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Kidushin, 3

1) PERFORMING KIDUSHIN THROUGH "CHUPAH"

QUESTION: The Mishnah (2a) states that a woman is married "in three ways." The Gemara says that the reason the Mishnah mentions the number three when listing the ways in which a woman is married is because it wants to specifically exclude a fourth way, that of Chupah.

RASHI explains that this means that Kidushin will not be created when a father gives over his daughter to a man, with intention to perform Kidushin, through Chupah. (The RASHASH amends the text of Rashi to read "Lo" instead of "Lah," as is the text in older printings of the Gemara.)

Why does Rashi present the case of Kidushin through Chupah as Kidushin made by the father of a Ketanah on behalf of his daughter? Why does Rashi not explain that the case of Kidushin through Chupah that the Mishnah is excluding is when the woman gives *herself* over with Chupah, the same way Rashi explains the other forms of Kidushin in the Mishnah? (PNEI YEHOSHUA)

ANSWERS:

(a) The PNEI YEHOSHUA answers that the sources in the Torah for the concept of Chupah all refer to the Chupah of a *Na'arah*, in which the father gives over his daughter, the Na'arah, to the husband ("Es Biti Nasati" (Devarim 22:16), see RASHI in Kesuvos 47a, DH Ha d'Zachi; and "v'Im Beis Ishah Nadarah" (Bamidbar 30:11), see RAN in Kesuvos, 1a of the pages of the Rif).

(b) The SEFER HA'MIKNAH points out that according to some opinions, Chupah is accomplished through Yichud (see RAMBAM, Hilchos Ishus 10:1, and see Insights to Kesuvos 57b). The witnesses of the Kidushin who testify to Kidushei Bi'ah do not have to actually see the act itself; rather, they must testify that they saw the man and woman isolate themselves together with intention and for the purpose of Bi'ah (see Insights to Kidushin 2:2). Hence, if a man performs Chupah by isolating himself with a woman, then even though the Chupah alone does not accomplish Kidushin, they should be married because of the principle of "Hen Hen Edei Yichud, Hen Hen Edei Bi'ah" (Gitin 81b) -- when the witnesses saw the Yichud occur, it is as if they saw the Bi'ah. Therefore, Rashi chooses to explain that when the Mishnah teaches that Chupah is not a valid form of Kidushin, it is referring to when a father gives over his daughter through Chupah. Since the father did not agree to let the man be Mekadesh his daughter with Bi'ah, the only Kidushin that can take effect is Kidushei Chupah. The daughter's own acceptance of Kidushei Bi'ah will not create a Kidushin. (According to what Rashi writes on 2a, that the man must specify that he is being Mekadesh with Bi'ah, when he says that he is being Mekadesh with Chupah it cannot be a Kidushei Bi'ah since he did not mention it specifically.)

(c) Perhaps Rashi was bothered by a general question: how can Chupah accomplish Kidushin? We know that the act of Kidushin must be done by the husband (as the verse says, "Ki Yikach Ish..." (Devarim 22:13)). The man must be the one to give the Kesef or the Shtar. If Chupah is a valid form of Kidushin, then the man must also be the one who executes the act of Chupah. According to many Rishonim, though, Chupah refers to the entering of the wife into the husband's domain (see RAN in Kesuvos there). When the woman enters the groom's house, she demonstrates that she has moved in to live with him in the manner of husband and wife, and that consummates the marriage. The act of Chupah must involve the woman voluntarily entering the husband's domain, the way a wife normally does, in order to make that her new home. If the husband carries her in, it will not be an act of Chupah, since it does not show that she is becoming part of his household. If they are both standing inside the house and the husband says, "Let this be Chupah," it will not suffice because the woman did not *enter* the way a wife enters a house. How, then, can Chupah ever be done in a manner of "Ki Yikach," where the husband does the act?

