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Kidushin, 7

1) MARRYING A WOMAN ON BEHALF OF SOMEONE ELSE

QUESTION: When a man tells a woman that he is giving money to her in order for her to become Mekudeshes to another man, the Kidushin is valid through the mechanism that we learn from the freedom of an Eved Kena'ani.

We know that Kidushin cannot be made without the consent of either party. How, then, can a man be Mekadesh a woman on behalf of another man without having been appointed as a Shali'ach by the other man to do so?

RASHI (DH Heilach) explains that, indeed, the Mekadesh appointed the other man as his Shali'ach to be Mekadesh the woman by giving her a Perutah. However, if he is a Shali'ach, then why is the Halachah of Eved Kena'ani necessary to teach us that the Kidushin takes effect?

ANSWERS:

(a) RASHI explains that, normally, a Shali'ach is Mekadesh with the money of the sender. The Halachah of Eved Kena'ani teaches that he may use his own money to make a Kidushin for another person. This is the simplest way of explaining the Gemara.

(b) The RITVA explains that the person who gave the Perutah was not a Shali'ach. Rather, after he gave the Perutah for Kidushin, the Mekadesh said, "I want you to become Mekudeshes to me with the Perutah that the other person gave to you." This is why we must invoke the Halachah of Eved Kena'ani.

Why does the Ritva not explain like Rashi, that even if the one who gave the Perutah was a Shali'ach, we still need the Halachah of Eved Kena'ani to teach that the Shali'ach can give his own money?

Perhaps the Ritva understands that if the giver of the Perutah was a Shali'ach, then even if he gives his own money, since he is giving it for the benefit of the one who appointed him it is considered as if he loaned money to the one who appointed him by giving the money to the woman on his behalf. Therefore, the giving of the Kidushin will cause the Perutah to become a loan to the Mekadesh at the same time as the Perutah becomes the property of the woman ("Ba'in k'Achas"). (Even if the one who gives the Perutah does not expect the Mekadesh to reimburse him, it is as if he gave the Mekadesh a loan and then was Mochel the loan.) That is why the Ritva explains that the one who gives the money is not a Shali'ach, and therefore he cannot create a loan to the Mekadesh since the Mekadesh did not request of him to loan him money.

Rashi, on the other hand, learns that when the person gives a Perutah for the Mekadesh, the Perutah itself does not become the property of the Mekadesh. Rather, the Mekadesh owes him money because he incurred an expense at the request of the Mekadesh.

QUESTION: Rav Papa rules that if the woman gives the man a Perutah and says, "Take this, and I will become Mekudeshes to you," she becomes Mekudeshes. Rav Ashi asks that we know that "Nechasim she'Yesh la'Hem Acharayos" (i.e. land/Karka) cannot be transferred "Agav" -- as a secondary acquisition -- by way of "Nechasim she'Ein la'Hem Acharayos" (i.e. mobile property/Metaltelin); rather, only Metaltelin can be acquired "Agav" Karka.

In what way is the woman considered "Nechasim she'Yesh la'Hem Acharayos?" RASHI explains that the verse compares a person to Karka, "ve'His'nachaltem Osam" (Vayikra 25:46) and thus a woman is considered "Nechasim she'Yesh la'Hem Acharayos."

This verse, though, is discussing Avadim Kena'anim. The Gemara later (22b) learns from this verse that one may acquire an Eved Kena'ani in the same manner that one acquires land -- with Kesef, Shtar, or Chazakah. We do not find that the verse refers to a free person, or even to an Eved Ivri. The Gemara requires other sources to teach that one may acquire an Eved Ivri, or a wife, with Kesef and Shtar. How, then, can Rashi cite this verse as a source that a woman is considered "Nechasim she'Yesh Lahem Acharayos?" (TOSFOS DH Im Ken)

In addition, if a woman is compared to Karka with regard to Kinyan Agav, then it should also be possible to acquire Metaltelin together with the woman by making Kidushin. Would this be a valid Kinyan?

The RASHBA asks that even if Agav could be used to make a secondary Kinyan of Karka together with Metaltelin, why would we think that a woman can be acquired through Agav? Just like Chazakah cannot be used to acquire a woman because there is no source for it in the Torah (see Insights to 3a), so, too, Kinyan Agav should not be a valid Kinyan!

ANSWER: The RAMBAN and RASHBA explain that the Gemara does not mean to literally compare a woman to Karka, or to suggest that Kinyan Agav would actually work to be Koneh a wife. Rather, the Gemara means that even if we could compare a woman to Karka and even if a woman could be acquired through Agav, it would still not suffice to explain why giving a Perutah to a man can create Kidushin. (TOSFOS, DH Im Ken, gives a similar answer to the question how Agav should be able to create a Kidushin.)

7b