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Kidushin, 43

1) A SHALI'ACH WHO DERIVES FORBIDDEN PLEASURE

OPINIONS: Rava says that even if Shamai holds that "Shnei Kesuvim ha'Ba'im k'Echad Melamdin," and even if he does not learn the Derashah of "ha'Hu," nevertheless he agrees in a case where a person tells a Shali'ach to go and have relations with an Ervah or go and eat Chelev that the Shali'ach is Chayav and his sender is Patur, because "we do not find anywhere in the entire Torah that one person derives [forbidden] pleasure and another person is punished for it."

TOSFOS (DH she'Lo Matzinu) is in doubt about who will be Chayav in a case of Me'ilah. If, for example, the Meshale'ach told the Shali'ach to go and warm himself from the wool of an animal that is Hekdesh, do we say that since, with regard to Me'ilah, there is a rule that "*Yesh* Shali'ach l'Devar Aveirah," therefore the Meshale'ach is Chayav? Or do we say that since the act of Me'ilah is being done by deriving pleasure, we must compare it to a case of Ervah or Chelev, and apply the logic that "we do not find anywhere in the entire Torah that one person derives [forbidden] pleasure and another person is punished for it," and hold the Shali'ach liable?

ANSWER: RAV CHAIM of BRISK (Hilchos Me'ilah 8) deduces from the words of the RAMBAM that in such a case the Shali'ach is Chayav since, in cases of Me'ilah, "Yesh Shali'ach l'Devar Aveirah." He refers to the question of Tosfos from our Gemara that "we do not find anywhere in the entire Torah that one person derives [forbidden] pleasure and another person is punished for it," and he explains that there is a fundamental difference in the essential nature of the Isur of Me'ilah and that of Ervah and Chelev.

The Isur of Me'ilah is similar to that of Gezel, theft. Since Hekdesh is the "property" of Gavohah, one is forbidden to steal from it, similar to the prohibition of stealing from a person. The Isur of Ervah and the Isur of Chelev, in contrast, is the act of Bi'ah and the act of Achilah respectively, which can be classified as acts of pleasure in which one is forbidden to indulge. We can therefore assert that only when the actual nature of the Isur is one of "being prohibited to derive pleasure" do we apply the logic that "we do not find anywhere in the entire Torah that one person derives [forbidden] pleasure and another person is punished for it," but when the Isur does not depend on Hana'ah, pleasure, even though there are cases and circumstances in which Hana'ah is present, since the Aveirah which is being done is not one of Hana'ah per se we therefore do not consider it an act of "Zeh Neheneh" (this person derives forbidden pleasure) but rather an act of Gezel, theft, to which we apply Me'ilah's exception to the rule and say that "Yesh Shali'ach l'Devar Aveirah."

Rav and Rav Shila argue whether a Shali'ach can serve as a witness. The Gemara asks that according to Rav Shila, who says that a Shali'ach cannot serve as a witness, if the reason is because the sender did not explicitly designate the Shali'ach to be a witness, then when a man says to two people to go and be Mekadesh a woman for him and he does not explicitly add, "And you are my witnesses," the Kidushin should not be valid. Rather, the Gemara says, Rav Shila's reasoning is because of "Shali'ach Shel Adam Kemoso," and since the Shali'ach is like the sender, he cannot be a witness because a person cannot serve as a witness for himself.

Even though the Gemara concludes is that one does not need to explicitly designate the witnesses for an act of Kidushin, there are times when one is required to single them out. The RITVA here says that if there are people who are invalid witnesses (such as relatives) present at the Kidushin and they are witnessing the act of Kidushin, if no witnesses were specifically designated then these relatives will invalidate the testimony of those who are valid witnesses! This is because of the rule that "if one witness [in a group] is found to be a relative or invalid, then all of the witnesses [in the group] are invalid," and since all those present at the Kidushin are witnessing the act together, they are considered one group of witnesses, and thus the entire group should be disqualified! It is therefore necessary to designate two specific witnesses prior to the Kidushin, thereby giving only those two the capacity of witnesses, and no one else present is considered part of the group of witnesses. This ruling of the Ritva is widely accepted (see also KETZOS HA'CHOSHEN CM 36) and is the prevalent practice at most weddings; the officiating rabbi designates two witnesses before the Chupah.