Rashi therefore explains that when the *father* gives the daughter over through Chupah, it is done in a way of "Ki Yikach." Rashi is following his opinion later (5b, DH Kesef b'Ishus) where he writes that when the father marries off his daughter, it is considered a Kidushin against the will ("Ba'al Korchah") of the one being married off (see TOSFOS 5a, DH she'Ken). Accordingly, if the father gives over his daughter through Chupah and the husband carries her into his domain even against her will, then it should accomplish a Chupah, because such an act *will* show that she is entering his domain the way a wife who is given over by her father enters the husband's domain. It is the manner for such a woman to enter the groom's domain nonconsentingly.

QUESTION: The Gemara continues and says that according to Rav Huna, who holds that Chupah *is* a valid form of Kidushin, the Mishnah is teaching that *Chalifin* cannot be used for Kidushin. The reason, the Gemara explains, is because a woman does not consent to become betrothed if she receives less than a Shaveh Perutah.

However, why will Chalifin not work to make Kidushin when it is performed with a Shaveh Perutah? In addition, why will it not work in the case of a woman who *is* willing to accept less than a Shaveh Perutah?

ANSWERS:

(a) RASHI (3b, DH Lo Mekanya) writes that since it is shameful for a woman to be betrothed with less than a Perutah, the entire concept of Chalifin cannot be used for Kidushin, even if it is done with something that is worth a Perutah. Only when the Perutah is given to her with the expressed intent that it is being given as a Kinyan *Kesef* will it work for Kidushin.

Rashi's intention is not clear. Why can *no* Chalifin work just because some forms of Chalifin (i.e. Chalifin with less than a Shaveh Perutah) do not work?

Rashi might intend to say what the Rashba says. The RASHBA writes that from the fact that Chalifin can be done with less than a Shaveh Perutah, it is evident that the Kinyan of Chalifin is not accomplished by the *value* of the object itself that is given over ("Guf"), but rather it is accomplished by the *Din*, or legal status, that Chalifin creates. The Rashba explains that the object that the buyer gives over for the Kinyan Chalifin does not remain in the hands of the seller; rather, he gives it back immediately to the buyer (see Nedarim 48b). Therefore, no matter how valuable the object is, the seller does not gain anything from it. Nevertheless, if there had been a requirement that the object have a minimum value of a Shaveh Perutah, then it would have been considered a notable, substantial Kinyan ("Keniyah Chashuvah"), despite the fact that the seller gives back the item. However, since the object can be less than a Shaveh Perutah, and if it is worth more than a Shaveh Perutah it is returned to the buyer, we see that the object itself is not what makes the Kinyan.

RASHI in Bava Metzia (45b) clarifies this when he says the object that is given for a Kinyan of Chalifin is not being given towards the purchase of the item being sold (i.e. it is not a barter). Rather, giving it over is a symbolic act that shows that the buyer and the seller accept the terms which they agreed upon (like the verse says, "l'Kayem Kol Davar" (Ruth 4:7)). This kind of agreement cannot create a Kidushin, because handing over even a very insignificant object shows this agreement between the buyer and seller. Therefore, if the man gives the woman a Perutah as Chalifin, his intention in doing so is to say, "Let this act of giving you an item demonstrate the acceptance of our agreement that you are my wife." Such a symbolic acknowledgement is a disgrace to the wife. The Kidushin must be done by the husband showing that he is parting with money for her (rather than showing that he is doing a symbolic act).

Why is it that the Kidushin is not valid if the woman agrees to accept less than a Shaveh Perutah for Chalifin and does not consider it a disgrace to her? The TOSFOS HA'ROSH answers that since most women consider it to be a disgrace, we say "Batlah Da'atah Etzel Kol Adam," and we ignore her own attitude.

