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Kidushin 43
KIDUSHIN 43 (28 Sivan) - dedicated to the memory of Hagaon Rav Yisroel Zev
[ben Avrohom Tzvi] Gustman ZT'L (author of "Kuntresei Shi'urim" and renowned
Dayan of pre-war Vilna) on his Yahrzeit, by a student who merited to study
under him.
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1) [line 1] TEVICHAH U'MECHIRAH - slaughter or sale (TASHLUMEI ARBA'AH
VA'CHAMISHAH - a thief's quadruple and quintuple restitution for the theft
and slaughter or sale of a sheep or ox, respectively)
(a) If a thief surreptitiously steals an object from a fellow Jew, and is
found guilty of the theft in court based on the testimony of valid
witnesses, he must return the object (if it is still in its original state)
or its value (if it is not) to its owner (Vayikra 5:23). In addition, the
thief is obligated to pay the victim of the theft the value of the stolen
object a second time. Restitution of the value of the stolen object is
called "Keren," and the additional payment is known as "Kefel" (See
Background to Kidushin 18:2).
(b) If the object that was stolen was a live sheep or ox, and the thief
either slaughtered or sold it, the Torah (Shemos 21:37) places an even
stiffer fine on the thief. In the case of a stolen sheep that was
slaughtered or sold, the thief must compensate the owner a total of four
times its actual value ("Arba'ah"), while in the case of a stolen ox that
was slaughtered or sold the thief must compensate the owner a total of five
times its actual value ("Chamishah"). This law does not apply to any other
object or animal that is stolen. Chazal (Bava Kama 79b) explain that the
Torah was more lenient with a person who steals a sheep than with one who
steals an ox, since he already suffered a somewhat demeaning experience of
walking with a sheep on his shoulders (as opposed to the ox-thief, who
presumably led the ox on foot before him).
(c) A thief does not pay Arba'ah va'Chamishah for slaughtering a sheep or ox
unless he, or a person he appoints, performs a proper ritual slaughter (i.e.
a Shechitah of the type that normally permits an animal to be eaten).
According to some Amora'im (Bava Kama 68a), a thief does not pay Arba'ah
va'Chamishah for *selling* a sheep or ox unless he sold it after "Ye'ush
Ba'alim" (i.e. the owner lost all hope of recovering the sheep or ox, see
Background to Gitin 37:30:a), while according to others he only pays Arba'ah
va'Chamishah if he sells it *before* Ye'ush Ba'alim.
(d) Arba'ah va'Chamishah, like any other payment that involves
over-compensation for a monetary loss, is considered a "Kenas" (penalty)
rather than "Mamon" (compensation). As is true of every Kenas, a thief does
not have to pay Arba'ah va'Chamishah if he admits to his guilt of his own
accord. Only if witnesses testify to his guilt in court must he pay. If he
admits to his guilt of his own accord, and later witnesses testify to his
guilt in court, the Amora'im argue as to whether or not he must pay Arba'ah
va'Chamishah (Bava Kama 74b-75a -- he is exempted from payment, according to
the lenient opinion, only if his admission took place under specific
circumstances). Until he is obligated to pay the Arba'ah va'Chamishah in
court, the thief is fully exempt from payment and does not even have a moral
obligation to pay it on his own accord (RASHBA Bava Kama 74b, see also
RAMBAN in Milchamos HaSh-m at the end of the third Perek of Kesuvos).
2) [line 5] "[KI YIGNOV ISH SHOR O SEH,] U'TVACHO O MECHARO; [CHAMISHAH
VAKAR YESHALEM TACHAS HA'SHOR, V'ARBA TZON TACHAS HA'SHE.]" - "[If a person
steals an ox or sheep and then] slaughters or sells it, [he must repay five
oxen for each ox, and four sheep for each sheep.]" (Shemos 21:27)
3a) [line 10] SHECHUTEI CHUTZ
The Torah obligates a person to bring all Kodshim that are fit to be offered
as sacrifices to the Beis ha'Mikdash, as it states in Vayikra 17:1-7.