QUESTION: Why, though, is this practice not performed in all situations that require witnesses? For example, in a case of a monetary transaction (such as a loan or a sale) that is performed in front of witnesses, specific witnesses should be designated so that if there is a relative present he will not invalid all of the other witnesses!

ANSWER: The RITVA explains that the role of witnesses for Kidushin is different than their role in other situations. In the case of Kidushin, the witnesses are "Edei Kiyum" -- their testimony of the event creates the Kidushin. In contrast, in other situations, such as monetary transactions, the witnesses are there merely to see the act so that they will be able to provide proof of it later if necessary. Indeed, those who witness the transaction are not considered witnesses until later, when they come to a Beis Din to testify about what they saw. Hence, as long as the witnesses come to Beis Din without the relative, they remain valid witnesses.

43b

QUESTION: The Gemara quotes the Mishnah in Gitin (64b) in which the Rabanan state that both a Na'arah Me'urasah and her father may accept her Get. Rebbi Yehudah there argues and says that only her father may accept her Get.

What is the Halachah in the case of a Ketanah? Does the same Machlokes apply, or would the Rabanan agree with Rebbi Yehudah in such a case and say that only the father may receive the Get for his daughter who is a Ketanah?

ANSWERS:

(a) There seems to be a contradiction between two comments of RASHI in our Sugya. Rashi (DH Na'arah) first says that the same Machlokes applies to a Ketanah. Later, Rashi (DH Hi v'Aviha) says that in the case of a Ketanah everyone agrees that only the father has the power to receive a Get!

TOSFOS (DH Tenan) points out that Rashi changed his mind. At first, Rashi held that only a Na'arah, and not a Ketanah, may accept her own Get according to the Rabanan, and afterwards Rashi changed his mind (because of the Gemara on 44b) and wrote that, according to the Rabanan, a Na'arah and a Ketanah are the same and each one may receive her Get herself. (It is interesting to note that Rashi's final ruling is expressed in the earlier comments of Rashi, and his earlier opinion is expressed in his later comments; see MAHARSHAL.)

(b) The RIF (in Gitin 64b), however, maintains that the Rabanan agree that in the case of a Ketanah only the father may receive her Get.

This Machlokes about how to understand the opinion of the Rabanan depends on how to view the right of a Ketanah to receive a Get. All opinions agree that if the father has died, then even a Ketanah may receive her Get on her own (as is evident from the Sugya on 44b). On the other hand, with regard to all other Halachos, such as Kinyanim and Shelichus, we have learned in the previous Sugyos that a Katan or Ketanah cannot effect a Kinyan nor appoint a Shali'ach. Why, then, is a Get different? Why is the Ketanah able to receive her Get?

It must be that a Get is an exception to the rule, and although a Ketanah usually has no power to effect a Kinyan (such as Gerushin), nevertheless the Torah makes an exception to the rule in the case of a Get and gives to a Ketanah the power to receive a Get.

Alternatively, we may view the Ketanah's ability to receive a Get not based on her personal power, but as a right that she inherited from her father. Since she was under the jurisdiction of her father for matters involving Kidushin and Gitin, and her father had full rights to receive her Get, we say that when the father dies these rights are transferred to the daughter. The Ketanah therefore does not differ essentially in her power to receive a Get more than in her power with regard to other Halachos; it is just that in the case of Get we transfer the rights of the father to his daughter, and this transfer does not apply to other Halachos.

The RITVA explains these two ways of viewing the right of a Ketanah to receive her Get after her father's death as the root of the Machlokes between Rashi and the Rif. Rashi holds that there is a special Gezeiras ha'Kasuv differentiating between Get and Kinyanim, while the Rif holds that the right of a Ketanah is due to "Nisroknah Etzlah Yad Avihah," she has inherited the rights of her father.