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Kidushin, 50

KIDUSHIN 49-50 - 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.


QUESTION: The Gemara searches for a source for Rava's ruling that "Devarim she'b'Lev Einam Devarim" -- intentions in a person's heart (that he has not expressed verbally) are not binding.

The Gemara cites a Mishnah that teaches that when a person makes a Neder to bring a Korban and he does not bring it, Beis Din "forces him until he says, 'I want to bring it!'" Even though in his heart he does not want to bring the Korban, his verbal statement is considered binding and not what is in his heart, and thus we see that "Devarim she'b'Lev Einam Devarim." The Gemara refutes this proof and says that in this case, we can assume that even in his heart he wants to bring the Korban, because everyone wants Kaparah, atonement, and the Korban will achieve Kaparah for him.

TOSFOS (49b, DH Devarim) cites a number of proofs from various sources in the Gemara that there are times that it is evident to all ("Anan Sehadi") what the intent of a person is, and in those cases *no* verbal expression of the person's intent is necessary. Accordingly, when the Gemara here asks that "in his heart he does not want it" (i.e. to bring the Korban), it is saying that it is evident to all that the Korban is being brought against his will, and thus even if we hold "Devarim she'b'Lev *Einam* Devarim," we should consider it as evident to all ("Anan Sehadi") what his intentions are in this case and the Korban should *not* be valid!

ANSWER: The TOSFOS HA'ROSH explains that the way the mechanism of "Anan Sehadi" works is as follows. Since the person's intentions are evident, we consider it as if he actually verbalized his intentions. In the case of our Gemara, though, the "Anan Sehadi" cannot work in that manner. Since the person made a verbal statement that he is bringing the Korban willingly, his clear verbal statement stands in direct conflict with what we assume to be his intentions, and thus we cannot view his intentions as having actually be spoken. We may accept only that which he actual stated explicitly. Hence, we are faced with the dilemma of an "Anan Sehadi" (we know what his intentions were) versus what he said explicitly. In such a situation the "Anan Sehadi" does not have the power to override an explicit statement from one's mouth.

The Beraisa says that Beis Din may force a man to consent to give a Get to his wife or a Shtar Shichrur to his Eved. The Gemara attempts to prove from the Beraisa that "Devarim she'b'Lev" are *not* "Devarim," and that is why the man's intention in his heart is meaningless. The Gemara refutes this proof by saying that this case is different, because it is a "Mitzvah to listen to the words of the Chachamim."

The RAMBAM (Hilchos Gerushin 2:20) has a unique explanation of this Gemara. His explanation is based on a profound understanding of the nature of the Jew.

The Gemara initially views the man as being coerced by Beis Din into doing something that he does not want to do. When the Gemara then says, "It is a Mitzvah to listen to the words of the Chachamim," it does not mean merely that a person will change his mind as a result of judiciary coercion (which seems to be the explanation of RASHI). Rather, the Gemara means to change our understanding of who is really forcing the man to act against his will.

The Rambam maintains that every Jew, in essence, has a natural desire to do what is right and what is the will of Hashem. If we find a Jew who is not acting properly, it is because he is being coerced by external forces (namely, the Yetzer ha'Ra) to act contrary to his natural tendency. When Beis Din involves itself to make sure that a person fulfills Mitzvos in the proper manner, they are not forcing him to act against his will. Rather, on the contrary, they are freeing him from the influence of the Yetzer ha'Ra which is impelling him to act against what he really would like to do -- which is to fulfill Hashem's will.


QUESTION: Rav Papa rules that in a place where the common practice is to be Mekadesh a woman and then send "Sivlonos" gifts to her, in a case where a man sent gifts to a woman and we are not sure whether or not he was Mekadesh her, we must be concerned that the man send these gifts to the woman because he was Mekadesh her. The Gemara asks that this is obvious, and it concludes that Rav Papa's ruling is necessary in a place where there is a Rov (majority) of people who are Mekadesh first and then send Sivlonos, and a Mi'ut (minority) of people who send Sivlonos first. Rav Papa is teaching that we do not have to take the Mi'ut into consideration.

Throughout all of Shas, we find that the principle of "Rov" is decisive in resolving doubts, both when it resolves a doubt stringently, and when it resolves a doubt leniently. Here, the Rov tells us that the Sivlonos were sent for the sake of Kidushin, and the Mi'ut is that they were sent merely as a gift. Why should we be concerned for the Mi'ut at all, especially in this case where the Mi'ut is a *leniency* (in that we do not require the woman to receive a Get before we permit her to marry someone else)?


(a) The TOSFOS HA'ROSH explains that since the man did not make any mention of Kidushin when he sent the Sivlonos, we should assume that the Sivlonos were not meant to be for Kidushin, but were just a gift. Since the Mi'ut supports this logic, then we may follow this logic even when it runs counter to a Rov.

(b) The RITVA has a different Girsa in the text of the Gemara (apparently due to the question above). According to the Ritva, the Gemara is discussing a place where the majority of men *send Sivlonos first* and then perform Kidushin, and the Mi'ut of men perform Kidushin and then send Sivlonos. We might have thought that we do not take the Mi'ut into consideration, and therefore Rav Papa must teach that we *do* take the Mi'ut into consideration; even though only a Mi'ut of men perform Kidushin first and then send Sivlonos, we still must be concerned that Kidushin took place.

The Ritva then asks why, in fact, Rav Papa rules that we take into consideration the Mi'ut, when normally we are not concerned for a Mi'ut (even l'Chumra).

He answers by differentiating between a "Rov b'Metzi'us" and a "Rov b'Minhag." A "Rov b'Metzi'us" (a majority based on reality) tells us that a certain event likely occurred, because that is what usually, naturally occurs (such as the Rov that most animals are not Tereifos). A "Rov b'Minhag" (a majority based on practice) tells us what most people *do*, how most people act.

When the question of what occurred involves a "Rov b'Minhag," since the event in question was subject to a person's conduct we must be concerned for the Mi'ut (and be concerned that Kidushin took place), since a person might choose not to act like most other people and to do whatever he wishes. (A person's conduct, how he chooses to act, is not subject to what usually, naturally occurs.)

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