(b) TOSFOS writes that the Gemara never thought that any Kinyan which works for the acquisition of land should also be able to work for Kidushin. The Torah only teaches that Kinyan *Kesef* works for Kidushin, as we learn from "Kichah, Kichah;" we have no source in the Torah to teach that the other Kinyanim of land can make a Kidushin. Why, then, does the Gemara need to find a reason why Kinyan Chalifin is not Koneh for Kidushin? It should be the opposite -- we should need a source to teach that Kinyan Chalifin *is* Koneh! No source should be needed to teach that Kinyan Chalifin is *not* Koneh!

Tosfos and other Rishonim explain that the Gemara thought that Kinyan Chalifin works through the same mechanism as Kinyan Kesef, since, in both cases, an object is being exchanged for what the person is being Koneh. The Gemara thought that Chalifin was a branch of Kinyan Kesef. Therefore, if the Torah teaches that Kinyan Kesef is able to effect Kidushin, then all of the subsidiary Kinyanim of Kesef should also work for Kidushin, since they are all in the same subcategory under Kinyan Kesef.

The Gemara answers that Chalifin is not a branch of Kinyan Kesef at all. It is an entirely different Kinyan. It works by showing a symbolic act of agreement (as we wrote above). The Gemara proves this from the fact that Chalifin can be done with less than a Shaveh Perutah. If it would be a branch of Kinyan Kesef, then it would be impossible for it to be done with less than a Shaveh Perutah. (In keeping with this explanation, Tosfos asserts that the correct Girsa on the beginning of 3b is "for less than a Shaveh Perutah, a woman cannot be acquired (Lo Mekanya)," meaning that a Kinyan that is not similar to Kesef cannot acquire a woman. His Girsa does not read, like ours does, "Lo Mekanya *Nafshah*," that she does not *want to let herself* be acquired.)

According to this explanation, it is clear why Kinyan Chalifin cannot be Koneh a woman even when more than a Shaveh Perutah is given to the woman, because only Kinyan Kesef can be Koneh the woman. Similarly, it does not make a difference if the woman agrees to accept less than a Shaveh Perutah, because Kinyan Chalifin cannot create Kidushin since it is not a Kinyan Kesef.

3b

QUESTION: The Gemara searches for a source that a father may accept and keep the money of Kidushin for his daughter when she is a Na'arah. The Gemara points out that we see that the Torah gives the father the right to keep the payments of Boshes and Pegam when his daughter is raped. The Gemara suggests that perhaps we can learn from there that he also gets the money of Kidushin.

The Gemara rejects this suggestion, saying that there is a logical reason why the father receives the money of Boshes and Pegam, and that is because "it pertains to him," giving him legal entitlement to those payments, whereas Kidushin does not pertain to him. RASHI explains (based on the Gemara in Kesuvos 40b), that the reason the Boshes and Pegam are given to the father is because it was in his power to torment his daughter with Boshes and Pegam by marrying her off to a Menuval (a loathsome, repulsive person) or Mukeh Shechin (leper) and receive the money of Kidushin for doing so. Therefore, he is rightfully entitled to the money paid for her Boshes and Pegam.

Rashi's words are perplexing. The Gemara does not yet know that a man may marry off his Na'arah daughter and receive the money of Kidushin -- the Gemara is still looking for a source for that! How can the Gemara say that he receives the payments of Boshes and Pegam because he could marry her off? We do not yet know that he may marry her off! (TOSFOS DH v'Chi Teima)

ANSWERS:

(a) TOSFOS answers that the Gemara means that the father gets the money of Boshes and Pegam since he may marry her off while she is a *Ketanah*. Since he could marry her off to a Menuval or Mukeh Shechin and she would *continue to suffer* Boshes and Pegam when she becomes a Na'arah, therefore he is entitled to receive the payments of Boshes and Pegam even when she is a Na'arah (even if he could not marry her off at that stage). We do have a source that the father may marry off his daughter when she is a Ketanah, as the Gemara taught earlier.