Besides the Mitzvas Aseh, there is a Lav prohibiting their slaughter outside
of the Azarah (Shechutei Chutz). The punishment for transgressing this is
Kares (SEFER HA'CHINUCH Mitzvah #186).
b) [line 11] "[ISH ISH ASHER YISHCHAT...BA'MACHANEH O ASHER YISHCHAT
MI'CHUTZ LA'MACHANEH.] ...DAM YECHASHEV LA'ISH HA'HU DAF SHAFACH..." -
"[Which ever man there is of the house of Yisrael, who kills an ox, or lamb,
or goat, in the camp, or who kills it out of the camp. And brings it not to
the door of the Tent of Meeting, to offer an offering to HaSh-m before the
sanctuary of HaSh-m] it shall be considered as bloodshed for that man; he
has shed blood; [and that man shall be cut off from among his people.]"
(Vayikra 17:3-4)
4a) [line 19] ANUS - coerced
b) [line 20] SHOGEG - unintentionally
c) [line 20] MUT'EH - mistaken
5a) [line 24] "...[V']OSO HARAGTA B'CHEREV BENEI AMON." - "...[and you] have
killed him with the sword of the Ammonites." (Shmuel II 12:9)
b) [line 24] OSO HARAGTA (URIYAH HA'CHITI) - Uriyah ha'Chiti was guilty of
treason (Gemara below, and in Shabbos 56a, based upon Shmuel II 11:11). As a
result, David instructed his general Yo'av to see to it that Uriyah be sent
to the front lines of the battlefield to be killed by the Amonites. Rebbi
Yonasan (Shabbos ibid.) claims that anyone who states that David sinned is
mistaken. Even though he agrees, Rebbi states that the verses are so
condemnatory because he should have tried him in front of the Sanhedrin.
6) [line 28] CHAYAV B'DINEI SHAMAYIM - his punishment is not administered by
the courts, but through divinely administered justice
7a) [line 30] DINA RABA - a great punishment
b) [line 30] DINA ZUTA - a lesser punishment
8) [line 35] MORED B'MALCHUS - (lit. rebellion against the king) treason
9) [line 36] "...VA'DONI YOAV (V'CHOL AVDEI) [V'AVDEI] ADONI AL PENEI
HA'SADEH CHONIM..." - "[And Uriyah said to David, 'The ark, and Yisrael, and
Yehudah, remain in tents;] and my lord Yoav, and the servants of my lord,
are encamped in the open fields; [shall I then go into my house, to eat and
to drink, and to lie with my wife? As you live, and as your soul lives, I
will not do this thing.]" (Shmuel II 11:11) - Three explanations of Uriyah's
treason are found in the Rishonim: (a) he called Yoav "my lord" in the
presence of David ha'Melech (RASHI); (b) he did not comply with David's
command that he go home to his wife (TOSFOS, citing Rabeinu Meir, father of
Rabeinu Tam); (c) he mentioned Yoav before he mentioned David ("the servants
of my lord") (TOSFOS)
10) [line 41] SHELI'ACH NA'ASEH ED - a messenger appointed to bring money or
an object for Kidushin to a woman or to return money to a creditor can join
with another person to testify that the money or object reached its
destination. Similarly, a messenger appointed to bring a Get or Shtar can
become a witness as to its validity (Gitin 5b).
11) [line 44] ALUMEI KA ME'ALIMNA L'MILSEI - the testimony about a certain
occurrence is strengthened if the messenger sent to execute the action
becomes one of the witnesses to its doing (RASHI)
12) [line 48] SHALI'ACH V'ED ECHAD - the messenger and one other witness
[can testify together about a certain occurrence]
43b---------------------------------------43b
13) [line 4] ITESA L'VEI TREI LO CHAZYA - a woman cannot marry two men
14) [line 5] HANEI MIFLAG PALGEI - these Sheluchim could have divided the
money
15) [line 6] HA'MALVEH CHAVEIRO B'EDIM TZARICH L'FOR'O B'EDIM
(a) A person who borrows money, who, when requested to repay the loan,
claims that he has done so previously, is believed because of the fact that
he could have made a more successful claim, that the loan never took place.
This is known as "Migo" (Heb. Mitoch - because of [the fact that he could
have made a better claim, he is believed with this claim]).
(b) Even if the loan was made using a Shtar (loan document), there are those
who rule that the debtor is believed to claim that he has repaid the loan
since he could have claimed that the Shtar was forged. (He is believed up
until the point that the creditor validates the document, which nullifies
the Migo.) Others argue, ruling that a Migo is not believed against a Shtar
(Kesuvos 19a).
