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Kidushin 43

KIDUSHIN 43 (28 Sivan) - dedicated to the memory of Hagaon Rav Yisroel Zev [ben Avrohom Tzvi] Gustman ZT'L (author of "Kuntresei Shi'urim" and renowned Dayan of pre-war Vilna) on his Yahrzeit, by a student who merited to study under him.



(a) According to Beis Shamai, who learns from "Al Kol D'var Pesha" that one is Chayav Shelichus Yad even on the thought alone, there is no Shelichus by Shelichus Yad. Nevertheless, he cannot learn from Me'ilah that 'Yesh Sheli'ach li'D'var Aveirah' - because Me'ilah and Tevichah and Mechirah (the Shechting or selling of a stolen animal, for which one pays four or five times, and by which there is no Shelichus [as we shall now see]) are 'Sh'nei Kesuvim ha'Ba'im ke'Echad'.

(b) The Tana Kama of the Beraisa learns Shelichus by Tevichah and Mechirah from the Pasuk "u'Tevacho O Mecharo" - by means of a Hekesh (the comparison of Tevichah to Mechirah, since the latter can only be performed through a third person, the former can be performed through a third person, too).

(c) Tana de'Bei Rebbi Yishmael learns the same thing from the word "O", and de'Bei Chizkiyah, from "Tachas ha'Shor, Tachas ha'Seh" - since one of them is superfluous, and we therefore use it to include a Sheli'ach.

(a) We learn from the Pasuk "Dam Yechashev la'Ish ha'Hu Dam Shafach" - "Hu" 've'Lo Shelucho' (that 'Ein Sheli'ach li'D'var Aveirah') by Shechutei Chutz.

(b) We cannot then extend it to the entire Torah with a 'Mah Matzinu' from Shechutei Chutz - because against that, we have the two Pesukim (Me'ilah and Shelichus Yad according to Beis Hillel and Me'ilah and Tevichah and Mechirah according to Beis Shamai).

(c) We finally learn 'Ein Sheli'ach li'D'var Aveirah' (according to those who hold 'Sh'nei Kesuvim ha'Ba'im ke'Echad Melamdin) - from the Pasuk there "ve'Nichras ha'Ish *ha'Hu* me'Amav", which is not needed for itself (i.e. Shechutei Chutz, since we already know that from the previous D'rashah), and which we therefore Darshen 'Im Eino Inyan' to cover the entire Torah.

(a) According to those who hold 'Sh'nei Kesuvim ha'Ba'im ke'Echad Ein Melamdin', the word "ha'Hu" is now superfluous on two occasions. One of them comes to teach us that if two people Shecht Shechutei Chutz, they are Patur from Ka'res; the other one - that "Hu" 've'Lo O'nes ve'Lo Shogeg ve'Lo Mutah' (tricked).

(b) Those who hold 'Melamdin' learn these Dinim - from the extra 'Hey' in "Ha'hu").

(c) And those who learn 'Ein Melamdin' - do not consider the extra 'Hey' as a D'rashah.

(a) The Tana Kama of the Beraisa holds that if someone murders at the instigation of someone else, then it is the Sheli'ach, and not the sender, who is Chayav. Shamai ha'Zaken quoting Chagai ha'Navi, says - that the sender is Chayav.

(b) Shamai's ...

1. ... source - is the Pasuk in Shmuel "Oso Haragta be'Cherev B'nei Amon" (where the Navi blames David for the death of Uri'ah ha'Chiti as if he had killed him using the Amonites swords).
2. ... reason, based on the previous discussion is - that he holds 'Sh'nei Kesuvim ha'Ba'im ke'Echad Melamdin', and does not Darshen the two times "ha'Hu".
(c) We refute the original alternative explanation that when Shamai says 'Chayav', he means be'Dinei Shamayim - because that will imply that according to Beis Hillel, he is not even Chayav be'Dinei Shamayim either (which, as we learned earlier, would not be correct).

(d) As an alternative, we explain 'Ela Diyna Rabah ve'Diynah Zuta Ika Beinayhu', meaning that both according to Shamai and according to the Rabbanan, the sender is punished be'Dinei Shamayim for his involvement. However - according to Shamai, he is heavily punished (as if he had actually killed him), whereas according to the Rabbanan, he is only punished lightly for causing his death.

(a) In a third alternative, Shamai may even hold 'Sh'nei Kesuvim ... Ein Melamdin'. However, the Torah clearly indicates by David ha'Melech, where it writes "Oso Haragta be'Cherev B'nei Amon", that 'Yesh Sheli'ach li'D'var Aveirah'. The Rabbanan interpret the Pasuk to mean - that just as David was not punishable for the sword of the B'nei Amon, so too, was he not punishable for the death of Uri'ah ha'Chiti.

(b) The reason for this is - because Uri'ah had contravened the laws of Kavod Malchus, and was Chayav Miysah anyway.

(c) Uri'ah ha'Chiti's sin in saying "va'Adoni Yo'av ve'Chol Avdei Adoni al P'nei ha'Sadeh Chonim" was - that he should not have referred to Yo'av as 'Adoni' in the presence of the King (see also Tosfos DH 'Mo'reid').

(d) Rava comments that, even assuming that Shamai holds 'Sh'nei Kesuvim ... Melamdim' and 'Hu, ha'Hu Lo Darish' - if someone performs incest at the behest of his friend, then he is Chayav and not his friend, because nowhere do we find that Reuven benefits, and Shimon gets punished.