Tosfos rejects this approach, though, because if the father is entitled to receive the payments of Boshes and Pegam when his daughter is a Na'arah since he could have married her off while she was a Ketanah, then he should also receive those payments even after she becomes a Bogeres! He could have married her off when she was a Ketanah to a Menuval or Mukeh Shechin and she would still be suffering from it as a Bogeres!

The CHASAM SOFER (Kesuvos 40b) has another objection to this approach. Even if her father marries her off to a Menuval or Mukeh Shechin, after the Nesu'in we can force him to divorce her, like the Mishnah says in Kesuvos (Kesuvos 77a).

TOSFOS (see Tosfos in Kesuvos 40b, DH d'Iy Ba'i) gives a variation of this answer. Normally, a Ketanah is capable of receiving and keeping payments for physical damages done to her, like the Gemara says in Bava Kama (87b). Yet payments for Boshes and Pegam are still given to her father and not to her. Hence, the Gemara wants to learn from there that the Kidushin of a Na'arah should also be given to the father even though the Na'arah has a "Yad" and is able to accept her own Kidushin. The Gemara rejects this suggestion by saying that the payments of Boshes and Pegam of a Ketanah rightfully belong to her father (even though she is capable of receiving payment for physical damages), since while she was a Ketanah he could have married her off and received money for causing her to suffer Boshes and Pegam. We already have a source that a father may marry off his daughter when she is a Ketanah, and therefore the Gemara's logic is sound. The Gemara is not saying that he could marry her off while she is a Na'arah.

(b) TOSFOS and TOSFOS YESHANIM (Kesuvos 40b) suggest that when the Gemara says that "it pertains to him," the Gemara does not mean that her father could marry her off to a Menuval or Mukeh Shechin. Rather, it means that her father himself suffers from the embarrassment and affliction experienced by his daughter. Therefore, there is more reason to give the payments of Boshes and Pegam to him than to give the money of Kidushin to him.

This answer is lacking, though, because the Gemara in Kesuvos (40b) does not give this reason as the reason why the father is entitled to the payments of Boshes and Pegam of his daughter. The Gemara says that he gets them because he could marry her off to a Menuval or Mukeh Shechin, like Rashi says here! Why, then, does the Gemara here not respond that Boshes and Pegam cannot be a source for letting the father keep the money of Kidushin, because -- on the contrary -- the fact that he gets the money of Kidushin is the source for why he gets the Boshes and Pegam?

Tosfos answers that the Gemara means to say that even if we find another source for why we give the Boshes and Pegam to the father, we would still not be able to learn from Boshes and Pegam that the father gets the money of Kidushin.

(c) TOSFOS here suggests that our Gemara holds that a Na'arah can become Mekudeshes either by herself *or* by her father. (This is in fact the way that Reish Lakish understands the opinion of the Chachamim in Kidushin 43b). If so, the Gemara knows that the father could be Mekadesh his daughter when she is a Na'arah and keep the money of Kidushin. Rather, the Gemara is asking for a source that even when the Na'arah marries herself off, the father still gets the money of Kidushin. The Gemara says that the source cannot be from Boshes and Pegam, because those payments are given to the father because he could marry her off to a Menuval or Mukeh Shechin. Therefore, we cannot prove from Boshes and Pegam that if the daughter marries herself off, the father still gets the money for Kidushin. (The Gemara in Kidushin 44a, though, concludes like Rebbi Yochanan, who says that only the father may marry off his Na'arah daughter, and not the Na'arah herself.)

(This approach of Tosfos answers another question posed by Rashi in our Sugya and in Kesuvos (46b, DH Ketanah). Rashi asks why the Gemara does not learn from "Es Biti Nasati" (Devarim 22:16) that the father could marry off his daughter when she is a Na'arah. Tosfos will answer that we do learn from there that he may marry her off, but the Gemara is asking why *he* gets the money of Kidushin when *she* marries herself off.)

