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Kidushin, 8

1) APPRAISING THE ITEM USED FOR KIDUSHIN

QUESTION: The Gemara cites two versions of the argument between Rabah and Rav Yosef regarding being Mekadesh with Shira'i, an object whose value was not appraised before it was given to the woman for Kidushin. According to the first version, they argue about a case in which the man specifies the value of the object, and the object is actually worth the specified value. Rabah says that the Kidushin is valid even though the object was not appraised before the Kidushin, since the object turns out to be worth what the man said it was worth. Rav Yosef says that the Kidushin is not valid, because the woman was unaware of the actual value of the object at the time of the Kidushin. Since a woman is not an expert at estimating the value of objects, she might have thought that the object was worth less than he said it was worth and she did not have in mind to become Mekudeshes to him.

According to the second version of the Machlokes, Rabah and Rav Yosef argue about a case in which the man does not specify the value of the object. Rabah says that the Kidushin is valid because Shaveh Kesef is like Kesef. Rav Yosef says that Shaveh Kesef can be used for Kidushin only when its value is predetermined, just like the value of Kesef is always known.

Rav Yosef cites proof to his opinion that the Kidushin is not valid from a Beraisa that discusses Pidyon ha'Ben. The Beraisa teaches that when a person gives a calf to a Kohen and says, "This calf is for the Pidyon of my son," the Pidyon is not valid. However, when he says, "This calf -- which is worth five Sela'im -- is for the Pidyon of my son," the Pidyon is valid. It is obvious that the calf is worth five Sela'im, for if not, the Pidyon would not be valid even when he specifies its worth. Why, then, is the Pidyon not valid when he does not specify the value of the calf? It must be, asserts Rav Yosef, that in the Reisha of the Beraisa the Pidyon is not valid because the calf was not appraised by professionals before it was given. When the Seifa says that the Pidyon is valid when the father specifies its value, it means that the father had the calf appraised to prove that it was worth five Sela'im before giving it to the Kohen, in which case it is a valid Pidyon (RASHBA).

According to which version of Rav Yosef's opinion does this Beraisa provide support?

TOSFOS (DH Mena Amina), the TOSFOS HA'ROSH, and the TOSFOS TUCH explain that the proof is according to the first version. It cannot prove that Rav Yosef is correct in the second version, because whenever a father gives an item to a Kohen for Pidyon ha'Ben, it is inherently considered as though the father specified a value for the calf, since Pidyon ha'Ben must be done with five Sela'im. Hence, Rav Yosef cannot prove from here that in the case of Kidushin, an item of value needs to be appraised even when the man who gives it does not specify a value.

According to the first version, though, what is Rav Yosef's proof? How can we prove anything from the case of Pidyon ha'Ben? The reason Rav Yosef says that the Kidushin is not valid is because a woman does not appraise properly the value of the item of Kidushin and she thinks that it is worth less than it is actually worth, and therefore she does not intend to accept it l'Shem Kidushin. In contrast, in a case of Pidyon ha'Ben, even if we assume that a Kohen does not appraise objects properly like a woman, what difference does it make if the Kohen thinks the item is worth less? As long as the item was given to the Kohen and it is indeed worth five Sela'im, the child should be redeemed, regardless of the Da'as of the Kohen!

ANSWERS:

(a) Perhaps Rav Yosef holds that "Nesinah Ba'al Korchah" -- giving something to someone against his will -- is not considered a valid Nesinah (see Gitin 75a). Therefore, the Kohen cannot be given the money of the Pidyon against his will. If he thinks that the item is worth less than the stated amount, then he does not really want intend to receive it as the Pidyon for the child. Therefore, the Pidyon is not valid and must be given again.

The TOSFOS (Gitin 75a DH Michlal) and the RASHBA, however, write that when the Gemara discusses whether or not "Nesinah Ba'al Korchah" is considered a Nesinah, it is referring only to a Nesinah which causes the recipient to lose something in exchange, such as when the buyer of a house in a walled city is being paid by the original owner for the redemption of the house, in which case the buyer stands to lose the house if the giving of the money to him is a valid Nesinah. However, when the recipient does not lose anything, there is no doubt that a "Nesinah Ba'al Korchah" is considered a Nesinah. They add that for this reason, a person may pay back a loan to the lender against the will of the lender.

Accordingly, Pidyon ha'Ben should have the same Halachah -- since the Kohen does not lose anything by receiving the money, it should be possible to pay him even against his will.

