לזכות ידיד נפשי משה יהודה בן פעשא דינה לברכה והצלחה
וידיד נפשי ר' יהודה יעקב בן דינה חאשע ואשתו היקרה
לברכה והצלחה בכל מעשי ידיהם
Two boys wanted to marry Shprintza, Moishe and Tuvya. It came time and Shprintza decided. Her father was asked by his neighbor in shul who the lucky boy is. He replied. "Moishe is the lucky boy. Tuvya is going to marry her...."
Ba-dam-chhhhhhhhhh!
The Mishna in Kiddushin [59b] says that if one married a woman מעכשיו ולאחר שלשים יום - from now and after 30 days, and in the interim another man marries her, מקודשת ואינה מקודשת - She is married and not married. What does THAT mean??
Rav and Shmuel argue about the meaning of the Mishna. According to Rav she is married to the BOTH men out of doubt. Did he mean to retract and he decided that he doesn't want to marry immediately but after 30 days in which case she is married to the second man [who took her before the 30 days expired]. Or did he mean to make a תנאי that he has the option of changing his mind for the next 30 days and if he didn't then she is married to the first man retroactively. Since we don't know what he meant, she is ספק married to both and requires a get from both men. מקודשת ואינה מקודשת! We are in doubt as to whether he means a חזרה or a תנאי.
Shmuel asserts that she מקודשת out of doubt to the first man for thirty days. After 30 days, if the first man is still alive then the second man's kiddushin is undone and she is married to the first man. Shmuel is CERTAIN that he means תנאי and the first kiddushin takes effect after thirty days on condition that he doesn't change his mind [Rashi in ד"ה ושמואל אמר writes שמא ימות ראשון while in ד"ה לשמואל פשיטא ליה דתנאי הוי he writes שמא יחזור בו].
Abaye says that according to Rav, if one man married a woman from now and after 30 days, another man married her from now and after 20 days and a third man married her from now and after 10 days, she is married to the first and third men out of doubt, but not the second - however you spin it... If we understand him to be making a תנאי then she is married to the first man [retroactively]. If the words are a retraction, a חזרה, then she is married to the third fellow whose marriage takes effect before anyone else's. But we don't say that we never know whether he meant תנאי or חזרה. It is either this or that - תנאי or חזרה. If this language implies תנאי - the first man got her. If the language implies חזרה, then the last man is the lucky one.
Rav Yochanan has a third opinion. He holds that BOTH men are married to her. Each gets a "piece". Rav Mesharshiya kindly explains Rav Yochanan's opinion by comparing it to the laying of bricks where each brick is placed in such a way that leaves space for another brick to be placed down on top of it. So too, each man [even a hundred] leave space for other men to marry her.
The Rambam says something utterly COMPLEXING!!
Get on your "Rambam caps".
האומר לאשה הרי את מקודשת לי מעכשיו ולאחר שלשים יום בדינר זה ובא אחר וקידשה בתוך השלשים יום הרי זו מקודשת מספק לשניהם. לפיכך שניהם נותנין גט בין בתוך השלשים יום בין לאחר השלשים יום. הרי את מקודשת לי מעכשיו ולאחר שלשים יום. ובא אחר ואמר הרי את מקודשת לי מעכשיו ולאחר עשרים יום. ובא אחר ואמר הרי את מקודשת לי מעכשיו ולאחר עשרה ימים. אפילו הן מאה על הסדר הזה קידושי כולן תופסין בה וצריכה גט מכל אחד ואחד מפני שהיא ספק מקודשת לכולן: [אישות ז' י"ב]
[The following rules apply when a man] tells a woman: "Behold, you are consecrated to me with this dinar from this time onward, and after 30 days," and another person consecrates her within the 30 days. [There is doubt regarding the matter and] both [men] are considered as having established kiddushin that may possibly be binding. Therefore, both are required to divorce her. The divorce may be given within the [original] 30 days or afterwards.
[Should one man tell a woman,] "Behold, you are consecrated to me from this time onward, and after 30 days"; and another man comes and tells her, "Behold, you are consecrated to me from this time onward, and after 20 days," and another man comes and tells her, "Behold, you are consecrated to me from this time onward, and after 10 days," all [the men] are considered as having established kiddushin [that are] binding, and every one must divorce her. [Indeed, these rules apply] even when a hundred men consecrate her in this manner.
[In the English Rambam, the translator strangely adds words to the Rambam that he never said and may well not have meant.]
The Rambam starts by paskening Rav's opinion. She is safek married to both men and requires a get from both - but she wouldn't be safek married to more than two. He then continues and paskens Rav Yochanan that she is definitely married to all of them - even a hundred or more.
So who is it? Rav or Rav Yochanan??
Many great minds toiled to understand this Rambam.
Many great minds toiled to understand this Rambam.
The Maggid Mishneh explains that the Rambam paskens like Rav but rejects Abaye's understanding of Rav that she is only safek married to the first and last men but rather she is safek married to them all but we never know when the man means תנאי and when he means חזרה. Unlike Abaye who says that this language of "from now and after...." means either תנאי or חזרה, the Rambam asserts that we never know what it means. So maybe the first and last men meant חזרה while the middle man meant תנאי in which case he would retroactively get her first.
