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Kidushin 58

KIDUSHIN 58 (13 Tamuz) - Dedicated by Chaim Ozer & Rena Shulman of Teaneck, New Jersey, in memory of his grandmother, Rebbetzin Chiena Kossowsky Z"L, an extraordinary Tzadekes and Melumedes, who passed away on 13 Tamuz 5755 on her 82nd birthday.



(a) Rebbi Shimon in a Beraisa validates Kidushin that were performed with Petter Chamor, Basar be'Chalav and Chulin she'Nishchatu ba'Azarah. The Chachamim - render it invalid.

(b) Rebbi Shimon's reason in the case of ...

1. ... Petter Chamor and Basar be'Chalav is - because he holds that both are only Asur be'Hana'ah mi'de'Rabbanan, as we learned above (see Mesores ha'Shas on the previous Amud)
2. ... Chulin she'Nishchatu ba'Azarah is - because he disagrees with the various D'rashos that we just cited to prove that it is d'Oraysa. According to him, it is Asur mi'de'Rabbanan.
(c) The reason for the decree is - in case people (believing the Chulin to be Kodshim), will take their cue from there to permit deriving benefit from Kodshim before the blood has been sprinkled.
(a) Mar Yehudah had a problem with the above ruling of Rebbi Shimon from another statement of Rebbi Shimon, who said in a Beraisa - that a Beheimah of Chulin or a Chayah that were Shechted in the Azarah must be burned.

(b) Mar Yehudah has ...

1. ... no problem with the case of Beheimah - because, since they are of the same species as Kodshim, it is understandable for the Chachamim to decree a Chulin animal on account of one of Kodshim (so that people should not think that Kodshim that became Pasul must be buried, as Chulin she'Nishchatu ba'Azarah ought to be).
2. ... a problem with the case of a Chayah - because, since one cannot possibly confuse it with a Beheimah, added to the fact that the Isur by Chayah is purely mi'de'Rabbanan, there would be no reason to issue such a decree.
(c) If Chulin she'Nishchatu ba'Azarah were d'Oraysa, he would have no problem - because since the Isur to Shecht in the Azarah would be d'Oraysa, it would be feasible for the Chachamim to give a Chayah the same Din as a Beheimah, so as not to make a distinction between them (Lo P'lug).
(a) Rabah was not impressed with Mar Yehudah's Kashya. The title that he conferred upon him was - that of 'Palga' (meaning argumentative), because he was accustomed to quarrel with the Rabbanan (more for the sake of differing with their opinion, it seems, than in order to search for the truth).

(b) Rabah establishes the first ruling of Rebbi Shimon, validating a Kidushin performed with Chulin she'Nishchatu ba'Azarah - when the animal was found to be T'reifah, and Rebbi Shimon follows his ruling elsewhere, that a Shechitah which does not permit the animal to be eaten, is not considered a Shechitah.

(c) That being the case - the Chulin animal that was 'Shechted' in the Azarah does not fall under the category of Chulin she'Nishchatu ba'Azarah, and is Mutar be'Hana'ah.

(d) Had the Shechitah been Kasher, says Rabah - Rebbi Shimon would have conceded that the animal would be Asur be'Hana'ah, because Chulin she'Nishchatu ba'Azarah is d'Oraysa.

(a) We learn from the Pasuk "Vehayisa Cherem Kamohu" - that the Isur Hana'ah of Avodas-Kochavim is transferred to the money that one pays for it.

(b) We can extrapolate from there that - if one sells other Isurei Hana'ah - the Isur is not transferred to the money, which explains the Seifa of our Mishnah 'Machrah ve'Kidesh bi'Demeihen, Mekudeshes.

(c) We cannot learn from a 'Mah Matzinu' from Avodas Kochavim, that the Isur is transferred on to the money - because the same applies to Shevi'is fruit, making it 'Sh'nei Kesuvim ha'Ba'im ke'Echad', and we rule 'Ein Melamdin'.

(d) We learn from ...

