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Kidushin, 5

1) DERIVING "KIDUSHEI KESEF" FROM THE OTHER FORMS OF KIDUSHIN

QUESTIONS: The Gemara explains that we cannot derive that Kesef works to be Koneh a woman for Kidushin from a "Tzad ha'Shaveh" between Shtar and Bi'ah, because Shtar and Bi'ah both effect a Kinyan *against a woman's will* ("Ba'al Korchah") in other situations (Shtar in the case of a Get, and Bi'ah in the case of Yibum). Kesef, in contrast, never effects a Kinyan against the will of a woman. The Gemara asks that we find that Kesef *is* Koneh against her will in the case of an Amah Ivriyah (Jewish maidservant), where a man acquires the Amah Ivriyah with Kesef, without the consent of the girl. The Gemara answers that, nevertheless, Kesef is still not similar to Shtar and Bi'ah, because those forms of Kinyan are Koneh a woman Ba'al Korchah in situations of *Ishus* (relationship), while Kesef is not Koneh a woman Ba'al Korchah in any situation of Ishus.

Later (5b), the Gemara explains that Rav Huna maintains that Chupah is Koneh a woman for Kidushin from a "Tzad ha'Shaveh" between Kesef, Shtar, and Bi'ah: those three forms of Kinyan are Koneh in other situations (Kesef in the case of Amah Ivriyah, Shtar in the case of Get, and Bi'ah in the case of Yibum) and they are Koneh for Kidushin as well, and thus Chupah, too, which is Koneh in other situations (i.e. for Nesu'in) is Koneh also for Kidushin.

The Chachamim argue with Rav Huna, because Kesef, Shtar, and Bi'ah have a "Tzad ha'Shaveh" (which Chupah does not have) in that they all effect a Kinyan *Ba'al Korchah*. Chupah, though, is never Koneh a woman Ba'al Korchah. The Gemara explains that Rav Huna is not bothered by this question; he does not consider this to be a "Tzad ha'Shaveh," because we do not find that Kesef is Koneh against a woman's will with regard to Ishus.

RASHI explains that what Rav Huna means is that aside from Kidushei Kesef itself -- which can be done Ba'al Korchah by the father -- we do not find that Kesef works Ba'al Korchah to be Koneh a woman to a man. In that sense, *Chupah* is similar to Kesef because we do not find that Chupah can be Koneh the woman Ba'al Korchah (except for the Chupah which makes Kidushin, which is learned from the Gezeirah Shavah of Kesef). (If this Chupah is Koneh for Kidushin as Rav Huna asserts, then certainly it can be Koneh the woman Ba'al Korchah when her father marries her off, just like Kesef, from which this use of Chupah is derived.) (See TOSFOS HA'ROSH, 5b, in the name of the RIVA.)

There are a number of questions on this Gemara. First, why does the Gemara say that Chupah is not Koneh, Ba'al Korchah, to make Nesu'in? Since the father can give over his daughter for Nesu'in against her will (see Kesuvos 47a), we see that Chupah *can* be done Ba'al Korchah! What is the difference between Chupah and the Kesef which the father receives when he sells his daughter as an Amah Ivriyah, which the Gemara considers to be Ba'al Korchah? (RASHBA; see TOSFOS DH Af Ani.)

Second, why does the Gemara (5a and 5b) not consider the "Yi'ud" (designation for marriage) of an Amah Ivriyah to be a form of Kesef of Ishus which works against the woman's will?

Third, why does the Gemara (5a) write that Kesef is different in that it is not Koneh a woman Ba'al Korchah to make *Ishus*? Without the verse telling us so, we do not find that Kesef can make Ishus even when the woman *consents*, and that is why Kidushei Kesef cannot be learned from a "Tzad ha'Shaveh" from Shtar and Bi'ah! Shtar works for Ishus in the case of a Shtar Gerushin (a Get), and Bi'ah works for Ishus in the case of Yibum, whereas Kesef never accomplishes Ishus altogether, whether willingly or against her will, except for by Kidushin! Why, then, does the Gemara say that we do not find that Kesef is Koneh *Ba'al Korchah*, when we do not find that it is Koneh for Ishus *at all*?

ANSWERS:

(a) RABEINU TAM (in Tosfos 5a, DH she'Ken Yeshnan) explains that when the father marries off (with Kidushin and Nesu'in) his daughter against her will, it is not referred to as a Kinyan that is done "Ba'al Korchah," since the Kinyan is done with the permission and consent of the person responsible for the Kinyan: the father. The only examples of Ba'al Korchah are Yibum and Gerushin, which can take effect against the will of the person responsible (i.e. the woman).

