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Kidushin 64

KIDUSHIN 61-65 - Ari Kornfeld has generously sponsored the Dafyomi publications for these Dafim for the benefit of Klal Yisrael.



(a) If a man declares 'Kidashti es Biti ha'Ketanah, Kidashtihah ve'Gerashtihah', he is believed - as long as she is still a Ketanah (incorporating a Na'arah), but not if she is a Gedolah (a Bogeres).

(b) The Din in the Seifa, where the father says 'Nishbis u'Tehorah Hi', will differ - inasmuch as he is not believed, even if his daughter is still a Ketanah.

(c) The Halachic ramifications whether we believe the father or not are - that if we do, she will become forbidden to marry a Kohen (either because she is divorced [in the Reisha] or because of Safek Zonah [in the Seifa - in which case she is also forbidden to eat Terumah]).

(d) The reason that we initially give for this distinction is - that as long as she is still a Ketanah, the father still has jurisdiction over her (it is be'Yado) to marry her off and to receive her Get, so why should he lie ('Mah Lo le'Shaker'); whereas once she has become a Gedolah, she leaves his jurisdiction (in the Reisha, and in the Seifa), the father never has the right to hand her over to a Nochri, even when she is a Ketanah.

(a) We just explained that in the Reisha, once the daughter has become a Gedolah, the father is no longer believed to say that he betrothed her and divorced her when she was a Ketanah, because it is no longer be'Yado. He is not believed in the Seifa on the grounds that he could to marry her ...
1. ... to a Chalal - because our Tana holds like Rebbi Dustai ben Yehudah, who considers a bas Yisrael a Mikveh Taharah for Chalalim (and a child born to a bas Yisrael from a Chalal is Kasher).
2. ... to a Mamzer - because he also holds like Rebbi Akiva, who invalidates the Kidushin of all Chayvei La'avin (so it is not be'Yado).
3. ... to marry her off and receive her Get (which is how we currently explain the Reisha anyway) - because that would only forbid her to marry a Kohen, but not to eat Terumah (as his current claim does).
(b) Rebbi Sima'i learns from the Pasuk "Lo Yikach ... ve'Lo Yechalel" - that the child from an Almanah le'Kohen Gadol (and from other Chayvei La'avin of Kehunah) is a Chalal, but not a Mamzer, in which case, the Kidushin will take effect even according to Rebbi Akiva.

(c) Nevertheless (in spite of Rebbi Sima'i), the Tana of our Mishnah, does not believe the father (on the grounds that, assuming that she is an Almanah, he could have married her off to a Kohen Gadol [or a Gerushah, to a Kohen Hedyot]) since he holds like Rebbi Yeshevav - who (explaining Rebbi Akiva) says that the product of *every* forbidden Bi'ah is a Mamzer.

(d) Rebbi Yeshevav himself disagrees with this - because, he argues, Rebbi Akiva declares too many Jews Mamzerim.

(a) This answer will only work however, on the assumption that Rebbi Yeshevav is expressing his own opinion - in which case, he is including all cases in the category of Mamzerus, even Mitzvos Asei (such as Mitzri and Edomi), but not if he is coming merely to counter Rebbi Sima'i - in which case he will only be referring to Isurei La'avin, but not to Isurei Asei.

(b) The problem will then be - that the father will still have rights over his daughter to invalidate her from Kehunah, by marrying her to a Mitzri or an Edomi, so why is he not believed in the Seifa?

(c) In any event, Rav Ashi concludes, the very concept of 'be'Yado' was really a misconception. He refutes ...

1. ... first be'Yado le'Garshah' - on the grounds that the father has no jurisdiction whatsoever, over the divorce.
2. ... and then even 'be'Yado le'Kadshah - because even there (where the Torah has conferred upon him the rights to marry her off), he is very much dependent on the consent of the Chasan, for the Kidushin to be valid (in which case, it is not be'Yado).
(a) Rav Ashi therefore bases the distinction between the Reisha and the Seifa on Rav Huna Amar Rav, who learns from the Pasuk ...
1. ... "es Biti Nasati"- that a father is believed to declare his daughter betrothed, forbidding her on the whole world.
2. ... "la'Ish ha'Zeh" - that he is believed to specify which man, thereby permitting him to marry her.
(b) Rav Ashi subsequently differentiates between the Reisha ('Kidashtihah ve'Gerashtihah') - where the Torah believes him, and the Seifa ('Nishbis u'Fedisihah') - where it does not (and where two witnesses are therefore required, as is usually the case).

(c) A father is believed to say 'Kidashtihah ve'Gerashtihah' (despite the fact that the Pasuk "es Biti Nasati ... " deals with Kidushin (exclusively) - because of the principle 'ha'Peh she'Asar Hu ha'Peh she'Hitir' (which is why he is only believed 'Toch K'dei Dibur' [within a couple of seconds] of 'Kidashtihah').