1. ... the Pasuk "Yovel Hi Kodesh Tih'yeh Lachem" - that the Isur of Shevi'is fruit, like that of Avodas Kochavim, is transferred to the money.
2. ... the word "Tih'yeh" - that the actual fruit remains forbidden (in which case, the Isur extends, rather than is transferred, to the money).
(a) If one purchased ...
1. ... meat with Sh'mitah fruit - both have Kedushas Shevi'is.
2. ... fish with the meat, wine with the fish, and oil with the wine - then the fruit and the oil have Kedushas Shevi'is, but not the fish, the meat and the wine.
(b) The significance of the fact that we now have two cases where the Isur is transferred to (or extends to) the money is that we now have 'Sh'nei Kesuvim ha'Ba'im ke'Echad' - though not everyone holds 'Ein Melamdin'.

(c) According to the latter opinion, we learn from the Pasuk "Ki Cherem *Hu*" and the Pasuk "Yovel *Hi*" (by way of a 'Miy'ut')- that only by Yovel and Shevi'is does the Isur transfer to the money, but not by other Isurei Hana'ah (though it is unclear why one 'Miy'ut' will not suffice).

(a) Our Mishnah say about someone who betroths a woman with Terumos, Ma'asros, Matanos, Mei Chatas and Eifer Parah - the Kidushin is valid.

(b) The Tana adds 'va'Afilu Yisrael'. According to the plain meaning of the words, this means - that the Mekadesh is betrothing the woman with the 'Tovas Hana'ah' (the right to give it to whichever Kohen or Levi ... he wishes, and that is what he now transfers to her).

(c) According to this interpretation, we can extrapolate - that 'Tovas Hana'ah Mamon'.

(d) Rebbi Aba cited our Mishnah to query a statement of Ula - who said 'Tovas Hana'ah Einah Mamon'.

(a) To answer the Kashya Ula establishes our Mishnah - when the Mekadesh inherited Tevel from his maternal grandfather (who was a Kohen, even though he is a Yisrael).

(b) The Tana is coming to teach us - that 'Matanos she'Lo Hurmu k'Mi she'Hurmu Damyan' (i.e. although the Tevel contained the undesignated Terumos, they are considered as if they had been designated, in which case the original owner acquired them, and all they now require is designation and separation.

(c) Ula did not establish the Mishnah when the Mekadesh inherited *Terumah* from his maternal grandfather - because then there would be no Chidush.

(d) When Rav Huna attempted to resolve Rav Chiya bar Avin's She'eilah about whether Tovas Hana'ah is Mamon or not, from our Mishnah, the latter pointed to Ula's interpretation of the Mishnah. When Rav Huna retorted ...

1. ... "*Hotza'ah* At' - he meant that Rav Asi from *Hutzal* conformed with his opinion. However ...
2. ... Rav Chiya bar Avin understood Rav Huna's remark derogatorily (with the result that he felt embarrassed). He thought he meant - that he was removed from the Sugya (i.e. that he did not understand it properly), or that he 'cuts canes in the marsh' (an expression implying that one is insignificant [from the word 'Hutza' meaning a weak fence]).



(a) According to Rebbi in a Beraisa, someone who steals his friend's Tevel and eats it, is obligated to pay for everything he ate - for the Chulin in full and for the Ma'asros according to the Tovas Hana'ah that his friend had in them.

(b) Rebbi Yossi b'Rebbi Yehudah says - that he only needs to pay for the Chulin that he ate, but not for the Ma'asros.

(c) We refute the suggestion that Rebbi obligates him to pay for the Ma'asros too, because he holds 'Tovas Hana'ah Mamon', whereas Rebbi Yossi b'Rebbi Yehudah holds 'Tovas Hana'ah Eino Mamon', establishing the basis of their Machlokes as - whether 'Matanos she'Lo Hurmu ke'Hurmu Damyan' (Rebbi Yossi be'Rebbi Yehudah), or not (Rebbi, in which case all the Ma'asros are considered like Chulin), and the Tana speaks when the owner had inherited Tevel from his maternal grandfather, as we explained earlier. Note, that the grandfather Kohen acquired Ma'aser Rishon, too, based on the penalty of Ezra, stripping the Levi'im of their rights to claim it.

