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Kidushin, 59

KIDUSHIN 59 - dedicated by Marsha and Lee Weinblatt in memory of her mother, Esther Friedman (Esther Chaya Raizel bas Gershom Eliezer) and father, Hyman Smulevitz (Chaim Yisachar ben Yaakov).


QUESTION: The Mishnah (58b) states that when a man is Mekadesh a woman by giving her money and saying that after thirty days she will become Mekudeshes to him ("Harei At Mekudeshes Li l'Achar Sheloshim Yom"), and then another man comes in the interim and is Mekadesh her, she is Mekudeshes to the second man. The Gemara asks what is her status if no other man is Mekadesh her within thirty days. Rav and Shmuel answer that she is Mekudeshes (when thirty days pass), even though the money that the man gave her is no longer present (i.e. it has been spent).

The Gemara explains that this is not similar to a case of "Mekadesh b'Milvah," where a man lends money to a woman and then is Mekadesh her with that loan. The Gemara differentiates between a normal case of "Mekadesh b'Milvah" and the case of our Mishnah by saying that the money of a loan is given to the borrower for the borrower's personal use in the first place, while in the case of our Mishnah, the money was originally given for the purpose of Kidushin.

Why should the purpose for which the money was originally given make any difference? The reason why the Kidushin is not valid when one is Mekadesh a woman with a loan is because the money has already been given prior to the time that the Kidushin takes place, and at the time of the Kidushin nothing additional is being given to the woman (see Rashi). The same reason applies in every case in which the money was given earlier than the time the Kidushin takes effect and the money is no longer present! Even though the money being used is the money of the *debt*, and the debt *does* exist even though the actual money that was given no longer exists, that debt was already in the domain of the woman prior to the time that the Kidushin takes effect!

ANSWERS: There are two primary approaches among the Rishonim.

(a) The RAN explains that since the money was originally given for the purpose of Kidushin, at that she received the money, the woman was Makneh herself to the man. The Kidushin takes effect at the moment that the money was given originally. In contrast, when the money was given originally for the purpose of a loan, the time that the Kidushin would take effect is only later -- after the money was already given to her.

The reasoning for this difference can be explained as follows. The problem of being Mekadesh with a loan is not that the loan has no monetary value, but rather that the woman is already in possession of that value, as Rashi points out. If one wants to make Kidushin take effect with a loan, this problem prevents the Kidushin from taking effect. In contrast, when the Kidushin was already performed (because the money, initially, was given for the sake of Kidushin and the woman was Makneh herself at that time, even though the Kidushin did not take effect at that time), the debt can now be used to finish off the Kidushin (since the debt is the present form of the money that was originally given).

(b) The RASHBA has a completely different understanding of the Sugya. The Rashba explains that, indeed, if the Kidushin would be made with the debt of the money that the man gave to the woman originally (for the sake of Kidushin thirty days later), it would be no different than any other case of Mekadesh b'Milvah, and the Kidushin would not be valid. The reason the Kidushin is valid in the case of our Mishnah is because we view the Kidushin as being performed with the pleasure that the woman receives when the man tells her that she does not have to return the money to him ("Hana'as Mechilah"), rather than with the debt itself. The difference between these two ways of using a loan for Kidushin is stated clearly earlier in Kidushin (6b).

The RASHBA maintains that in our Mishnah, the money of the Kidushin is automatically viewed as such (money given for the sake of Kidushin), even without stating so specifically. The reason is simple. A regular loan is the property of the borrower, unconditionally. The only thing he must do is pay it back when the term of the loan is over. When the man gave money to the woman and said, "Harei At Mekudeshes Li l'Achar Sheloshim Yom," the money obviously was not meant to be a loan. If the woman does not wish to become Mekudeshes afterwards, she must give the money back immediately. It is hers only if she wishes to become Mekudeshes with it. Therefore, the status of the act of Nesinah, of the giving of the money, remains contingent upon whether or not she can keep it. This is not a situation of a debt, but rather a situation of deciding if it is hers or not. The case of "Mekadesh b'Milvah" is not a valid Kidushin because the money belonged to her before the Kidushin was to take effect; in contrast, giving the money to her now (i.e. letting her keep it and not have to return it) is a valid way to make Kidushin take effect == through the Hana'ah of receiving (getting to keep) the money. (Even though it is only Hana'ah and not a complete Nesinah since she already received it earlier, nevertheless the fact that she does not have to return the money is considered like Hana'as Mechilah.)