(a) Rav says that a Sheli'ach can also double as a witness - irrespective of whether it is one Sheli'ach who combines with a second witness, or whether two Sheluchim double as witnesses?

(b) de'Bei Rebbi Shiloh says - that a Sheli'ach cannot double as a witness.

(c) We reject the suggestion that de'Bei Rebbi Shiloh's reason is because the Meshale'ach did not appoint the Sheli'ach as a witness - because there is no such Halachah that requires Eidim who witness a transaction such as Kidushin to be designated.

(d) The reason of ...

1. ... Rav is - because the Shelichus only serves to reinforce the witness' testimony when he later testifies.
2. ... de'Bei Rebbi Shiloh is - because the principle 'Shelucho shel Adam Kamoso' renders the Sheli'ach like the Meshale'ach himself, and a person cannot testify about himself.
(a) The Beraisa cites a case of someone who asked three people to betroth a woman on his behalf. According to Beis Shamai, one of them should perform the Shelichus. Beis Hillel say - that they are all Sheluchim, and a Sheliach cannot be a witness.

(b) We extrapolate from that, in a case where there are only two Sheluchim - even Beis Shamai will concede that neither of them can be a witness.

(c) The problem now is - that Rav holds neither like Beis Hillel nor like Beis Shamai.

(a) We conclude that Rav holds like Rebbi Nasan. According to Rebbi Nasan, Beis Shamai says 'Sheli'ach ve'Eid', meaning - that the Sheli'ach can combine with a witness (because 'Sheli'ach Na'aseh Eid').

(b) Beis Hillel say - 'Shelia'ch u'Sh'nei Eidim' (meaning that only three people can satisfy all the requirements of the Meshale'ach, but not two (because 'Ein Sheli'ach Na'aseh Eid').

(c) To avoid having to establish Rav like Beis Shamai, we therefore switch the opinions of Beis Shamai and Beis Hillel.

(d) Rav Acha the son of Rava switches the opinions of Rav and de'Bei Rebbi Shilo. The final ruling is - Sheli'ach Na'aseh Eid.




(a) Rava Amar Rav Nachman rules that if someone appoints two Sheluchim to act on his behalf, they can both double as witnesses - as regards Kidushin, Gerushin and money-matters.

(b) Having taught us this in the case of ...

1. ... Kidushin, he nevertheless needs to repeat in by Gerushin - where we might suspect that one of the witnesses wants to marry the divorcee (whereas in the case of Kidushin, they do not stand to gain anything, in which case there is no reason to suspect them).
2. ... Gerushin, he nevertheless found it necessary to repeat it by money matters - because, whereas by Gerushin, we can hardly suspect them both of planning to marry the divorcee, by money-matters it is feasible that they are in collusion with the third party, and that they intend to split the profits.
(c) Rav Nachman must hold 'ha'Malveh es Chaveiro be'Eidim, Ein Tzarich le'Por'o be'Eidim' - because otherwise, assuming that the debtor gave the money to the Sheluchim in front of witnesses, they are prejudiced, because unless they testify (and their testimony is believed) that they delivered the money to the creditor, the debtor will claim it back from them.

(d) They are then believed to say that they paid the creditor - with a 'Migu' that they could have claimed to have returned it to the debtor.

(a) Chazal instituted a Shevu'as Hesses - obligating even someone who denies the claim completely (whom the Torah absolves without having to swear).

(b) This affects our case - inasmuch as if the Sheluchim testify that they paid the creditor the money, but the creditor denies having received it, the former will now swear that they paid the money to the creditor, the creditor will swear that he did not receive it, and (assuming that both do indeed swear), the debtor will be obligated to pay the creditor (again).

(a) According to the Tana Kama of the Mishnah in Gitin, both the Na'arah ha'Me'urasah and her father have the right to accept her Gerushin from the man who betrothed her. Rebbi Yehudah says - that 'two hands cannot possess the right to acquire simultaneously'. Consequently, since the Torah handed this right to the Na'arah's father, it must have withdrawn it from her.

(b) A Na'arah or a Ketanah who is *married* is called a Yesomah be'Chayei ha'Av - and it is she who receives her Get, not her father (unless she appoints him as her Sheli'ach).

(c) The Tana of the Mishnah also forbids a man to divorce his wife if she is unable to look after her Get. Rebbi Yitzchak extrapolates this from the Pasuk "ve'Shilchah mi'Beiso" - which implies that when she is sent away, she does not return.

(d) This applies even if it is her father who receives the Get.

(a) Resh Lakish maintains that the Rabbanan and Rebbi Yehudah repeat their Machlokes (as to whether a Na'arah can receive her own Get) by Kidushin. Rebbi Yochanan says - that with re. to Kidushin, the Rabbanan concede that only her father can receive it.

(b) Initially, Rebbi Yossi b'Rebbi Chanina explains the difference, according to Rebbi Yochanan - in that the Torah places Gerushin entirely in the father's jurisdiction, because it brings her back into his domain; whereas re. Kidushin, which takes her out of her father's domain, the Torah did not confine the rights to him.

(c) The Tana says that only the father can initiate Ma'amar (the Kidushin of a Yevamah) of a Ketanah min ha'Eirusin. However - both the woman herself and the father, can initiate the Ma'amar, if she is a Na'arah.

(d) We can infer from here - that the Rabbanan did not change their opinion, even re. there where she leaves her father's domain (as Rebbi Yossi b'Rebbi Chanina suggested). Consequently, that cannot be the reason for their ruling by Kidushin.

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