(d) And both opinions will hold 'Tovas Hana'ah Eino Mamon' (like Ula).

(a) Alternatively, both Tana'im hold ' ...K'mi she'Hurmu Damyan' and 'Tovas Hana'ah Eino Mamon'. The Tana however, speaks about crops that grew in the owner's field, and they argue over Shmuel, who says - that 'one kernel exempts the pile' (i.e. min ha'Torah, one is not obligated to give more than one grain for Terumah).

(b) Rebbi holds like Shmuel. Consequently - the owner can claim the full value of his stolen Tevel (minus one grain); whereas, Rebbi Yossi b'Rebbi Yehudah does not. Consequently, the thief is only obligated to pay for the Chulin, but not for the Terumah.

(c) Rebbi only argues with Rebbi Yossi b'Rebbi Yehudah regarding Terumos - but not regarding Ma'asros (which the owner would have had to give to the Levi (or to the Kohen, as we explained earlier) in full.

(d) We could have established their Machlokes like in the previous case (when the owner inherited the Tevel from his maternal grandfather Kohen; in which case both Tana'im would hold ' ... K'mi she'Lo Hurmu Damyan' and 'Tovas Hana'ah Mamon, and they argue over Shmuel's Din, We did not so however, because it would mean that the Tana of our Mishnah (who holds 'Mekudeshes', either because 'Tovas Hana'ah Mamon' or because ' Matanos ... K'mi she'Hurmu Damyan') will hold like neither opinion.

(a) Finally, we propose that neither Tana holds like Shmuel, or that both hold like him. Even if Rebbi *does not hold like Shmuel*, he might nevertheless obligate the thief to pay in full - as a penalty for stealing (because otherwise the money, which has no claimants, will simply remain unclaimed).

(b) And Rebbi Yossi b'Rebbi Yehudah might exempt him from paying in full, even if he *does* - because he penalizes the owner for leaving his crops un'Ma'asered.

(a) The Mishnah in Bechoros rules that ...
1. ... if a Dayan takes money to judge - his judgments are invalid.
2. ... if witnesses take money to testify - their testimony is invalid.
3. ... if a Kohen takes money to sprinkle the ashes of the Parah Adumah - the ashes are considered like ashes from an oven.
4. ... if a Kohen takes money to mix the Mei Parah - the water is like water from a cave.
(b) We resolve our Mishnah which rules 'ha'Mekadesh ... be'Mei Chatas u've'Eifer Parah, Mekudeshes, va'Afilu Yisrael', with the Mishnah in Bechoros - by establishing it with re. to taking money for transporting the ashes or for filling the water (which is permitted).

(c) And we substantiate this answer from the fact - that our Mishnah says 'be'Mei Chatas u've'Eifer Parah' whereas the Mishnah in Bechoros says 'Lehazos u'Lekadesh'.

***** Hadran Alach ha'Ish Mekadesh *****

***** Perek ha'Omer *****


(a) If someone asks his friend to betroth a woman on his behalf and he betroths her himself - his Kidushin is valid.

(b) If a man betroths a woman whom another man had betrothed earlier ...

1. ... for after thirty days - she will be betrothed to the second man.
2. ... from then and after thirty days - she is Safek Mekudeshes to both.
(c) In a case where a second man did not betroth her, where in the Reisha, she is permitted to eat Terumah during those thirty days (see Tosfos Yom-Tov), in the Seifa she is not, assuming she is ...
1. ... a bas Yisrael le'Kohen - because the Kidushin may not be valid.
2. ... a bas Kohen le'Yisrael - in case it is.
(a) The Beraisa says that in the case in the Reisha of our Mishnah, where the man betrothed the woman whom his friend had asked him to betroth on his behalf - that, even though the Kidushin is valid, he is nevertheless considered to be a trickster.

(b) We infer this from the Lashon of the Mishnah '*ve'Halach* ve'Kidshah le'Atzmo ... '.

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