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Kidushin, 49

1) AN ERROR IN THE KIDUSHIN FOR THE WOMAN'S BENEFIT

QUESTION: The Mishnah (48b) records a Machlokes regarding a man who is Mekadesh a woman with an item that turns out to be a different item than he said it was (for example, he said, "Be Mekadesh to me with this cup of wine," and it turned out to be a cup of honey). The Rabanan say that she is not Mekudeshes. Rebbi Shimon says that if the error was beneficial ("l'Shevach"), then she is Mekudeshes.

Ula says that the only type of case of error in which Rebbi Shimon says that the woman is Mekudeshes is when the error concerns a monetary matter (e.g. the item that he gave her turned out to be worth more than he said it was worth). When the error concerns a matter of lineage, "Yuchsin" (e.g. he married her on condition that he was a Levi and he turned out to be a Kohen), she is not Mekudeshes, because, in contrast to receiving more money that she expected, receiving a more "Meyuchas" husband is not beneficial to her (see Rashi).

Rav Ashi cites proof to Ula's statement from the Mishnah later (49b) which says that if a man is Mekadesh a woman on condition that he is a Levi and it turns out that he is a Kohen, she is not Mekudeshes, and the Mishnah makes no mention that Rebbi Shimon argues. We see that in a case of an error of lineage, Rebbi Shimon agrees that she is not Mekudeshes, even when the error is to her benefit.

Mar bar Rav Ashi challenges Rav Ashi's proof from the same Mishnah later (49b). The Mishnah says that if a man is Mekadesh a woman on condition that he does not have a grown daughter ("Bas Megudeles") or Shifchah and it turns out that he has one, she is not Mekudeshes. Since the error in that case is one of a monetary matter, and it is to the woman's benefit (for if it turns out that he has a daughter or a Shifchah, the woman has gained in that she has someone to serve her), it must be that Rebbi Shimon also argues in that case, and the reason why the Mishnah does not mention his opinion is because it already mentions his opinion in the first case of the Mishnah (on 48b). So, too, in the case of the error regarding lineage, Rebbi Shimon argues, and the only reason the Mishnah does not mention it is because it already mentions in the Reisha that he argues!

The Gemara answers that we cannot assume that Rebbi Shimon argues in a case of an error of lineage just because he argues in a case of an error in monetary value. Hence, if he does argue in the case of lineage, the Mishnah (49b) should have said so explicitly.

The Gemara gives another answer and says that the case of a "Bas Megudeles" is not referring to a "grown" daughter or Shifchah who can serve the woman (Shevach Mamon, a monetary benefit), but rather to an "important" daughter or Shifchah, which is a benefit for the woman's lineage (Shevach Yuchsin), and that is why Rebbi Shimon agrees in that case.

However, there are a number of other cases in the Mishnah there that *cannot* be explained in this manner, to be referring to an error in *lineage*. One case is when the man is Mekadesh the woman on condition that he is a "Ben Kerach" (a large-city dweller) and it turns out that he is a "Ben Ir" (a small-city dweller), or vice versa. The other case is when he says that he has children and it turns out that he does not have children, or vice versa. These two cases are not cases of Yuchsin and still Rebbi Shimon does not argue!

ANSWER: The MAHARSHA (on the Mishnah there) explains that even though these two cases are Shevach Mamon and not Shevach Yuchsin, the reasoning of Rebbi Shimon as to why he agrees in a case of Shevach Yuchsin applies to these two cases as well. Rebbi Shimon holds that whenever the mistake is l'Shevach, to the woman's benefit, there is no problem of a lack of Da'as, or consent, on the woman's part. The reason that Yuchsin is different is because there is no objective preference or advantage in one over the other, but rather it is a subjective issue depending on the preference of the woman who is being betrothed. Therefore, it is always judged as a Ta'us, an error, for which we must assume she did not have Da'as. The same applies to the abovementioned cases in the Mishnah. There is no clear advantage of one over the other (Ben Kerach or Ben Ir, and Yesh Lo Vanim or Ein Lo) and therefore Rebbi Shimon agrees that in those cases the woman is not Mekudeshes.