AHHHHHHHHHHHHH!!
HARRRRRDDDD TO STOMACH SUCH AN APPROACH. The Rambam argues with Abaye about the correct understanding of Rav's opinion when nobody in the Gemara does?
Shver.
The Kesef Mishna tries to explain that the Rambam paskens like Rav Yochanan but rejects Rav Mesharshiya's explanation that each man left room for other men and understands that the reason she is married to all of them is because we never know whether the man meant תנאי or חזרה, so maybe the first and third men meant חזרה and the second man meant תנאי.
Also shever! Why would the Rambam argue with an Amora if nobody in the gemara does and assume that he understood Rav Yochanan's opinion more accurately?
The Rashba says that the Rambam paskened like Rav but she needs a get from all of them lest we confuse her with a complete אשת איש. Abaye said that the middle fellow doesn't require a get midioraisa but midarabanan he would agree. The Rashba felt that this answer was a long shot because the Gemara mentions nothing of the sort.
The Meiri said that she is indeed married to all of them like Rav Yochanan and the Rambam calls it a ספק because she may not have ביאה with any of them.
The Ran suggested that the Rambam wasn't sure who to pasken like so he ruled like both Rav AND Rav Yochanan out of doubt. [עי' בקה"י החדשים סי' ס"ז]
The Avodas Hagershuni [118] cites the answer of the Sha"ch that the Rambam really ruled like Rav Yochanan but while Rav Yochanan holds that if one makes a שיור [leaves over] in Kiddushin, the marriage is a ודאי, the Rambam paskens that שיור is only a ספק קידושין. This is the Rambam לשיטתו that if one marries a woman vis-a-vis every man in the world but one [חוץ לפלוני] it is only a safek kiddushin.
The Avodas Hagershuni questions this explanation from the fact that the Rambam paskens in this very halacha that if a woman marries one man after 30 days and then another within 30 days, she is married to both מספק. But there should be no safek about the second man. Either way you spin it she is married to him בודאי. If שיור is effective in Kiddushin then she is married to both of them בודאי. If there is NO שיור in Kiddushin then she is married only to the second man בודאי who married her without leaving over any space for any other guy. After the requisite time period he deliniated elapses then she is married to him and to him alone. So why does the Rambam say that she is married to both מספק?
The Toras Gittin explains that if the halacha is that there is no שיור in Kiddushin then we have a new ספק whether his language implies a תנאי or a חזרה. If it is a תנאי then she is the first man's wife and not the second. [עי' אבנ"ז אבה"ע תס"ו]
The Meiri said that she is indeed married to all of them like Rav Yochanan and the Rambam calls it a ספק because she may not have ביאה with any of them.
The Ran suggested that the Rambam wasn't sure who to pasken like so he ruled like both Rav AND Rav Yochanan out of doubt. [עי' בקה"י החדשים סי' ס"ז]
The Avodas Hagershuni [118] cites the answer of the Sha"ch that the Rambam really ruled like Rav Yochanan but while Rav Yochanan holds that if one makes a שיור [leaves over] in Kiddushin, the marriage is a ודאי, the Rambam paskens that שיור is only a ספק קידושין. This is the Rambam לשיטתו that if one marries a woman vis-a-vis every man in the world but one [חוץ לפלוני] it is only a safek kiddushin.
The Avodas Hagershuni questions this explanation from the fact that the Rambam paskens in this very halacha that if a woman marries one man after 30 days and then another within 30 days, she is married to both מספק. But there should be no safek about the second man. Either way you spin it she is married to him בודאי. If שיור is effective in Kiddushin then she is married to both of them בודאי. If there is NO שיור in Kiddushin then she is married only to the second man בודאי who married her without leaving over any space for any other guy. After the requisite time period he deliniated elapses then she is married to him and to him alone. So why does the Rambam say that she is married to both מספק?
The Toras Gittin explains that if the halacha is that there is no שיור in Kiddushin then we have a new ספק whether his language implies a תנאי or a חזרה. If it is a תנאי then she is the first man's wife and not the second. [עי' אבנ"ז אבה"ע תס"ו]
In the Minchas Asher [קידושין סי' ס"א] he suggests that the Rambam is ruling like Rav Yochanan but we have to adjust our understanding of Rav Yochanan. He didn't mean to say that all of the men have a ודאי חלק in this woman. That doesn't fly because as we learned on daf zayin, a woman can't be married to two men at the same time. Rather it is a case of "ספק בעצם" - an objective case of pure doubt for which there is no resolution [Rav Shimon Shkop in his Shaarei Yosher 3/22 and his Chidushei Gitin Simman zayin discusses this concept]. We have no way to gauge which man is her true husband so she is ספק married to all of them until she receives a get.
HaGaon Rav Moshe Yehoshua Heschel Orenstein [he was the brother of the famous Yeshuos Yaakov and gave smicha to the Divrei Chaim of Tzanz] answered as follows:
