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Gitin, 43

GITIN 43 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.


QUESTION: The Gemara discusses two similar cases of partial Kidushin: a case of a man who is half-Eved and half-free who is Mekadesh a Bas Chorin (a free woman), and a case of a Ben Chorin (a free man) who is Mekadesh a woman who is a half-Shifchah and half-free. The question regarding whether such a Kidushin takes effect is the same in both cases: do we say that the Kidushin can take effect on the free part of the person even though the other part of that person is an Eved or Shifchah?

The Gemara asks whether these cases are comparable to a case of a man who says to a woman that he is Mekadesh half of her (in which case the Kidushin does not take effect), or are these cases different from that case, because in that case the man left over a part of the woman and was not Mekadesh that part, while in these cases the man was Mekadesh every part that it was possible from him to be Mekadesh?

The RAMBAM rules that the Halachah in the case of a half-Eved, half-free man who is Mekadesh a Bas ---Chorin is that it is a Safek Kidushin. However, in the case of a Ben Chorin who is Mekadesh a half-Shifchah, half-free woman, the Kidushin is completely valid!

Why does the Rambam rule differently in each case, when our Gemara addresses them as based on the same premise? (RAN in Kidushin, 3b of the pages of the Rif)

ANSWER: The AVNEI MILU'IM (44:3) proposes that there is a basic difference between the role of the man, the "Mekadesh," and the role of the woman, the "Mitkadeshes," in the Kidushin process. The role of the man is an *active* role, while the role of the woman is entirely *passive*. The actual act of Kidushin is being performed by only one party -- the man who is the Mekadesh. The woman is just a recipient of the act of Kidushin, and she is not actively involved in it.

Therefore, says the Avnei Milu'im, we can understand the difference between a half-Eved, half-free man who performs an act of Kidushin, and a half-Shifchah, half-free woman who is just the recipient of an act of Kidushin: The Rambam assumes that a Kidushin can take effect on half a person (the half that is free, and not the half that is a Shifchah). However, an act of Kidushin cannot be performed by half a person. Any act that a person done is, per force, being done by the entire person and not just half of him. Since the Kidushin is being done by one who is partly an Eved, it is therefore invalid. (A. Kroningold)

Rabah bar Rav Huna expounded the verse, "veha'Machshelah ha'Zos Tachas Yadecha" -- "...and let this ruin be under your hand" (Yeshayah 3:6), to be teaching that only through the humiliation that comes about through making mistakes in Torah does a person merit to reach great heights in Torah learning.

The AHAVAS EISAN in Berachos (28a) points out that even though our Gemara maintains that the only way to achieve the truth in Halachah is by first erring, there are some notable exceptions to this rule.

The Gemara in Sanhedrin (99a) discusses the verse, "Nefesh Amel Amlah Lo" (Mishlei 16:26), and says that when a person toils in Torah to his fullest potential, the Torah, so to speak, requests of Hashem to give over to that person the secrets of the Torah.

We find also in Shabbos (63a) that "when two Talmidei Chachamim sharpen each other in Halachah, Hashem makes them successful" in their Torah learning.

The Ahavas Eisan explains that this was the intention of Rebbi Nechunya ben ha'Kaneh in the prayer that he authored for entering the Beis ha'Midrash to learn: "... that I not stumble in a matter of Halachah and have my friends laugh at me...." Rebbi Nechunya was asking of Hashem to help him use his all of his ability in learning Torah so that he would therefore merit the special gift of being given Torah directly, without having to endure the pain of humiliation that comes from making an error before reaching the truth in Halachah. (A. Kroningold)


QUESTION: The Gemara discusses a case of a man (Reuven) who was Mekadesh the free part of a half-Shifchah, half-free woman. The woman was then given full Shichrur and became entirely free. Another man (Shimon) was then Mekadesh her.

The Gemara assumes that one of two things have to happen: either the first Kidushin is completely eliminated, or now it becomes even stronger and is considered to be completed.

Why does the Gemara not consider the seemingly more logical possibility that the woman remains as she was before she was freed entirely, and she is half-Mekudeshes?

ANSWER: RASHI explains that since the Shifchah received a full Shichrur, she is considered an entirely new person. Therefore, the old Kidushin can no longer work for her. It is as if the Kidushin was done with a different woman.

TOSFOS (DH Gamru) explains that even though the Kidushin took effect when she was half-free, since, at the time of the Kidushin, there was no "Shiyur," no part of her that was left without Kidushin that could have received Kidushin, nevertheless after her Shichrur the situation changes. Now that her other half is also free, we view the Kidushin as having a "Shiyur" and lacking, since it is now possible for all of her to receive Kidushin. Therefore, one of two things must happen: either the Kidushin becomes entirely invalid, or it now spreads to all of her. (A. Kroningold)

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