(The Maharsha points out that Rashi on the Mishnah gives a different explanation. The Maharsha questions Rashi's explanation and gives a different approach to answer it.)

49b

The Gemara relates that ten Kavim of arrogance descended to the world, nine of which was taken by the nation of Eilam, and the remaining Kav was taken by the rest of the world. The Gemara asks that we find (Zecharyah 5:9-11) that Bavel received an inordinate amount of arrogance. The Gemara answers that the arrogance first went to Bavel, and from there it moved on to Eilam.

The Gemara asks that this implies that Bavel no longer has an inordinate amount of arrogance, but it was taught that a sign of arrogance is poverty, and there is much poverty in Bavel (as the Gemara says earlier)! The Gemara answers that the sign of arrogance is poverty of *Torah*, since the arrogant cannot succeed in learning Torah, while the poverty that exists in Bavel is economic indigence.

RAV CHAIM OF VOLOZHEN (in RU'ACH CHAIM 1:1) points out that when the Torah describes the greatness of Moshe Rabeinu, it does not refer to his attribute of clinging (Deveikus) to Hashem or to his attainment of great heights in spirituality. Rather, the Torah describes him as, "the man, Moshe, was exceedingly humble, more than any person on the face of the earth" (Bamidbar 12:3).

Rav Chaim explains that Moshe Rabeinu's modesty was the primary source of all of his other attributes, especially his greatness in Torah and in prophecy. A person, he explains, is like a vessel -- the thicker its walls are, the less it can contain, while the thinner its walls are, the more it can contain. A person is a vessel made to receive Torah and spirituality. The thinner he makes the "walls" of his personality, the greater and fuller a vessel he will become.

Rav Chaim adds that it is clear to him that if there would live a person today with the same degree of modesty that Moshe Rabeinu had, he would merit to receive and understand the Torah in its entirety.

QUESTION: The Gemara discusses a case of a person who sold his property with intention to move to Eretz Yisrael, but he did not specify his intention at the time of the sale. Later, his plans to move changed. Rava rules that "Devarim she'b'Lev Einam Devarim" and the sale is final.

RASHI (DH l'Nichsei) explains that the "property" which the person sold was his land (Karka). Why does Rashi limit the case to Karka? Why can the case not be referring also to Metaltelin (movable property)? The same Halachah should apply if the person any of his belongings, even Metaltelin, and then later changed his plans!

ANSWERS:

(a) The ROSH explains the words of Rashi based on a practical consideration. While a person might sell his belongings at any time because he is short of cash, he will not leave himself without land on which to live or to work, for he wants to retain a steady source of income. The entire claim of "Mekach Ta'us" in this case can apply only to *land*, where it is understandable that a person would only sell his land if he plans to move away. The same claim will not be accepted for Metaltelin, since we can justifiably assume that he would have sold it anyway (whether or not he was moving), since his Metaltelin is not so necessary to his welfare.

(b) The MAHARSHA explains Rashi's words based on the principle of "Chezkas Mamon." The case that the Gemara is discussing is one in which the buyer has had physical possession of the item from before the time that the seller's claim arose. This must be the case, because otherwise the seller could retract the sale if he wishes, even if no condition or intention to such effect was present in the original Kinyan (and when no money has been transferred, there is not even a curse of "Mi she'Para"). The Gemara later (50a) states that even if "Devarim she'b'Lev" *are* considered "Devarim," it does not necessarily establish a certainty (Vadai), but rather it creates a Safek as to what his original intentions were. Accordingly, there will be a difference between land and Metaltelin. When faced with a Safek, the rule of Chazakah tells us to leave the item in the possession of the person in whose possession it is presently resting. Land always remains in the possession of the original owner, and thus when a Safek arises it should return to the original owner, as the Gemara states. Metaltelin, in contrast, is in the possession of the person who happens to be holding it. Hence, even if we take his unspoken intentions (his "Devarim she'b'Lev") into consideration, it will only create a Safek, and thus the item will remain in the hands of the buyer.