Perhaps we can distinguish between paying back a loan and paying Pidyon ha'Ben to a Kohen, based on another point that the Rishonim write with regard to "Nesinah Ba'al Korchah" (see Insights to Gitin 75a). The Rashba writes that although "Nesinah Ba'al Korchah" may qualify as a Nesinah, the recipient is not Koneh the item that is given to him against his will. For example, with regard to a house in a walled city, the Torah requires only that the seller *give* money to the buyer of the house; even if the buyer does not acquire the money, the act of giving it to him is sufficient for the house to return to the original owner.

Why may a person pay back a debt against the will of the lender? Apparently, the borrower's obligation is to give the money back to the lender, whether or not the lender chooses to be Koneh it. In order to fulfill his obligation to pay back the debt, the borrower is not required to ensure that the lender is Koneh the money; it suffices for him to make the money available to the lender.

Pidyon ha'Ben, therefore, might differ from paying back a loan. The requirement of the Torah is not just to make the money available to a Kohen, but perhaps it also includes having the Kohen actually acquire the money of the Pidyon. If one Kohen does not want to accept it, then the money must be given to another Kohen. Therefore, if the Kohen does not want to accept it because he does not think that it is worth five Sela'im, he will not be Koneh it and the Pidyon will not be valid.

Tosfos (ibid.) seems to learn that if "Nesinah Ba'al Korchah" is considered "Nesinah," the recipient is Koneh the object against his will as well, not like the Rashba (see Insights there). However, Tosfos distinguishes between different types of Nesinah in another fashion. He makes a distinction between situations in which an object is *supposed* to be received by a particular person -- and therefore it is possible that "Nesinah Ba'al Korchah" is considered a "Nesinah" -- and situations in which there is no factor urging a person to receive the object, in which case it is clear that "Nesinah Ba'al Korchah" does not work.

This logic, too, might lead to a distinction between Pidyon ha'Ben and paying back a loan. There is no factor driving this Kohen to receive the Pidyon for this particular child.

(b) The PRI CHADASH (Mayim Chaim #5) discusses the question of whether Pidyon ha'Ben can be given against the will of the Kohen. Rejecting the possible ways to distinguish between Pidyon and other cases of "Nesinah Ba'al Korchah," he concludes that when Pidyon ha'Ben is given against the will of the Kohen the Pidyon *is* valid. How, then, are we to understand Rav Yosef's proof from the Beraisa? (See HE'OROS B'MASECHES KIDUSHIN.)

RAV SHIMON SHKOP (CHIDUSHEI REBBI SHIMON #16) suggests that if the Kohen thinks that the calf is worth less than five Sela'im, then he will sell it to others for the price that he thinks it is worth. Therefore, to him, the calf is actually not worth five Sela'im. Just as the Gemara says that a Kohen can consider something that is worth less than five Sela'im to be worth more than five Sela'im if to him it is worth that much, so, too, if something is worth five Sela'im but to him it is worth less, then item acquires the value that he gives it with regard to Pidyon.

8b

QUESTIONS: The Beraisa teaches that when a man asks a woman to become Mekudeshes to him with a Manah and she tells him to place it on a rock, she is not Mekudeshes. If the rock belongs to her, then she is Mekudeshes. Rav Bivi asks what the Halachah would be in a case where the rock belongs to both the man and the woman.

RASHI explains that the reason she is Mekudeshes when the rock belongs to her is because the rock is her Chatzer and thus it can be Koneh the money of Kidushin for her, just as if she had received it in her hand.

There are a number of questions on Rashi's explanation that the Kidushin in the case of placing money on the woman's rock takes effect through Kinyan Chatzer.

(a) TOSFOS (DH Im Hayah) points out that the Gemara in Bava Basra (84b) teaches that when two people are partners in the ownership of a piece of land, one partner cannot be Makneh an object to the other partner by placing the object in the land that they own jointly. Why, then, should Rav Bivi consider the possibility that if the rock belongs to both the man and the woman that the woman will become Mekudeshes? If, as Rashi explains, the only reason why the woman acquires the money when it is placed on her rock is because it is like her Chatzer, then why should there be any question when the rock belongs to both of them? She certainly should *not* be Koneh the money, since a Chatzer owned by two people cannot acquire an object that one partner is giving to the other!

(b) The Beraisa continues and says that if the man asks the woman to become Mekudeshes to him with a loaf of bread, and she tells him to give it to a dog, then if the dog belongs to her she is Mekudeshes. Rav Mari asks what the Halachah would be if the dog was not hers but was just chasing her, and giving the loaf of bread to the dog would placate it.