(d) The reason that the father is not believed in the Reisha, if his daughter turned a Bogeres" is - because the Torah only believes him that he betrothed his daughter as long as he has jurisdiction over her (to betroth her). And, as we just explained, 'Gerashtihah' is only believed when 'Kidashtihah' is.

(a) The Tana of our Mishnah - believes a man who declares on his death-bed that he has sons, but not one who declares that he has brothers.

(b) The ramifications of the fact that he has ...

1. ... sons - are that his wife is exempt from Yibum.
2. ... brothers - are that she is obligated.
(c) We try to establish our Mishnah not like Rebbi Nasan, but like Rebbi, who ...
1. ... in a case where a man declared at the time of his betrothal that *he has sons* (in which case his wife is not subject to Yibum), and just before he died, he says that *he does not* (in which case she is) - accepts his first statement.
2. ... in a case where he first declares that *he has no brothers* (in which case his wife is not subject to Yibum), and then declares that *he has* (in which case she is) - accepts his first statement here as well.
(d) Rebbi Nasan disagrees with Rebbi, believing both of the man's latter statements, for reasons which we will now clarify.
(a) Rava attempts to reconcile Rebbi Nasan with our Mishnah - by stressing that Rebbi Nasan speaks specifically when he retracts from what he previously said, because the fact that he retracts on his death-bed indicates that he has repented for having initially issued a false testimonial. But in our Mishnah, where this is not the case, he will agree with Rebbi.

(b) Abaye disagrees with Rava. He counters Rava's contention with a 'Kal va'Chomer' - If, when we know that he lied in one of his testimonials, we nevertheless believe one of them, then we ought certainly to believe him when there is no indication that he is lying.

(c) To reconcile our Mishnah with Rebbi Nasan, Abaye establishes it when there is no Chazakah whatsoever, and the Beraisa, when there is. The man ...

1. ... is believed when he declares on his death-bed 'Yesh Li Banim - because he is merely consolidating the woman's initial Chazakah (since if there are no brothers and no sons, she is exempt from Yibum anyway).
2. ... is not believed when he declares 'Yesh Li Achim' - because he then clashes with the Chazakah.



(a) And he establishes the Beraisa when there is a Chazakah that he has brothers - not witnesses (whose testimony would be final), but hearsay.

(b) When Abaye ...

1. ... refers to 'Mah Lo le'Shaker' (in connection with the husband), he means that when, at the time of Kidushin, he said 'Ein Li Achi', he is believed because, in order to exempt his wife from Yibum, he could have simply promised to give her a Get shortly before his death, without needing to lie.
2. ... explains that Rebbi holds 'Mah Lo le'Shaker ke'Eidim Dami' - he means - that 'Mah Lo le'Shaker' has the strength of witnesses.
(c) Whereas Rebbi Nasan holds - that 'Mah Lo le'Shaker' only has the strength of a Chazakah. Consequently, the second Chazakah cannot overpower the first one completely, in which case, the obligation to perform Yibum created by the original Chazakah, will remain intact, at least, to the extent that his testimonial on his death-bed will substantiate it). Whereas according to Rebbi, 'Mah Lo le'Shaker' (absolving her from Yibum) will override the original Chazakah (obligating her to perform Yibum), because witnesses are stronger than a Chazakah. Consequently, when on his death-bed he retracts, declaring that he has brothers, he is not believed.

(d) The significance of the fact that he retracted on his death-bed (and stated 'Yesh Li Achi') is that, had he not done so - his original statement 'Ein Li Achi' (based on the S'vara 'Ein Adam Chotei ve'Lo Lo'), would have weakened the original Chazakah, and the mere fact that he did not retract before he died would be sufficient indication that he really had no brothers, permitting her to marry.

(a) The Tana of our Mishnah states 'ha'Mekadesh es Bito S'tam, Ein ha'Bogros bi'Chelal' - seeing as a Bogeres is not under her father's jurisdiction.

(b) Assuming that he has daughters from two consecutive wives, and he declared 'Kidashti es Biti ha'Gedolah', all his daughters are now Safek Mekudashos, except for the youngest, according to Rebbi Meir - due to the fact that each one is older than the ones who are younger than her (even the youngest daughter from the first wife is older than the oldest from the second).

(c) Rebbi Yossi maintains - that all the daughters are permitted except for the 'Gedolah she'bi'Gedolos'. In his opinion, a person does not enter into a Safek that he will later be unable to clarify. Consequently, 'Gedolah' means 'Gedolah she'bi'Gedolos'.

(d) And if he declared 'Kidashti es Biti ha'Ketanah', according to ...

