Thursday, August 11, 2016

Shaashuei Hadaf: Kiddushin 59 - Where Men And Women Differ

לזכות רבי אברהם יצחק בן אסתר וכל בני ביתו היקרים לי עד מאד!

The mishna [Kiddushin 58b] says that if man gives a woman money to marry her after 30 days and someone marries her in the interim, she is married to the second person. The gemara asks what happens if she retracts before the 30 days are up and cites a machlokes between R' Yochanan and Reish Lakish. R' Yochanan says that her later retraction works while Reish Lakish holds that it doesn't.

The gemara doesn't address a scenario where the MAN retracts. The Rosh says that he may and that the gemara only talks about a case where she retracts because the mishna is focused on her [i.e. SHE was married to Reuven after 30 days and then SHE received kiddushin from Shimon]. Moreover, even Reish Lakish would agree that the man may retract. For it is only in the case where a woman received money from the first man where it is considered a מעשה on her part - נתינת המעות לידה חשיב כמעשה [as the gemara says] - that she may not retract. That would be a case of a דיבור that attempts to nullify a מעשה. This is ineffective according to R"L. However, the MAN may retract.

These words leave us rubbing our heads. The woman may not retract because she originally did a מעשה and her present דיבור may not nullify that מעשה. So why is the man any different? When he retracts, he is ALSO nullifying his original מעשה. Why do we allow that? Where is the equality here?

I demand Justice!!! 

In order to answer this we must digress a bit....

There is a machlokes between R' Yosi and R' Yehuda [in the mishna and cited on 6b] about a case where the man and woman were talking about getting married ["let's live in Bergenfield", "where should we send our kids to school" "does your family have the custom that a married woman shaves all of her hair off?"] or divorced and then he gives her kiddushin money [or get] without specifying what the money is for. R' Yosi says that they are married while R' Yehuda says that he must clarify explicitly why he gave her the money and talking about marriage in advance is not enough. 

The Rashba says a HUUUUGE chiddush in the name of the Raavad: Even according to R' Yehuda who holds that he must be explicit, nevertheless it is not necessary [in a case where he first gave her money after talking about marriage] for him to take the money back and then give it to her again before declaring her married to him [what I call "the phrase that pays"]. Rather, it is sufficient to leave the money with her and just say explicitly that he is marrying her. 

The Rashba is stunned by this novel idea for it flies in the face of the opinion of R' Shimon ben Elazar [Gittin 78a]:

If he told her 'take this loan document', or she took the Get from his belt, and found that it is her Get, she is not divorced unless he says 'this is your Get';

R. Shimon ben Elazar says, the Get is only valid if he takes it back and gives it again and says 'this is your Get.'

If he put it in her hand while she was sleeping, and she woke up and found her Get in her hand, it is not a Get unless he says 'this is your Get';

R. Shimon ben Elazar says, it is valid only if he takes it back and gives it again and says 'this is your Get.'   

So just like where the giving of the get was invalid he must give it again - so too where the kiddushin was invalid it must be done again from the beginning and it should not suffice to just say the phrase?! The Raavad makes no sense either way. If the kiddushin was valid the first time around, then why must he now explicitly declare it? If it wasn't valid the first time, then he should have to start again by taking the money back, saying הרי את מקודשת לי and then giving her the money. But this middle ground of saying it again but not taking back the money is hard to wrap one's brain around....

The understanding of the Raavad is deeeep:  

Even R' Yehuda agrees that when they discuss marriage and then he gives her money there is an אומדנא [reasonable assumption] that he intends to marry her. So his נתינה is a valid one. But in ADDITION [as opposed to "in subtraction"] he must perform a קנין קידושין which is only activated through an explicit declaration of intent [sounds like a high school ball player choosing a college – li-havdil a trillion havdalos…] or an אומדנא ברורה – a clear unequivocal assumption, that he wishes to marry her.

This is the distinction [hold on tight]: To declare the intent of his actions it suffices that he give her the money with an אומדנא  that is fulfilled by speaking with her about marriage - מדבר עמה בעסקי קידושין. That is stage one. However, for the actual חלות קנין – change in her halachic status from "not his wife" to "his wife", it is necessary that to make an explicit declaration. This is stage two.

Now the Raavad is clear [and I know that this is what you were thinking all along]: According to R' Shimon ben Elazar in Gittin, the Get must be returned and given again so that it does not have the status of טלי גיטך מעל גבי הקרקע. This is because he holds that the giving must be done for the sake of גירושין  and with a hand that is fitting for גירושין. To achieve this goal it suffices that he give her the Get after first speaking to her about גירושין  [or קידושין in the kiddushin case]. So stage one of proper giving is accomplished with a general אומדנא. All that lacks now is the explicit declaration to activate the actual חלות [change in halachic status] which can be done later on. That is why according to R' Yehuda, he may make the explicit declaration later.

According to this, we can explain the Rosh. With respect to the woman, she doesn't activate the kiddushin, as it says כי יקח referring to the MAN. However her acquiescence is needed, that she should accept for the sake of kiddushin. About her Reish Lakish said that her קבלה  of the money is considered a מעשה  and therefore she no longer has the right of refusal because her דיבור doesn't have the power to nullify her מעשה. However with respect to the man, besides the מעשה  of giving her the money there is also a separate דיבור of kiddushin which relates in our case to after thirty days. This דיבור can be nullified by another דיבור.

The principal is that with regard to kiddushin and geirushin the essential חלות [change in halachic status that is activated by the kiddushin or geirushin] is independent and distinct from the giving of the money. The money is not what makes the kiddushin happen rather activator of the kiddushin makes it happen with his דיבור in concert with the giving of the money.

This is my understanding of the following sections of Rav Aharon Kotler's shiurim. I am מסופק if one may learn his Torah during the nine days because it is so enjoyable, but I decided לקולא:-).