(d) None of the above approaches conforms to the way Rashi (DH d'Avuha, and in Kesuvos 46b, DH d'Shayach Bah) explains this Gemara. Perhaps Rashi has a different approach altogether.

Rashi might be learning that the Gemara knows all along that a father may marry off his daughter who is a Na'arah, and that the Na'arah herself may not marry herself off. That Halachah could be learned from the Halachah of Hafaras Nedarim, since they are both laws of Isur, as Tosfos himself asks (Kesuvos 46b, DH Mamona). Thus, when the Gemara asks that we should learn that the father may marry her off and keep the money of Kidushin from the fact that he gets Boshes and Pegam, it already knew that the father may marry off his Na'arah daughter, but did not yet know that the money of the Kidushin goes to the father.

This answers another question. If we do not yet know that the father has the right to marry her off, then how can the Gemara learn that right from Boshes and Pegam? Boshes and Pegam does not teach that he may marry her off, but only to whom the profits go. It must be that the Gemara knew all along that the father may marry her off. The only question is when he does marry her off, who gets the money of the Kidushin: the father or the daughter?

Why does the Gemara not prove that the father gets the money of Kidushin with the Kal v'Chomer that it mentioned earlier, that if he is the one who marries her off, then certainly he should receive the money? The answer is that the Gemara there means that if the father *receives the money* of Kidushin in order to marry her off, then certainly he *keeps that money* and does not have to give it to his daughter after he effects the Kidushin by receiving it. The verse of "Es Biti Nasati" implies that he may actually accept the money of Kidushin in order to make the Kinyan of Kidushin (and not just that he may agree to the Kidushin) when his daughter is a Ketanah, and if he may accept the money, then he certainly gets to keep it. In the case of a Na'arah, though, we know that he may marry her off to someone, but we do not know who accepts the money -- may he accept the money (and keep it), or is she the one who accepts the money (and keeps it)?

The Gemara tries to prove from Boshes and Pegam that the father should be the one to accept and keep the money, since it is a profit made by his daughter. The Gemara rejects this proof because the father may marry her off to a Menuval or Mukeh Shechin and take money for causing her to suffer Boshes and Pegam.

This sheds light on another seemingly inexplicable point in the words of Rashi in Kesuvos (46b). Rashi explains that when the Gemara rejects the proof from Boshes and Pegam, it means that the father could take money for marrying her off with "Kidushei Bi'ah" to a Menuval or Mukeh Shechin. Why does Rashi mention Kidushei Bi'ah? The father could marry her off with any type of Kidushin, including Kesef and Shtar (and afterwards the Menuval will be Bo'el her)!

Rashi might mean that the Gemara knows already that the father has the right to agree with or refuse the Kidushin; the question is only who *accepts* the money or Shtar of the Kidushin. Since it is possible that the daughter is the one who accepts the Kesef or Shtar, the Gemara cannot be saying that the father has the ability to give his daughter to a Menuval in exchange for being Mekadesh her with Kidushei Kesef or Shtar, because even though the father agrees to the Kidushin, if his daughter refuses to accept (and make a Kinyan on) the Kesef or Shtar the Kidushin cannot take effect. Therefore, it is not within the father's power to effect such a Kidushin against his daughter's will. However, he could tell a Menuval or Mukeh Shechin to go and be Bo'el his daughter and be Mekadesh her with Bi'ah. Even if the Mukeh Shechin does that against the will of the Na'arah, the Kidushin will be valid because it is done with the consent of the father. Consequently, the father is entitled to take the money for the Boshes and Pegam, even if he is not entitled to take the money of Kidushei Kesef. In Kesuvos (40b), in contrast, Rashi says that Boshes and Pegam go to the father since he could be Mekadesh her with Kidushei *Kesef, Shtar, or Bi'ah* to a Menuval or Mukeh Shechin, since Rashi there is following the conclusion of our Gemara, that a father *can* accept Kesef or a Shtar for his daughter's Kidushin. (M. Kornfeld)