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Kidushin, 4

KIDUSHIN 2-5 - sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.


QUESTIONS: The Gemara cites two sources for Kidushei Kesef: "v'Yatz'ah Chinam Ein Kasef" (Shemos 21:11) -- the status of the Jewish maidservant changes (i.e. she goes free) without any money being paid to her master, which implies that there is someone else (a normal woman who is being married off) whose status changes *with* money being paid to her master (i.e. her father); and "Ki Yikach Ish Ishah" (Devarim 24:1), the word "Yikach" referring to a monetary transaction (as in Bereishis 23:13).

The Gemara explains that both of these sources are necessary. Had the Torah written only the verse "v'Yatz'ah Chinam" and not "Ki Yikach," we might have thought that if the *woman* gives money to the man to be Mekadesh *him*, the Kidushin takes effect. Therefore, we need the verse "Ki Yikach" to teach that the man must be the initiating party; he must give money to the woman to "take" her, and not the other way around.

RASHI (DH Heicha d'Yahavah Ihi) explains that without the verse of "Ki Yikach" we might have thought that the woman could give the money to the husband and say to him, "Hiskadesh Li" -- "Be Mekudash to me."

There are a number of questions on this explanation of Rashi.

(a) TOSFOS (DH Heicha) asks that the husband cannot become Mekudash to the woman, so to speak, because -- as the Gemara earlier (2b) explains -- the word "Mekudeshes" means prohibited to the entire world like Hekdesh. The husband, though, cannot become prohibited to all other women in the world through Kidushin, so how can she say to the man, "Harei Atah Mekudash Li?"

(b) The Gemara (4a) explains that we learn from the verse, "v'Yatz'ah Chinam Ein Kasef," that when a Jewish maidservant goes free with Simanim (the appearance of signs of maturity), she does not pay her master for her freedom, but when a daughter leaves the domain of her father, her father (who is to his daughter like the master is to a maidservant) does receive money. Hence, it should be clear from "v'Yatz'ah Chinam" that the money is given by the man to the woman (or to her father) and it is not given by the woman to the man! (TOSFOS)

(a) TOSFOS (DH Heicha) explains that the Gemara is not to be understood literally. The Gemara does not mean that we might have thought that the woman could give money to the man for Kidushin. Rather, it means that we might have thought that the woman can tell the man that she is making Kidushin. The wording that she may use, Tosfos explains, is not "Harei Atah Mekudash Li," but "Harei Ani Mekudeshes Lecha" -- "I am Mekudeshes to you" (like the wording quoted by the Beraisa on 5b), because she becomes Asurah to the rest of the world.

(b) Rashi, however, explains that the Gemara thought that the woman could actually give the husband money. Perhaps we cannot prove from "v'Yatz'ah Chinam" that the *only* way to make Kidushin is for the husband to give money to the woman or to her father; all we see is that *one* way to make Kidushin is for the husband to give money to the woman or to her father. For example, it is clear that a person may be Mekadesh a Ketanah with Kidushei Shtar without giving the father anything, even though the verse says that the father is to receive the money; the verse refers only to when money is used to be Mekadesh her. Why, though, does Rashi say that the woman tells the man that "you are Mekudash to me?"

Although Tosfos quotes Rashi this way, Rashi does not use that exact phrase ("Harei Atah Mekudash Li"). Rather, Rashi writes that she says, "Hiskadesh Li," which means "become Mekudash to me." It is possible that the word "Hiskadesh" in Rashi needs to be vowelized differently and read instead as a question that the woman *asks* the husband: "Ha'tekadesh Li?" -- "Will you be Mekadesh me?"

Why does Rashi use the question form, and not the statement form that Tosfos uses ("Harei Ani Mekudeshes Lecha" -- "I am hereby Mekudeshes to you")?

The reason for this may be based on what we wrote earlier (Insights 2:2) to explain why, when using Kidushei Bi'ah to make the Kidushin, the husband must ask the woman to become Mekudeshes to him with Bi'ah, rather than making a statement that she is Mekudeshes to him with Bi'ah. We explained that the statement form can only create Kidushin when the inaction of the other party proves the acceptance of the Kidushin. When the husband gives the wife money or a Shtar and tells her "Harei At Mekudeshes Li," her inaction (holding the Shtar, or keeping the money) proves that she accepts it as Kidushin, because she realizes that if the Kidushin is valid then she will immediately become Asur to marry anyone else. Since accepting the Kidushin has an immediate effect on her, she would have to immediate protest it if she did not want to accept it.

For the husband, on the other hand, there is no immediate effect; even if the Kidushin is valid, he may marry other wives (the obligations of "She'er, Kesus, and Onah" of Ishus do not have an immediate effect upon him, and nor are they directly implied by the word "Mekudeshes," which means Asur to the world like Hekdesh). Therefore, when the woman tells the man, "Harei Ani Mekudeshes Lecha," he does not feel it necessary to protest the Kidushin immediately, and his inaction does not prove that he indeed accepts the Kidushin. The only way to be sure that he is accepting the Kidushin is if he says so explicitly. Therefore, Rashi explains that the case that the verse is excluding is when the woman asks the man, "Do you want to be Mekadesh me," and he answers "yes." The Kidushin would have been valid if not for the verse of "Ki Yikach."

If this is correct, then Rashi and Tosfos might be following their respective opinions elsewhere. TOSFOS (3b, DH v'Chi Teima) writes that before we learned the verse "v'Yatz'ah Chinam," the Gemara thought that a Na'arah could either be Mekadesh herself or her father could be Mekadesh her. When her father is Mekadesh her, he keeps the money, and when she is Mekadesh herself, she keeps the money. The source the Gemara cites to prove that this is not true is "v'Yatz'ah Chinam," which teaches that the father *always* receives the money of Kidushei Kesef for a Na'arah (even when she marries herself off, according to those who permit a Na'arah to do so; see Kidushin 43b). According to Tosfos, "v'Yatz'ah Chinam" does not leave room for the possibility that the daughter should give money to the husband, since the father must always receive the money when performing Kidushei Kesef. Therefore, he explains that our Gemara means that we would have thought that even though the husband gives the money to the wife, she can be the one to say, "I am Mekudeshes to you." Since the main point of the Gemara is that she should perform the speaking, and not the action of giving, Tosfos needs to explain that she simply says "Harei Ani Mekudeshes Lecha" as a statement, because if she would ask him, "Do you want to be Mekadesh me," and he would reply "yes," then his positive reply would satisfy the requirement of "Ki Yikach." (According to Tosfos, the verse teaches us the logic that we have proposed according to Rashi. When the woman makes a statement that she is Mekudeshes and the husband does not react, it does not show his agreement to the Kidushin.)

In contrast, RASHI (3b, DH v'Eima Hani Mili) explains that without "v'Yatz'ah Chinam" the Gemara thought that *only* a Na'arah should be able to accept her Kidushei Kesef and *not* the father. "V'Yatz'ah Chinam" teaches that the father can also accept the Kidushei Kesef. Accordingly, "v'Yatz'ah Chinam" does not prove that the father *always* receives the Kesef of Kidushin of his daughter, which is why our Gemara tells us that without "Ki Yikach" we would have thought that the woman can also give the man Kidushei Kesef. The main Chidush of the Gemara is that the husband must do the giving and not the wife. The Gemara is not emphasizing who is supposed to do the speaking. That is why Rashi explains that the word "v'Kidashto" means that she simply asked him if he wants to be Mekadesh her, and he consented. The verse is teaching that such a Kidushin is not valid because, even though the husband has expressed his consent, that is not enough -- he must also be the one who gives the money.

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