Why, then, does the Gemara say that Kesef can be used Ba'al Korchah in the case of Amah Ivriyah? The Amah Ivriyah is not sold against the will of the father who is responsible for the sale! RABEINU TAM answers that the Kesef of Amah Ivriyah to which the Gemara refers is the Kesef that allows Yi'ud to be done by the master to create Kidushin, even against the will of the *father*. The Gemara teaches that at any point the master may say that he wants the money that he originally gave to the father as the payment for the Amah Ivriyah to create a Kidushin, and he does not have to ask for the consent of the father.

The reason why the Gemara does not refer to the Kesef of Yi'ud as Kesef of *Ishus* which works Ba'al Korchah is because the money was originally given to the father for the sake of the purchase of the Amah Ivriyah, and not to make Kidushin. It only creates Ishus, Ba'al Korchah, as a secondary consequence. Hence, it is not comparable to the Shtar of Gerushin or to the Bi'ah of Yibum which primarily affect Ishus against the will of the woman. Since, however, Kesef does create a Kinyan of Ishus, the Gemara cannot say that we never find Kesef creating a Kinyan of Ishus.

(b) TOSFOS cites others who explain that when the father sells his daughter against the daughter's will, it *is* an example of Kesef being Koneh against the will of the woman. Nevertheless, when the father accepts Kidushin for Mekadesh his daughter (or gives her over to Chupah or Yi'ud) against her will, it is not considered an example of Kesef being Koneh Ba'al Korchah. The reason is because it is beneficial for the girl to get married, and therefore we assume that had her mind been fully mature, she would have agreed to the Kidushin. On the other hand, it is to her detriment to be sold as an Amah and have to work for somebody, and therefore we assume that she would not have agreed to it of her own accord. The RASHBA adds that this holds true even if the father marries off his daughter to a repulsive and disgraceful person, because we assume that a woman prefers being married to being single (see 7a).

Since Kesef creates a Kinyan of Ishus by making Yi'ud, the Gemara cannot say that Kesef does not create any Kinyanim of Ishus.

(c) RASHI (5b, DH Kesef) does not seem to accept either of these two answers. Perhaps Rashi understands that both Chupah and Yi'ud are not examples of a Kinyan Ba'al Korchah, because the Kinyan Ba'al Korchah went into effect before the Chupah or Yi'ud started. That is, the reason Chupah can be done against the daughter's will is because the father has the right to give over his daughter to Kidushin against her will, and the right to give her over to Kidushin includes empowering the husband to complete the Kidushin by performing Chupah. The Kidushin therefore includes the right to have a Chupah done as well. When the father gives over the daughter to Chupah against her will, he is simply completing the Kidushin that was done against her will, and he is not initiating a new action against her will.

The same applies to Yi'ud; the father has the ability to sell his daughter to the master who will treat her as an Amah Ivriyah. The ownership of an Amah Ivriyah gives the master the ability to either have her work for him, or to take her as his own wife through Yi'ud. Therefore, the sale of the Amah Ivriyah includes the ability to take her as a wife through Yi'ud against her will. When the master exercises his right of Yi'ud, he is not initiating a new act against the will of the daughter, but rather he is just utilizing the right that he *already* acquired, against her will, to make her his wife. Therefore, it does not prove that the Kinyan of Kesef is a stronger Kinyan, like the sale of an Amah proves.

This answers the third question as well. Since Kesef creates a Kinyan of Ishus by making Yi'ud, the Gemara cannot say that Kesef does not create any Kinyanim of Ishus.

5b

QUESTION: Rav Huna learns that Chupah is a valid form of Kidushin from a Tzad ha'Shaveh from Kesef, Shtar, and Bi'ah. Those three forms of Kinyan are Koneh in other situations (Kesef in the case of Amah Ivriyah, Shtar in the case of Get, and Bi'ah in the case of Yibum) and they are Koneh for Kidushin as well, and thus Chupah, too, which is Koneh in other situations (i.e. for Nesu'in) is Koneh also for Kidushin. Even though Kesef, Shtar, and Bi'ah sometimes work Ba'al Korchah, against the will of the woman, while Chupah cannot take effect Ba'al Korchah, Rav Huna does not consider this to be a question, because we do not find that *Kesef* works Ba'al Korchah with regard to Ishus (it only works Ba'al Korchah to acquire an Amah Ivriyah). (The TOSFOS HA'ROSH explains that Rav Huna does not consider the fact that Kesef works Ba'al Korchah in the case of an Amah Ivriyah to be a legitimate question to the Tzad ha'Shaveh, since it is a "Pircha Kol d'Hu," a weak question, and he holds that only a strong question can be used to refute a Tzad ha'Shaveh.)

According to Rav Huna, though, why do we not learn from the same Tzad ha'Shaveh that a Kinyan *Chazakah* or Kinyan *Chalifin* is also able to make Kidushin and be Koneh a woman? These Kinyanim, too, are Kinyanim which work elsewhere, and therefore the Tzad ha'Shaveh should teach us that they work to make Kidushin!