QUESTION: According to Rav Yehudah, Rav and Shmuel argue about the second case of the Mishnah. In the second case of the Mishnah (58b), a man says to a woman, "You are hereby Mekudeshes to me from now, after thirty days," and then, within those thirty days, a second man comes and is Mekudeshes the woman. The Mishnah states that "she is Mekudeshes and she is not Mekudeshes." Rav explains that her status is in doubt forever, and thus she needs a Get from both men. Shmuel explains that her status is in doubt only until thirty days have passed. When thirty days have passed, she becomes Mekudeshes to the first man retroactively (if he did not die or retract his intent to marry her), and the Kidushin of the second man is meaningless.

The Gemara explains that Rav and Shmuel argue how to understand the words that the man said when he was Mekadesh the woman. Rav maintains that there is a doubt what the man meant to say when he added the words "after thirty days." Perhaps he meant to be Mekadesh the woman from this moment, but on condition that he not retract his intent for the next thirty days. If that was his intention, then when thirty days pass, she becomes married to him retroactively, and the Kidushin of the second man is meaningless. On the other hand, perhaps the man meant to retract his statement of "me'Achshav" -- "from now," and replace it with "l'Achar Sheloshim Yom" -- "after thirty days," so that the Kidushin would take effect only when thirty days have passed, in which case she would be Mekudeshes to the second man who gave her Kidushin within those thirty days.

There is a difference of opinion among the Rishonim regarding exactly what condition the man meant by the words "me'Achshav ul'Achar Sheloshim Yom."

RASHI (DH Mesafka Lei) explains this phrase to mean that "you will become Mekudeshes to me from right now (me'Achshav), if I do not change my mind within the next thirty days," the condition being his change of mind.

The RAMBAN explains that the man is saying that "you will become Mekudeshes to me from right now (me'Achshav), if we both live another thirty days." The condition is that the Kidushin will take effect only if neither of them dies between now and thirty days.

In explaining Shmuel's opinion, Rashi (DH u'Shmuel Amar) says that the doubt about her status only exists until the end of the thirty-day period, the doubt being that "perhaps the first man will die." Rashi states clearly that if the first Mekadesh dies within the thirty-day period, his Kidushin would not take effect. This seems to contradict Rashi's explanation of the condition of "me'Achshav ul'Achar Sheloshim Yom," while it is consistent with the Ramban's explanation! According to the Ramban, the condition requires both the man and the woman to be alive at the end of thirty days, and the death of either of them will invalidate the Kidushin. According to Rashi, though, the Kidushin depends on whether or not the Mekadesh changes his mind. If his death occurs -- but he did not change his mind -- within the thirty days, why should the Kidushin not take effect (retroactively)? (Consequently, the woman should be retroactively married to the first man at the time that the second man was Mekadesh her, and thus the second man's Kidushin is meaningless, *even if the first man dies within thirty days*!) (See AVNEI MILU'IM 40:7.)

ANSWER: The AYALES HA'SHACHAR cites the explanation of the RASHBA in order to answer this question. The Rashba, when explaining the view of Rashi, writes that when the first man says "You are Mekudeshes to me *me'Achshav ul'Achar Sheloshim Yom*," he is making the Kidushin dependent upon the existence of his *ability* to change his mind within thirty days. (That is, it is as if he is saying, "You will be Mekudeshes to me from now, if for the next thirty days I have the ability to change my mind but I do not change my mind.") It does not depend on the change of mind per se, but rather on the man's ability and power to change his mind if he wants. Accordingly, when his death occurs within thirty days, even through no outright change of mind was made, the *possibility* for him to change his mind throughout the entire thirty-day period no longer exists, and therefore his condition is not considered to have been fulfilled and the Kidushin does not take effect. (See alternative approach in AVNEI MILU'IM ibid.)

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