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Kidushin, 58

KIDUSHIN 58 (13 Tamuz) - Dedicated by Chaim Ozer & Rena Shulman of Teaneck, New Jersey, in memory of his grandmother, Rebbetzin Chiena Kossowsky Z"L, an extraordinary Tzadekes and Melumedes, who passed away on 13 Tamuz 5755 on her 82nd birthday.


QUESTION: Rebbi Chiya bar Avin asked Rav Huna whether "Tovas Hana'ah" -- the right of a person to choose the recipient of the Matanos Kehunah -- is considered a monetary commodity or not (see also Insights to Nedarim 84b and Chulin 131a).

If Tovas Hana'ah is viewed as being a commodity with monetary value, then how do we measure its value? What extra amount of money does the person in "possession" of the Tovas Hana'ah have because of it? Do we evaluate the market-value of Tovas Hana'ah by determining how much a person would pay to acquire the privilege of giving Matanos Kehunah to whomever he wants? If that is the case, then only that amount of money (that someone would pay for the rights of Tovas Hana'ah) is considered the extra money that the owner has.

Alternatively, do we say that the entire value of the item or items for which the person has the rights of Tovas Hana'ah is considered as belonging to him, and he is the owner of the entire worth of those items?


(a) The RITVA discusses this question in the Gemara's discussion concerning one who steals the fruits of Tevel of his friend. The Gemara states that if Tovas Hana'ah has a monetary value, the thief must pay the owner for the value of the Terumah that was in the Tevel. in addition to the value of the Chulin fruits. The Ritva discusses exactly how much the thief must pay. Must he pay only the exact worth of the Tovas Hana'ah, or must he pay back the entire value of the Terumah, because any item for which one has the rights of Tovas Hana'ah is considered to belong entirely to him?

The Ritva proves the second way of understanding from our Mishnah. The Mishnah states that a man, even a Yisrael, can be Mekadesh a woman with Terumah and other Matanos Kehunah. The Mishnah seems to equate the ownership that a Yisrael has over an item of Terumah to the ownership that a Kohen has over an item of Terumah. A Kohen, who owns the actual Terumah, can certainly use the entire amount for his own purposes, as it all belongs to him. Consequently, if a Yisrael's ownership is compared to that of a Kohen, that means that the rights he has of Tovas Hana'ah gives him the value of the entire Terumah, the same value that the Kohen has when he owns the Terumah.

Therefore, asserts the Ritva, one who steals Tevel from a Yisrael must pay the Yisrael the full value of the Terumah (the same amount that it is worth to a Kohen).

(b) Other Rishonim dispute the Ritva's assertion. The RAMBAN and RASHBA (and the first opinion quoted by the Ritva) maintain that the value of Tovas Hana'ah is merely the value of the rights to give the Matanos to whomever he wants, and it is not the value of the Matanos themselves. Hence, when the Gemara says that the thief must remunerate the value of the Terumah that was in the Tevel that he stole, it does not mean that he must pay back the full value of the Terumah (the amount that it is worth to a Kohen), but rather he must pay back the value of the Tovas Hana'ah of the Terumah (which is substantially less than the Terumah's actual value).

(The TOSFOS RID agrees that the value of the Tovas Hana'ah is not the same as the value of the Matanos Kehunah themselves. However, he agrees with the Ritva, albeit for a different reason (see there), that the thief must pay back the full value of the Terumah to the Yisrael.)


OPINIONS: The Gemara says that when a man is Mekadesh a woman by giving to her Mei Chatas or Efer Parah, the Kidushin is valid. The Rishonim dispute how to explain the case of Kidushin performed with Mei Chatas and with Efer Parah, according to the Gemara's conclusion.

(a) RASHI seems to explain that the man is being Mekadesh the woman with the money that she owes him for his labor. The Mishnah is referring to a case in which the woman was Temei'ah and needed Mei Chatas in order to become Tahor, and the man purchased it for her. Since he is allowed to take money for his services, the woman owes him that amount and with that money she becomes Mekudeshes.

(b) The RASHBA disagrees with Rashi for two reasons. First, Rashi's case seems to be a case of "Mekadesh b'Milvah," wherein the man forgives a debt that the woman owes him and says that she should be Mekudeshes to him with the debt. The Gemara (6b, 47a) says that such a Kidushin is not valid. In order for this case not to be a case of "Mekadesh b'Milvah," Rashi would have to hold "Sechirus Einah Mishtalemes Ela ba'Sof" -- the money owed for labor rendered becomes a debt only after the conclusion of the work (and thus the woman does not really owe any money to the man at the time he is Mekadesh her). This, however, is the subject of dispute (see earlier, 47b).

Second, the Mishnah says, "One who is Mekadesh with Mei Chatas or with Efer Parah...," implying that the actual item (and not the fee for services rendered to obtain the item) is being used to be Mekadesh the woman.

Therefore, the Rashba explains that since one can use the Mei Chatas to earn money (by delivering the Mei Chatas, "Hava'ah," for the service of Haza'ah), it has monetary worth in essence. When the man gives it to the woman, it is considered as though he is giving her something of monetary value, since she, too, can do the same service and receive the fee if she wishes to do so.

QUESTION: The Mishnah teaches that when one man appoints his friend to be a Shali'ach to be Mekadesh a woman for him, and the Shali'ach went and was Mekadesh her to himself, the Kidushin with the Shali'ach (and not with the sender) takes effect.

The case of the Mishnah must be where the woman was aware that the Mekadesh is the Shali'ach and not the sender, otherwise it would be a clear Kidushei Ta'us (a Kidushin accepted in error). Why, then, would we have thought that the Kidushin with the Shali'ach does not take effect? What is the Mishnah teaching us? It is obvious that the Kidushin with the Shali'ach takes effect!


(a) TOSFOS answers by explaining that the Mishnah is referring to the following scenario. When the Shali'ach came to the woman, he presented himself as a Shali'ach for the person who appointed him. Before giving her the money of Kidushin, he changed his mind and decided to be Mekadesh the woman for himself. We might have thought that when he pronounces, "Harei At Mekudesh Li" -- "You are hereby Mekudeshes to me," he is still working on behalf of the one who sent him, using the word "Li" ("to me") to refer to the one who appointed him as Shali'ach, in his capacity as a substitute for that person. Therefore, the Mishnah teaches us that we assume that he is referring to himself.

(b) The RASHBA and RITVA explain that the Shali'ach never informed the woman that he was sent by the sender (as they infer from the fact that the Gemara calls his act an act of "trickery"). If the woman would have known that someone else was interested in being Mekadesh her, perhaps she would not have agreed to the Kidushin of the Shali'ach, and his Kidushin is therefore considered a Kidushei Ta'us and does not take effect. The Mishnah teaches that we do not say that the Kidushin is a Kidushei Ta'us, but that it indeed takes effect.

(c) Alternatively, we might have thought that since the Shali'ach was acting in an improper manner, in a manner of trickery as the Gemara calls it, perhaps the Rabanan nullified the Kidushin, as we find in other cases of Kidushin made through transgressing a prohibition. Therefore, the Mishnah teaches that in this case, the Kidushin nevertheless takes effect.

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