A Case in Point: A case came before Rabein Tam regarding the son of ha'Rav R. Oshaya ha'Levi who said to a wealthy man 'Your daughter is betrothed to me' without specifying which daughter ...

Opinion #1: And Rabeinu Tam ruled that she was Mekudeshes, certainly assuming that he had been Meshadech one of them by name and was then Mekadesh her S'tam, since he for sure had her in mind ...

Opinion #1 (cont.): But even if he had not been Meshadech her by name, only the father had given his consent and declared 'I will give you P'lonis', we can assume that it was her that he had in mind with the Kidushin ...

Reason: Because "The remnant of Yisrael do not act dishonestly and do not speak lies" (See Masores ha'Shas).

Opinion #1 (cont.): Moreover, even if he (the father) did not specify the daughter by name, we can take for granted that he betrothed his eldest daughter ...

Reason: Based on the Pasuk in Bereishis (29) "It is not done in our place to give a younger daughter before the older one".

Refutation: R. Menachem mi'Yuni however, disagreed with him (Rabeinu Tam); he claimed that this is a case of 'Someone who betrothed one of two sisters' ...

Refutation: And if we were to rule like Rabeinu Tam, it would be neither like Rava nor like Abaye ...

Refutation (cont.): Since even according to Abaye, who says that the Kidushin is valid, that is only with regard to force him to give her a Get ...

Refutation (concl.): In which case here too, he is obligated to give her a Get.

Retraction: Rabeinu Tam did in fact, retract, and withdrew his ruling.

Explanation #1: Rashi explained the 'Lamed' with reference to 'A post that stands by itself' (Eruvin, 15a).

Explanation #2: Rabeinu Tam however, explains that the 'Lamed' refers to 'The days after birth on which she does not have a sighting, which do not count towards the counting of a Zavah' (Nidah 37a).

Explanation #3: Whereas the b'Nei Narvuna attribute it to the Machlokes in Perek Kol Sha'ah (Pesachim, Daf 25b) 'Efshar ve'Lo ka'Mechaven' - where the Halachah is like Abaye.

Observation: Nowhere is the Si'man 'Ya'al K'gam' mentioned other than by 'Yi'ush she'Lo mi'Da'as' and 'Eid Zomem' (See Maharsha).

Question: Why does it not also list 'Pasha bah ve'Yatza'as le'Agam u'Meisah ke'Darkah', where Abaye quoting Rabah rules "Chayav", and Rava quoting Rabah rules "Patur" (Bava Metzi'a Daf 36b) - and the Halachah is like Abaye? ...

Proof: Since the Gemara there (on Daf 42a) concludes that the Halachah is 'Techilaso bi'Peshi'ah ve'Sofo be'Oneis is Chayav', as the Rach explains.

Proof (cont.): The Sefarim do not have the text 've'Hilch'sa' in that Sugya, but it is written in the Halachos Gedolos, and in the Sefarim by 'ha'Mafkid Ma'os eitzel Chavero' in the Sugya of 'Tzerifa de'Urveni' (Bava Metzi'a, 42a) See Masores ha'Shas.

Answer: It would seem that the reason that that case is not included in 'Ya'al K'gam' is because the Halachah was only issued later by the Rabbanan Sevura'i.

Explanation #1: Rashi explains that we do not say it is not his Mamon to betroth a woman, because it is a matter of acquiring, and since he acquires it, it belongs to him in all respects.

Explanation #2: One can also answer that, although it is Asur to purchase articles with it, as the Torah writes "for food", 'and not for business', that is Lechatchilah, but Bedi'eved, the sale is valid.

Explanation #2 (cont.): Likewise, a woman is betrothed Bedi'eved.

Proof: And this is implied later (on Daf 56b) when the Mishnah rules 'If he sold them and betrothed a woman with the proceeds, she is Mekudeshes'.

Implied Question: Even though her Tzarah is not believed to testify that her husband died, because she might be out to cause her trouble ...

Answer #1: That applies to testimony without an action, but her Shelichus which involves an action, is effective.

Answer #2: Alternatively one can explain the Chidush in that a woman can be a Shali'ach for her friend even if she received the Kidushin S'tam (See Rosh, Si'man 26&27).

Question: What is the Gemara's question? Perhaps Rebbi Yochanan's statement is confined to the theft of others, but as far as her theft is concerned, he argues with Rav, who says that she is not Mekudeshes? ...

Proof: Since we will learn shortly that she is more Mekudeshes by her theft than she is by the theft of others?

Answer: The fact that her theft is more of a Kidushin than the theft of others speaks specifically where there was a Shiduch ...

Answer (cont.): But if there was not, then to the contrary, her theft is worse than that of others ...