1. ... Rebbi Meir - all his daughters will be forbidden except for the very oldest.
2. ... Rebbi Yossi - they will all be permitted except for the very youngest.
(a) We infer from 'Ein ha'Bogros bi'Chelal', that all the Ketanos are included, even though he cannot live with any of them - because each one is a Safek Achos Ishto.

(b) We reject the proof from here that 'Kidushin she'Ein Mesurin le'Bi'ah, Havu Kidushin (like Abaye in the previous Perek) - by establishing the Mishnah when there is only one Bogeres and one Ketanah.

(c) The Tana nevertheless says 'Bogros' (in the plural) - because it refers to Bogros in general.

(d) In that case, it seems obvious that the father betrothed the Ketanah and not the Bogeres (who is not under his jurisdiction anyway). Assuming that ...

1. ... the Bogeres merely appointed her father to be her Sheli'ach - the Tana is teaching us that even though he accepted her Shelichus, he will nevertheless give his younger daughter priority over, bearing in mind that he receives her Kesef Kidushin.
2. ... she even permitted him to pocket the Kesef Kidushin - he is teaching us that he would not give a personal undertaking precedence over a Torah obligation.
10) Having taught us the Din of ...
1. ... 'Biti ha'Gedolah', the Tana nevertheless finds it necessary to repeat that of 'Biti ha'Ketanah' - because we might otherwise have thought that Rebbi Meir only includes all the daughters in Safek Gedolah, because he wants to honor them all with the title 'big', but when it comes to Biti ha'Ketanah', he would concede to Rebbi Yossi that he obviously meant the very youngest.
2. ... 'Biti ha'Ketanah', the Tana nevertheless finds it necessary to repeat that of 'Biti ha'Gedolah' - because we might otherwise have thought that Rebbi Yossi only restricts 'Biti ha'Ketanah' to the very youngest daughter, because he would not want all his big daughters to feel small, but when it comes to Biti ha'Gedolah', he would concede to Rebbi Meir, that all the daughters except for the youngest fall into the Safek.
(a) The Mishnah in Kesuvos rules in a case where someone declares a Neder forbidding something ...
1. ... 'ad ha'Pesach' - that he means until the arrival of Pesach.
2. ... 'ad she'Yehei ha'Pesach' - that he means until after Pesach.
(b) If he said 'ad P'nei ha'Pesach', Rebbi Meir compares it to 'ad ha'Pesach' - Rebbi Yossi, to 'ad she'Yehei ha'Pesach'.

(c) The basis of their Machlokes is - that, according to Rebbi Meir, a person does not enter into a Safek which he cannot resolve (and each day of Pesach is the 'P'nei' of the next one). So he must have meant until the arrival of Pesach; whereas according to Rebbi Yossi, a person does enter into a Safek.

(d) Rav Yitzchak bar Avdimi Amar Rav reconciles their respective opinions with what they say in our Mishnah - by switching their opinions in Nedarim to conform with their opinions here (and we know that this is correct, because the Tana in a Beraisa specifically says so).

(a) Abaye establishes the case of 'Biti ha'Gedolah' in our Mishnah specifically when there are two sets of daughters from two wives. If there was only one set from one wife he says - 'Gedolah' would refer specifically to the oldest and 'Ketanah' to the youngest.

(b) And Abaye maintains that the middle daughter in one set is called 'Emtza'is' and is not included 'Gedolah' or 'Ketanah'. The reason that Rebbi Meir in our Mishnah forbids all the daughters of both groups except the very youngest, and not the middle daughters in the second set is - because the Tana speaks when there are none.

(c) He proves this - from the fact that the Tana said 've'Eini Yodei'a Im Gedolah she'bi'Gedolos ... O Gedolah she'bi'Ketanos' and did not add 'O Emtza'is she'bi'Ketanos'.

(d) And he then goes on to explain that the Tana doesn't mention the middle daughter in the first set either, even though it is obvious that she is incl uded in the Safek (because she is big compared to all those in the second set) - simply because (due to the fact that if the youngest member of that set is included, then how much more so her older sisters) it is unnecessary. In the second set on the other hand, since the youngest daughter is not included in the Safek, if the middle one was, then the Tana ought to have mentioned her.

(a) Rav Huna B'rei de'Rav Yehoshua ask Rava from the Mishnah re. 'ad P'nei Pesach, on Abaye, who restricts the Machlokes between Rebbi Meir and Rebbi Yossi in our Mishnah to when there are two sets of daughters. If so, he asked him, why do they argue whether 'ad P'nei Pesach' incorporates the days in between the beginning of Pesach and the end or not. According to Abaye (whose opinion is not directly disputed), bearing in mind it is similar to one set, they ought to agree that the middle days are not included in P'nei?

(b) Rava replied - that this Machlokes has nothing to do with the previous She'eilah (of whether a person lets himself into a doubt or not, like we thought previously). Their Machlokes is whether 'ad P'nei Pesach' implies until before Pesach or until Pesach has passed.

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