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Kidushin, 9

9b

QUESTIONS: The Gemara discusses the source for Kidushei Bi'ah. Rebbi Yochanan gives as the source the verse, "Be'ulas Ba'al" (Devarim 22:22_. Rebbi gives as the source the verse, "Ki Yikach Ish Ishah u'V'alah" (Devarim 24:1). The Gemara explains that Rebbi Yochanan does not learn Kidushei Bi'ah from "u'V'alah" because that verse might be teaching that Kidushin is made only when both Kesef and Bi'ah are done, as it implies, "Ki Yikach (Kesef)... u'V'alah (Bi'ah)."

(a) How can Rebbi Yochanan, who is an Amora (see TOSFOS Kesuvos 8a, DH Rav), argue with Rebbi, who is a Tana?

(b) The Gemara cites Rava who learns from the verse "Ki Yikach Ish Ishah u'V'alah" that "Kidushin she'Ein Mesurin l'Vi'ah" is not a valid Kidushin; that is, if a man is Mekadesh a woman with whom we cannot consummate the marriage with Bi'ah, the Kidushin is not valid (for example, a man who is Mekadesh one of two sisters without specifying which one). The Gemara asks that the verse is already being used to teach that Kidushei Bi'ah is a valid form of making Kidushin, like Rebbi says. How, then, can Rava learn from it a second Halachah? The Gemara answers that Rava maintains that the verse must be teaching us two different Halachos -- that Kidushei Bi'ah is a valid form of Kidushin, and that "Kidushin she'Ein Mesurin l'Vi'ah" is not a valid Kidushin, because if it was teaching only the law of Kidushei Bi'ah, then the verse would have said, "Ki Yikach Ish Ishah *O* Va'alah," because Kidushei Kesef and Kidushei Bi'ah are two separate form of Kidushin which are not related to each other. Since the verse says instead, "Ki Yikach... *u'*V'alah," it teaches that there is a Halachah that applies to Kidushei Kesef which involves Bi'ah; it teaches that the "Ki Yikach" (the Kidushin of Kesef) must have an element of "u'V'alah," meaning that the Kidushin must be Kidushin which is "Mesurin l'Vi'ah."

Why does the Gemara assume that Rava holds like Rebbi and learns from "u'V'alah" that Kidushei Bi'ah is a valid form of Kidushin? Perhaps he learns like Rebbi Yochanan who does not learn Kidushei Bi'ah from "u'V'alah," and thus there is no question on Rava! Even though Rebbi Yochanan also learns a different Halachah from "u'V'alah" -- that an Amah Ivriyah is not acquired through Bi'ah, the Gemara already explained that it is possible to learn both things from "u'V'alah," because the Torah could have said "u'Va'al." If Rava holds like Rebbi Yochanan, then there is no question on Rava's opinion! (REBBI AKIVA EIGER)

ANSWERS:

(a) There are a number of ways to explain how Rebbi Yochanan, an Amora, argues with Rebbi, a Tana.

1. The RAMBAN (Pesachim 114b) and the MAHARI BEIRAV indeed assert that Rebbi Yochanan had the status of a Tana. However, Tosfos in Kesuvos (loc. cit.) and most other Rishonim do not agree with this.

2. The YOSEF DA'AS points out that TOSFOS in Shabbos (70b, DH Lo Mashma Lei) asks a similar question on Shmuel and answers that Shmuel had received a tradition (Kabalah) from the Tana'im that there was an opinion that learned like he was learning. Here, too, R Yochanan might have had a Kabalah from a Tana that there were those who learned Kidushei Bi'ah from the verse of "Be'ulas Ba'al."

3. The RAMBAN and RASHBA suggest that the Limud of Rebbi depends on the Machlokes Tana'im between Rebbi Yoshiyah and Rebbi Yonasan in Bava Metzia (94b), regarding whether the letter "Vav," when it serves as a "Vav ha'Chibur," means only "and" or can also mean "or." Rebbi Yoshiyah maintains that the Vav means only "and." Rebbi Yonasan maintains that the Vav also means "or" unless the verse specifies otherwise.

Rebbi Yochanan does not learn Kidushei Bi'ah from "Ki Yikach Ish Ishah u'V'alah" because he follows the opinion of Rebbi Yoshiyah. According to his opinion, the "Vav" of "u'V'alah" means "and," and thus the verse cannot be teaching that Kidushei Bi'ah can be used alone without Kesef. Rebbi follows the opinion of Rebbi Yonasan (who says that the Vav can mean "or"), and therefore the Vav of "u'V'alah" does not imply that Kidushei Bi'ah must be used together with Kesef.

Accordingly, Rebbi Yochanan is not expressing his own opinion, but he is expressing the opinion of a known Tana who argues with Rebbi.

(b) The OR CHADASH suggests that according to what the Ramban and Rashba write (see previous answer), perhaps the Gemara assumes that Rava holds like Rebbi here because in Bava Metzia (95b) we find that Rava holds like Rebbi Yonasan. As the Ramban and Rashba explain, one who holds like Rebbi Yonasan would not be bothered by Rebbi Yochanan's question and would learn like Rebbi. This is why the Gemara assumes that Rava learns the verse of "u'V'alah" like Rebbi.

However, HE'OROS B'MASECHES KIDUSHIN asks that from our Gemara the opposite seems to be true. It seems that Rava holds like Rebbi Yoshiyah and not like Rebbi Yonasan from the Gemara's answer to its question. The Gemara explains that according to Rava, since the verse says "u'V'alah" instead of "O Va'alah," we can derive an additional Halachah from the verse -- that the Kidushin made by Kesef must be able to be Mesurin l'Vi'ah. If Rava holds like Rebbi Yonasan, then even when the verse says "u'V'alah" it is as if it says "O Va'alah," and therefore he should not be able to make any inference from the fact that the Torah writes "u'V'alah" instead of "O Va'alah!" (See PNEI YEHOSHUA who suggests another explanation for the Gemara's question on Rava, according to which Rava holds like Rebbi Yochanan (and like Rebbi Yoshiyah). However, RASHI (DH u'l'Rava) does not explain that way.)

In addition, even if Rava holds like Rebbi Yonasan, he does not necessarily learn Kidushei Bi'ah from "u'V'alah." Perhaps he learns from "u'V'alah" that an Amah Ivriyah is not acquired with Bi'ah, and that "Kidushin she'Ein Mesurin l'Vi'ah" is not valid, and he learns from "Be'ulas Ba'al" that a woman becomes Mekudeshes through Bi'ah, like Rebbi Yochanan.

It seems, therefore, that the Gemara could have indeed answered that Rava holds like Rebbi Yochanan. However, the Gemara wanted to explain how Rava would learn the verse *even* if he held like Rebbi. Conversely, the Gemara wanted to show that according to Rava, even Rebbi holds that "Kidushin she'Ein Mesurin l'Vi'ah" is not valid, and there is no Machlokes Tana'im with regard to this Halachah.