAIM (Hilchos Sechirus 1) writes that an act of ordinary usage of an object is a legitimate Kinyan even mid'Oraisa. Since an act of Kinyan is defined as an act through which one shows ownership, the type of act which must be done is subjective and each object must be judged according to its usage. (See also KETZOS HA'CHOSHEN 189:1.) (A. Kronengold)