THOUGHTS ON THE DAILY DAF
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KIDUSHIN 7-10 - Dedicated by an admirer of the work of the Dafyomi
Advancement Forum, l'Iluy Nishmas Mrs. Gisela (Golda bas Reb Chaim Yitzchak
Ozer) Turkel, A"H.
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
According to which version of Rav Yosef's opinion does this Beraisa provide
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!
(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
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.
2) PLACING THE MONEY OF KIDUSHIN ON A ROCK
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
(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
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
(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
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.)
(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.
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
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
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.
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.)