When the man gives the loaf of bread to the woman's dog or to the dog that is chasing her, the dog is clearly not Koneh the loaf for the woman through Kinyan Chatzer (because, in the case of the dog that belongs to her, the dog is not Mishtameres l'Da'atah, and in the case of the dog that is chasing her, the dog does not belong to her). The reason the Kidushin is valid is because the woman has shown her consent and has received Hana'ah since the man did what she said. The reason she is not Mekudeshes when she tells the man to give the bread to someone else's dog is because she was not requesting him to give it to the dog, but rather she was saying that she is not interested in Kidushin and that he should do something else with the bread.

Why, then, does Rashi not explain the case of the rock in the same way? Rashi should say that the reason she is not Mekudeshes when she says to put the money on someone else's rock is because she is not showing consent. When she says to put it on her rock, she is Mekudeshes because she is showing that she agrees to the Kidushin, and she receives Hana'ah from the man doing what she asks by putting the money on the rock for her to take. When the money is placed on a jointly-owned rock, the Gemara is uncertain whether she is showing consent, or whether she is showing disinterest. In either case, the rock does not have to be Koneh the money for her in order for her to become Mekudeshes!

ANSWERS:

(a) The RASHBA and RAN explain that even if the man cannot be Makneh to someone money normally by placing it on property that is owned jointly, nevertheless the woman is Koneh from the man when he places money on a rock that the two of them own jointly. The reason, they explain, is because since the man wants to be Mekadesh her, he decides that he is going to be Makneh to her the portion of the rock on which the money is resting. Since that portion of rock is entirely hers, it can be Koneh for her through Kinyan Chatzer.

What does the Rashba mean? How can the woman acquire the man's portion of the rock just because the man wants to give it to her? No act of Kinyan has been made on the rock!

We might suggest that she is Koneh it through the process described by the RAN in Nedarim (45b) with regard to a jointly-owned Chatzer. The Ran writes that even if, normally, the Halachah is "Ein Bereirah" in the case of a jointly-owned piece of property, nevertheless Bereirah does work to give any portion of the land that either partner uses to that partner at the time that he uses it. Since the woman is using the rock at this moment to acquire the money of Kidushin, the rock underneath the money becomes hers.

However, if this is correct, then why does the Gemara in Bava Basra (cited by Tosfos) tell us that one partner cannot be Makneh to the other partner an object by placing the object on the jointly-owned property? It must be that when the object is being placed on the land by the seller for the buyer to receive it, they are both using the property, and therefore the property still belongs to both of them. Therefore, with regard to Kidushin as well, when the man puts the money on the rock for the woman to receive it, they are still both considered owners of the rock, so how is it possible for her to be Konah the money?

The Acharonim offer a number of answers.

1. The MACHANEH EFRAIM (Hilchos Mechirah, Kinyan Chatzer #6) writes that partners indeed do not need a Kinyan in order to transfer ownership of the property from one to the other (at least with regard to She'eilah, lending the property to the other partner). The reason why the Gemara in Bava Basra says that they cannot sell to each other is because the object that is being sold is resting in the property before they agreed on the sale. Since the property belonged to both of them at the time that the object was originally placed there, they cannot be Makneh to each other with that property. (The reason for this difference requires further elucidation.)

2. The AVNEI MILU'IM suggests an answer based on TOSFOS in Bechoros (18b, DH Aknuyei). The Gemara there says that if a person leaves his animal to graze in his own land in the care of a shepherd who is a Kohen, and then that animal gives birth to its firstborn calf, the owner is Makneh a portion of his land to the shepherd-Kohen so that he can be Koneh the Bechor immediately when it is born. The owner does this because he wants to partake in the Mitzvah of having a Kohen raise his Bechor. When the Kohen is taking care of his Bechor on the land owned jointly by him and the owner, the owner is taking part in the Mitzvah of raising the Bechor (if the Kohen had not been Koneh the Bechor, it would not have been a Mitzvah to take care of the Bechor).

Tosfos in Bechoros asks how the Kohen acquires a portion of the land. Even if the owner wants to give it to him, the Kohen should have to make a Chazakah on the land in order to be able to be Koneh it! What Chazakah or act of Kinyan did he make?

Tosfos answers that even without doing an act of Kinyan, the owner is "Gamar u'Meshabed Nafshei" -- he decides wholeheartedly that he wants to give over a share of the land to the Kohen, and therefore the Kohen is Koneh it. The Avnei Milu'im explains that Tosfos means that because of the Mitzvah that the owner is doing, he is able to effect a Kinyan even without doing any action.