(c) There is an argument as to whether the above also applies to a loan that
was made in the presence of witnesses (Bava Basra 170a). One opinion rules
that if the loan was made in the presence of witnesses, the debtor must
repay it in the presence of witnesses ("Tzarich l'For'o b'Edim"). Therefore,
if the loan was made in the presence of witnesses and the creditor brings
these witnesses to Beis Din, the debtor is not able to claim that he repaid
the loan until he brings his own witnesses to that effect. The other opinion
rules that if a person borrows money in the presence of witnesses, he need
not have to return the money in the presence of witnesses ("Ein Tzarich
l'For'o b'Edim"), and therefore he is believed with a Migo if he claims that
he repaid the loan in private.
(d) This argument applies as well to messengers to whom money was given in
the presence of witnesses. If they cannot carry out their assignment and
they return the money to the sender, they may or may not need to return it
in the presence of witnesses.
16) [line 15] NA'ARAH HA'ME'URASAH - a betrothed Na'arah (with whom a man
has performed Erusin, but not Nesu'in)
A girl is a Ketanah (minor) until she has two pubic hairs after she enters
her twelfth year. During the following six months she is a Na'arah
(maidenhood). When six months elapse she becomes a Bogeres (adult).
17) [line 18] KOL SHE'EIN YECHOLAH LISHMOR ES GITAH - a girl who is not able
to guard her Get, i.e. a Shotah (RASHI)
18) [line 25] MAFKA'AS - removes her
19) [last line] MA'AMAR
(a) If a married man dies childless, his widow may not marry whomever she
pleases. She first must undergo Yibum (levirate marriage, that is, she must
marry her dead husband's brother), as the Torah states in Devarim 25:5-10.
The only way to perform Yibum mentioned in the Torah is through marital
relations with her. Giving her money (Kidushei Kesef) or a document
(Kidushei Shtar) does not achieve marital ties between them as it does with
a woman who is not a Yevamah (GEMARA Kidushin 4b). As RASHI writes (Yevamos
52a DH Nasan), it is impossible to effect Kidushin with one's brother's wife
because Kidushin do not "take hold" ("Einam Tofsin") with an Ervah (see
Insights to Yevamos 20:3).
(b) However, Chazal did enact a process called "Ma'amar" for a Yevamah, in
which the Yavam can "effect Kidushin" with his Yevamah in a manner
equivalent to Kidushei Kesef or Shtar in normal Kidushin. It is called
Ma'amar since it is an institution of the Chachamim ("Ma'amar Chachamim" --
HAGAHAH to SHULCHAN ARUCH Even ha'Ezer 170:2). They decreed that a Yavam
should make "Kidushei Ma'amar" before he has relations with her for the sake
of the Mitzvah of Yibum, for reasons of modesty (Yevamos 52a). Kidushei
Ma'amar are like an introduction to the act of Yibum. If the Yavam decides
not to go through with the Mitzvah of Yibum, he must give the Yevamah a Get
to remove the status of Ma'amar. (The Gemara discusses whether this
"Kidushin" is exactly similar to normal Kidushin, and may not be performed
against the will of the woman, or if it is slightly similar to the Mitzvah
of Yibum, and therefore may be preformed against her will -- Yevamos 19b).
(c) Since Ma'amar does not effect a full acquisition of the Yevamah as the
wife of the Yavam as does Yibum, the bond of Zikas Yibum between them still
exists. Therefore, if the Yavam wishes to divorce the Yevamah after Ma'amar,
a Get (bill of divorce) is not enough; he must perform Chalitzah in order to
render her free to marry whomever she pleases, besides divorcing her with a
Get. Thus, if the Yavam wants to "divorce" the Ba'alas ha'Ma'amar before
Yibum, he must both give her a Get and perform Chalitzah.
(d) According to the conclusion of the Gemara (Yevamos 29b, as understood by
most of the Rishonim), Beis Shamai disagrees with what has been presented
above, and rules that Ma'amar effects a full acquisition of the Yevamah
*mid'Oraisa*, not only mid'Rabanan. Reish Lakish presents his explanation of
the Beraisa in our Gemara according to the opinion of Beis Shamai (TOSFOS DH
Avad). According to some Amora'im, Beis Shamai even rules that if the Yavam
wants to divorce the Yevamah after Ma'mar, a Get is enough and Chalitzah is
not required (ibid.). [However, RASHI (Yevamos 29b DH Hashta) explains that
even according to Beis Shamai, Ma'amar is only mid'Rabanan, see Insights
ibid.] Other Tana'im are in doubt as to whether Ma'amar effects an marriage
to the Yevamah mid'Oraisa or only mid'Rabanan (Rebbi Shimon, Yevamos 18b).
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