Reason: Because she can claim 'Yes, I took it, but I took what was mine!'

Answer (cont.): And Rav is speaking where there was no Shiduch.

Question: What is Rebi Yochanan coming to teach us when he says 'Eino Yachol Lehakdish? Is it not obvious ...

Source: Seeing as there are many Mishnahs and Beraisos that theft only acquires with Yi'ush? ...

Example: Such as the Beraisa in 'Eilu Metzi'os' - 'If a river carried away his (Re'uven's) beams, pieces of wood and stones, if he was Meya'esh, then he (Shimon) acquires it' - implying that if he was not Meya'esh, then he does not acquire it?

Answer: Rebbi Yochanan is coming to teach us that the owner cannot declare them Hekdesh, since they are not in his domain, but as far as the Gazlan is concerned, there is no Chidush, as Tosfos explained.

Question: According to Rav too, who said earlier that 'Kidshah be;Gezel, Einah Mekudeshes', what is he coming to teach us, we know from an explicit Mishnah that if the owner is not Meya'esh, it does not belong to him (the Gazlan)?

Answer: WE nevertheless need the ruling of Rav - because from the Mishnah alone we would have thought that it is Davka regarding money which one only acquires with Yi'ush, that Beis-Din obligate him to pay ...

Answer (cont.): But that le'Chumra, even though the owner was not Meya'esh, .we will say that if he betrothed a woman with it, she is betrothed and requires a Get

Answer (concl.): Hence Rav's ruling is necessary to teach us that she is not Mekudeshes.

Clarification: Now it makes sense why the Gemara asks from Rebbi Yochanan's own statement 'Did he not say that?' (See Maharsha) ,,,

Clarification (cont.): In other words, did he himself not say the same thing, when he ruled that 'He cannot be Makdish' because it is not his' - and that it is not even subject to an Isur de'Rabbanan?

Clarification (cont.): In which case by Kidushin as well, we will not be strict to make her require a Get.

Conclusion: And that explains why the Gemara asks from Rebbi Yochanan himself.

Clarification: The Gemara there (in Bava Metzi'a, Daf 22a) establishes the case that he appointed him a Shali'ach.

Question: In that case, why does the Gemara call it 'she'Lo bi'Reshus'?

Answer: What it means is that the fact that he took T'rumah from the best quality was without permission ...

Answer (cont.): In which case, we must say that in the case of the 'Parzuma' too, he appointed him a Shali'ach ...

Proof: Otherwise, what is the connection between the two cases?

Question: Why is this any worse than 'Someone who betroths a woman on condition that he will speak on her behalf to the ruler' (later, Daf 63a), where she is Mekudeshe, even though he did not give her anything - other than Hana'ah?

Answer: The cases are not comparable, since there he is permitted to accept remuneration for his service, and it is as if he gave her a P'rutah, whereas here the benefit of the favor that he did her is not his ...

Reason: Seeing as it is the property of Hash-m, and he is not permitted to take money for the benefit that he gives her ...

Implied Question: And although it is worth a P'rutah, since he is able to give it to a Kohen ...

Answer: Nevertheless, since it is the property of Hash-m, she is not Mekudeshes, and it cannot be compared to 'on condition that I will speak on your behalf to the ruler. Tosfos Yeshanim'].

Refuted Explanation: Rashi explains that a woman may not enter the Azarah, as the Mishnah says in the first Perek of Keilim.

Refutation #1: But this is not correct, since nowhere do we find a prohibition against women entering the Azarah ...

Proof: Because in the first Perek of Keilim, the Mishnah states - 'The Cheil is more Mekudash than it (the Har ha'Bayis) in that a Tamei Meis may not enter it; The Ezras Yisrael is on a higher plane - inasmuch as a Mechusar Kipurim may not enter it, and it is subject to Kareis ...

Proof (cont.): And on a higher plane still is the Ezras Kohanim - which is out of bounds to a Yisrael, unless they need to, such as for Semichah, Shechitah or Tenufah, but it said nothing about women not entering.

Refutation #2: Furthermore, the Mishnah in Perek Kol ha'Poslin (Zevachim, Daf 31b) states that 'Women are eligible to Shecht', in which case they are permitted to enter the Azarah?

Refutation #3: Moreover, a Sotah and a Nezirah must enter the Azarah to wave?

Refutation #3: Tosfos therefore explains that what the Gemara is asking it is not common for women to enter the Azarah to become betrothed, since it is degrading and therefore unusual, in which case the Tana would not refer to it.

Question: Let the Torah leave out "L'cha", which implies 'all your needs, and it will no longer need to insert 'Eish"? (Tosfos Yeshanim)].