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Kidushin, 52

1) WHY FRUITS OF "SHEVI'IS" ARE NOT LIKE OTHER ITEMS OF "HEFKER"

QUESTION: The Mishnah (50b) records an incident in which a man gave a basket of figs of Shevi'is to five woman, two of whom were sisters, in order to Mekadesh them. The Chachamim ruled that none of the women are Mekudeshes. The Gemara cites Rav who says that we can infer from the Mishnah that, in a normal case of Kidushin (when a man is Mekadesh one woman) with fruits of Shevi'is, the Kidushin takes effect.

RASHI gives two explanations for what Rav is teaching. The first explanation is that Rav is teaching that we do *not* say that the fruits of Shevi'is do not belong to the man and are not his monetary possession such that he can be Mekadesh a woman with them; rather, since he has picked them up and acquired them, the fruits become his monetary possession for all purposes. The second explanation is that Rav is teaching that we do not say that fruits of Shevi'is may not be used for any purpose other than normal consumption (i.e. eating).

According to the first explanation of Rashi, why would we have thought that the man should not be entitled to perform Kidushin with fruits of Shevi'is? Why should such fruits differ from any other item of Hefker that becomes the property of the person who picks it up and acquires it, and is able to use it for any purpose that he wants?

ANSWER: The PNEI YEHOSHUA explains that we might have thought that fruits of Shevi'is contain such a high degree of Kedushah that they are like Ma'aser Sheni which, according to some Tana'im, is considered "Mamon Hekdesh" (the property of Hekdesh) and cannot be used to be Mekadesh a woman since it is not owned by the man. Indeed, the Gemara later (53a) entertains the possibility that fruits of Shevi'is should contain such Kedushah. Therefore, the Gemara here teaches that once a person has picked up and acquired the fruits of Shevi'is, they are considered "Mamon Hedyot" (owned by man) and they *may* be used for Kidushin.

QUESTION: RASHI (as quoted in the previous Insight) maintains that the prohibition of conducting business (Sechorah) with fruits of Shevi'is does not apply when one uses the fruits to be Mekadesh a woman. TOSFOS (DH ha'Mekadesh) argues and maintains that there is an Isur of Sechorah in such a case, but that the Kidushin is valid since the Isur is only l'Chatchilah and does not stop the Kidushin from taking effect b'Di'eved. (According to Tosfos, this is the Chidush of the Mishnah.)

The case of the Mishnah, though, is where one woman acted as a Shali'ach on behalf of the other women in accepting the fruits of Shevi'is for them. According to Tosfos who explains that there is an Isur of Sechorah involved in the act of Kidushin with the fruits of Shevi'is, this woman's Shelichus to receive the fruits for the other women should be considered a "Shelichus l'Devar Aveirah" and it should not be valid at all! Even though Kidushin performed with fruits of Shevi'is does take effect b'Di'eved, an Isur still has been transgressed, and thus the Shelichus should be annulled and the Kidushin should not take effect for any of the women other than the woman who accepts the fruits for himself!

ANSWERS:

(a) The SEFER HA'MIKNAH answers that the principle of "Shali'ach l'Devar Aveirah" applies only when the Shali'ach was specifically appointed to transgress the Aveirah. If, however, the Shali'ach was not appointed specifically to do the Aveirah, but it just happened that the Shali'ach did an Aveirah, it is not considered a case of a "Shali'ach l'Devar Aveirah."

In our case, the other women did not tell the Shali'ach to do an Aveirah and accept fruits of Shevi'is for Kidushin. All they said that was that she should accept Kesef or Shaveh Kesef for the sake of making the Kidushin. Therefore, when the man presents to the Shali'ach fruits of Shevi'is, she is acting on her own volition when she accepts them and she is not acting on the direct instructions of those who sent her. Hence, the Aveirah is not an inherent part of the Shelichus and the Shelichus is not considered a "Shelichus l'Devar Aveirah." (See KETZOS HA'CHOSHEN 182:2.)

(b) The NODA B'YEHUDAH offers a different explanation. He explains that when the man gives fruits of Shevi'is to the woman for Kidushin, it is the *man* who is doing the Isur of Sechorah with Shevi'is and not the woman. *He* is the one performing the act of Kidushin, and he is the one who is transgressing the Isur of Sechorah with fruits of Shevi'is. The woman who accepts the Kidushin is a Shali'ach of the other women and not of the man. Since her act of accepting the Kidushin involves no Aveirah, the Shelichus remains valid and the Kidushin takes effect.

52b

QUESTION: The Gemara relates an incident of a man who snatched money from his friend and then gave it to a woman, who was washing her feet in a bucket of water, for the sake of Kidushin. Rava ruled that the Kidushin is not valid, because we do not rule like Rebbi Shimon who says that in a normal case of Gezeilah, the victim despairs of ever getting his money back ("Yi'ush"). Rather, he does expect to get his money back, and thus the thief did not acquire the money for himself.

Why does the Gemara find it important to describe exactly what the woman was doing at the time? The Halachah that the Gemara is teaching is that in a normal case of a theft, we do not assume that the owner despairs of ever getting his item back. This Halachah has nothing to do with the fact that the woman happened to be soaking her feet at the time the incident occurred!

ANSWER: The RITVA explains that we might have thought that when a woman is in the midst of caring for herself, she does not really pay attention to what is going on around her. When the man said to her, "You are hereby betrothed to me," the woman did not respond. Instead of assuming that she is agreeing to accept the Kidushin, we might have thought that she is so involved with herself that she did not really hear what he said. The Gemara, therefore, teaches that if not for the fact that the Kidushin was performed with a stolen item, the Kidushin *would* have taken effect and that the woman, by virtue of her silence, would have been considered to be consenting to the marriage.