THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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KIDUSHIN 51-55 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) BEING "MEKADESH" A WOMAN WITH "MA'ASER SHENI"
QUESTION: The Mishnah (52b) quotes Rebbi Meir who maintains that when a man
is Mekadesh a woman with fruits of Ma'aser Sheni, the Kidushin does not take
effect. The Gemara teaches that Rebbi Meir's source is the verse, "v'Chol
Ma'aser ha'Aretz... la'Hashem Hu" -- "and all Ma'aser from the land... shall
be for Hashem" (Vayikra 27:30).
RASHI on the Mishnah (52b, DH b'Ma'aser Sheni) explains that Rebbi Meir
maintains that Ma'aser Sheni is "Mamon Gavohah" (as the Gemara on 54b states
explicitly). This implies that Ma'aser Sheni is not the property of the
person who separated the Ma'aser, but rather it belongs completely to
Hekdesh. If the Ma'aser belongs completely to Hekdesh, then why does the
Gemara express that Ma'aser Sheni cannot be used for Kidushin as a specific
rule that is derived from the verse, "La'Hashem" -- "'La'Hashem' v'Lo
l'Kadesh Bo Ishah?" The Gemara should have said a more general,
all-encompassing rule, such as "'La'Hashem' v'Lo Mamon Hedyot," and we would
have known that it cannot be used for Kidushin since it is not considered
the property of the bearer!
ANSWER: RABEINU CHAIM HA'LEVI of Brisk (cited by the GRIZ in Zevachim 6a)
makes a similar observation in the words of the RAMBAM in reference to our
Gemara. The Rambam (Hilchos Ishus 5:4) writes that if a man "was Mekadesh a
woman with Ma'aser Sheni, whether by accident or on purpose, she is not
Mekudeshes, because he is not to use it for any of his personal purposes
until it has been redeemed, as the verse says, 'La'Hashem Hu'." The Rambam
should have said that the reason is because the Ma'aser does not belong to
him until he redeems it! The wording of the Rambam implies that there is a
specific prohibition to use Ma'aser Sheni for one's personal needs.
Rav Chaim concludes from this that, in fact, the Ma'aser Sheni belongs to
the owner, and, monetarily, it is considered his property. The verse of
"La'Hashem" merely limits the owner's ability to use it, preventing him from
using it in any way that he wants. It is only his property to perform with
it the Mitzvah of eating Ma'aser Sheni. He is restricted from doing anything
else with it.
Rav Chaim explains that the practical difference would be in a case of
Yerushah, inheritance. When a man dies with fruits of Ma'aser Sheni in his
possession, do his children inherit his Ma'aser Sheni? If it is not
considered his property at all, then his children should not inherit it. If
it is considered his property, and there are just regulations with regard to
how he can use it, then his children should inherit it.
According to Rav Chaim, the wording of our Gemara is very precise. The
exclusion learned from the verse is not an exclusion in the ownership of the
Ma'aser, but rather it is an exclusion in the types of usage that is
permitted. That is why the Gemara says that it is "La'Hashem" and not
"l'Kadesh Bo Ishah" -- it is not saying *who owns* the Ma'aser Sheni, but
rather it is teaching for what usage the owner is permitted to use it!
2) "SHEGEGAS MA'ASER" ACCORDING TO REBBI MEIR AND "SHEGEGAS HEKDESH"
ACCORDING TO REBBI YEHUDAH
OPINIONS: Rebbi Meir in the Mishnah (52b) states that when a man is Mekadesh
a woman with fruits of Ma'aser Sheni, the Kidushin does not take effect,
whether he gave her the fruits b'Shogeg (not knowing that they were fruits
of Ma'aser Sheni), or whether he gave her the fruits b'Mezid (knowing that
they were fruits of Ma'aser Sheni). Rebbi Yehudah argues and says that if he
gave her the fruits b'Shogeg, the Kidushin does not take effect, but if he
gave them b'Mezid, the Kidushin does take effect.
In the next case of the Mishnah, when a man is Mekadesh a woman with an item
of Hekdesh, Rebbi Meir rules that the Kidushin *takes effect* when he gave
her the Hekdesh *b'Mezid*, but it does *not* take effect when he gave it to
her *b'Shogeg*. The Gemara here asks what the difference is between the
respective rulings of Rebbi Meir and Rebbi Yehudah in each case, the case of
being Mekadesh with Ma'aser Sheni and the case of being Mekadesh with
Rebbi Yakov quotes Rebbi Yochanan who said that "in one case [of Shogeg],
the woman does not want it, and in the other case [of Shogeg], neither [the
man nor the woman] wants it." Rebbi Yakov says that Rebbi Yochanan's
statement can be interpreted to mean that in the case of "Shegegas Ma'aser,"
neither the man nor the woman would have wanted the Kidushin to take effect
had they known that the fruits were Ma'aser Sheni. The woman does not want
it because she does not want the hassle of bringing the fruits to
Yerushalayim, and the man does not want it because he does not want "an
accident to happen on the way," while the woman is bringing the fruits to
RASHI (DH Mishum Onsa d'Orcha) gives two explanations for why the man would
not want the Kidushin to take effect if he knew that the fruits were Ma'aser
Sheni, since he does not want "an accident to happen on the way." First,
Rashi explains that since the fruits are not worth a Perutah except within
Yerushalayim, he remains responsible for them until she arrives in
Yerushalayim. Since a woman is vulnerable to accidents, it is likely that
something will happen to the fruits and he will have to pay for them.
Second, Rashi explains that even if the man does not accept responsibility
for the fruits, he still would not want to give her Ma'aser Sheni for
Kidushin, because if she loses them or some other accident occurs, she will
be upset at him that he was Mekadesh her with something of no value.
There is a difference of opinion among the Rishonim with regard to when the
Kidushin actually takes place according to the first explanation in Rashi.
(a) TOSFOS maintains that since the money of Ma'aser Sheni only has value in
Yerushalayim, the Kidushin only takes effect once the woman reaches
Yerushalayim and can now use the money to purchase food there.
(b) The RITVA maintains that since, in Yerushalayim, the money of Ma'aser
Sheni has the value of a Shaveh Perutah, we may already judge the Ma'aser
Sheni as having that value even before entering Yerushalayim. Therefore, the
Kidushin takes effect right away.
According to these different ways of understanding Rashi's explanation, the
acceptance of responsibility (Kabalas Achrayus) of the man who is Mekadesh
the woman takes on a different meaning. According to Tosfos, Kabalas
Achrayus simply means that since the Kidushin has not yet taken effect, if
the money is lost before entering Yerushalayim, the man will have to replace
it with other money of Kidushin. If he does not replace it with other money,
then the Kidushin cannot take effect, because at the time that it should
have taken effect, there was no Kesef of Kidushin present.
According to the Ritva, in contrast, the Kabalas Achrayus refers to an added
obligation that the man accepted upon himself. He did this in order for the
woman to have peace of mind and not worry about not being able to use the
money that she is receiving for the Kidushin.