According to the RASHBA (3a; see Insights there), every Kinyan Chalifin is considered to be a Kinyan done with less than a Shaveh Perutah, and since it is a disgrace to a woman to become Mekudeshes with less than a Shaveh Perutah, it cannot be derived from the Tzad ha'Shaveh. However, according to TOSFOS there (3a, see Insights there), the only reason why Chalifin (with a Shaveh Perutah) is not Koneh a woman is because we have no source in the Torah to teach that it is Koneh. Why, then, can we not derive Kinyan Chalifin from the Tzad ha'Shaveh, according to Rav Huna? (REBBI AKIVA EIGER, 3a)

ANSWERS:

(a) TOSFOS RID changes the Girsa in the Gemara to read that according to Rav Huna, we *do* make a Tzad ha'Shaveh between Kesef, Shtar, and Bi'ah from the fact that they are Koneh Ba'al Korchah, and nevertheless Chupah is included in that Tzad ha'Shaveh, since it is also Koneh a woman Ba'al Korchah -- i.e. when the father marries off his daughter. (The Chachamim who argue with Rav Huna might learn like Tosfos, who says that when the father marries off his daughter against his daughter's will, it is not called Ba'al Korchah because it is not done against the will of the person making the Kinyan (the father).)

According to this Girsa, we cannot learn that Kinyan Chalifin and Kinyan Chazakah work for Kidushin from the Tzad ha'Shaveh, because they never work against someone's will.

However, all the other Rishonim read the Gemara as it appears in our texts; Rav Huna does not make the Tzad ha'Shaveh from the fact that Kesef, Shtar, and Bi'ah are done Ba'al Korchah.

(b) It seems that the Gemara takes it for granted that we cannot learn from a Tzad ha'Shaveh that a Kinyan which can acquire normal possessions can also acquire a wife. The Kinyan that is made to acquire a wife is not of the same nature as a Kinyan done to acquire an item. The Kinyan of Kidushin does not create a status of ownership, but rather a status of partnership. (See Kovetz He'oros #61.)

Therefore, when Rav Huna says that Chupah is Koneh in other cases (other than for Kidushin), and therefore we can infer from the Tzad ha'Shaveh that it can be Koneh to make Kidushin, he means that it is Koneh for *Ishus* elsewhere, and not just for normal property. Since we find that it can create a Kinyan of Ishus with regard to Nesu'in, we can learn through the Tzad ha'Shaveh that it can create a Kinyan of Ishus with regard to Erusin (Kidushin) as well. In contrast, Chalifin and Chazakah are never able to make a Kinyan of Ishus, and therefore they cannot be derived through the Tzad ha'Shaveh to work for Kidushin.

(When the Gemara says that we should not learn Chupah from Kesef because it can be used to redeem Hekdesh and to be Koneh an Amah Ivriyah against her will, it means that these Halachos prove that a Kinyan Kesef is a stronger Kinyan, and therefore even if this form of Kinyan of Ishus makes Kidushin, other forms of Kinyan of Ishus which are weaker might not be able to create a Kidushin.)

The Beraisa suggests three expressions that can create a Kidushin: "Harei At Mekudeshes Li," Harei At Me'ureses Li," and "Harei At l'Intu."

RAV GUSTMAN zt'l (in Kuntrusei Shi'urim 1:2) suggests that these three expressions correspond to the three types of Kinyan that Kidushin creates (see Background to Kidushin 2:1). First, Kidushin creates a Kinyan of *Ishus*, which permits a man to live with his wife and which creates a familial relationship ("She'er") between them. Second, it creates a Kinyan *Isur*, prohibiting her to everyone else in the world. Third, it creates a *monetary* Kinyan which grants the husband certain rights over the wife and her possessions, and which grants the wife the right to eat Terumah if her husband is a Kohen.

Each of these three terms that the Beraisa uses is emphasizing one of these three Kinyanim. "Mekudeshes" emphasizes the Kinyan Isur (as the Gemara says on 2b, comparing the word "Mekudeshes" to the word "Hekdesh"). "Me'ureses" represents the monetary Kinyan (which come about through the Erusin). "Harei At l'Intu" ("Behold, you are my wife") represents the husband-wife relationship. If a person uses any one of these terms it creates a full-fledged Kidushin in which all three Kinyanim take effect.

Rav Gustman adds that this might be why Rashi emphasizes that a man must say *either* "Harei At Mekudeshes" *or* "Harei At Me'ureses," because we might have thought that one must say all three phrases in order to make a Kidushin, since there are three parts to Kidushin. Therefore, Rashi points out that any one of them can make a complete Kidushin.