The Avnei Milu'im suggests that here, too, since it is a Mitzvah to be Mekadesh a woman (see Insights to Beitzah 36b), the man is giving the woman his share of the rock to the woman in order for the Kidushin to be effective. Since it is a Mitzvah, he is able to wholeheartedly transfer the property to her without any formal act of Kinyan.

3. Perhaps in the case of jointly-owned property, it is possible for one partner to be Makneh part of the jointly-owned property to the other partner without an act of Kinyan, like the Ran in Nedarim says, and like the Machaneh Efraim says. That is why the woman acquires the rock. Why, then, in Bava Basra does the Gemara say that when one partner sells something to the other partner, the buyer is not Koneh the object when it is placed upon the jointly-owned property? Why do we not assume that the seller is Makneh to the buyer the part of the land underneath the object?

The reason is that in the case of a sale, we cannot be certain that the seller wants the sale to be completed as soon as possible. Having the sale completed sooner might be to his detriment -- for example, when the market price of the goods rises before the buyer takes the goods home with him. If the Kinyan was already effective, then the seller will not be able to change the terms of the transaction. If no Kinyan was made yet, the seller can still retract the sale until the buyer agrees to pay more. Therefore, we have no reason to assume for certain that the seller would give the portion of the land beneath the object to the buyer.

With regard to Kidushin, in contrast, we know that it is only to the benefit of the husband to be Mekadesh the woman (because if he decides that he does not want to be married to her, he can send her away with a Get at anytime). On the other hand, if he is not Koneh her until later, she might change her mind and he will not be able to be Mekadesh her. Therefore, when he is trying to be Mekadesh her, we do assume that he was Makneh to her the portion of the rock underneath the money of Kidushin.

(b) Why does Rashi not explain like Tosfos, that the question of the Gemara is whether the woman shows agreement or not, and not whether the rock is Koneh the money for the woman or not? Even if the rock is not Koneh the money for the woman, the woman should still be Mekudeshes because she shows consent and she derives Hana'ah from the fact that the man put the money where she told him to put it.

The answer is that Rashi holds that it is not considered a Hana'ah unless the woman actually derives a measurable benefit at the time that the husband does what she says. Therefore, if the husband gives a loaf of bread to her dog at her request, she benefits because she gains by saving money (a measurable benefit) for dog-food. Similarly, if the man gives money to her father or to another person of her choice, she certainly gains because the person who receives the money will feel as though he received it from her (this is the Halachah of Arev). However, when the husband places the money of Kidushin on a rock for her, she does not derive direct benefit. Even if it is her rock, and she could now go and take the money for herself, nevertheless until she takes the money she has not benefited from it at all. For example, if an animal comes and takes away the money, she will not have received anything from it. Therefore, by putting money on the rock it cannot accomplish Kidushin by giving Hana'ah to the woman, but only by actually being Makneh the money to the woman (the normal method of Kidushei Kesef, in contrast to Kidushei Hana'ah). That is why Rashi explains that the rock must be a "Chatzer Mishtameres" and must be Koneh the money for the woman.

Tosfos, on the other hand, holds that when the man gives up money because of her request, it is considered a Hana'ah for her, even if she does not actually gain the money for herself.

According to this understanding, if the woman initiates the Kidushin by saying, "Put money on my rock and then I will be Mekudeshes to you," Rashi will hold that she is not Mekudeshes because that is not considered a Hana'ah. Tosfos will hold that she is Mekudeshes. Similarly, according to Tosfos, if she says to the man, "Throw money into the sea and I will become Mekudeshes to you," since she has initiated the procedure, she has shown interest in becoming Mekudeshes and therefore the Kidushin should be valid because the man loses money at her request.

The Machlokes between Rashi and Tosfos might revolve around how to understand the concept of Kidushei Arev (7a). What is the Hana'ah that she receives in the case of Kidushei Arev? Tosfos holds that the Hana'ah that the Arev receives is that someone (the lender) gave up money at his request. Likewise, the woman gets the Hana'ah of an Arev whenever the man gives away money at her request. Rashi, though, holds that the Hana'ah of an Arev is that a person receives money at the Arev's request and therefore that recipient will be grateful to the Arev as if the Arev himself had given him money. (See RASHBA here.) Accordingly, the Kidushin of Arev will only work if the man gives money to a person who is able to be grateful to the one who caused him to receive that money, but not if the man gives away money at her request by placing it on a rock or throwing it into the sea. (That is why the Gemara does not ask what the Halachah would be in a case where the dog is jointly-owned by the man and the woman. In such a case, she is certainly deriving benefit since she would have to pay for half of the dog-food.)