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Nedarim, 6

NEDARIM 6 (Tamuz 22) - dedicated by Zvi and Tamara Sand of Har Nof, Yerushalayim, for the Yahrzeit of Tamara's father, Shlomo Zevulun ben Yakov Tzvi Ben-David.


OPINIONS: The Gemara, in an attempt to prove that "Yadayim she'Einam Mochichos" are *not* Yadayim and thus to disprove Abaye, cites a Beraisa which discusses a case of a person who declares, "Harei Hu Alai" -- "Behold, this item is upon me" (sic). The Beraisa says that such a declaration is a Yad l'Korban and the Neder takes effect. This implies that if the person does not say "Alai," the Neder does not take effect, because the phrase "Harei Hu" alone is a Yad she'Eino Mochi'ach and does not suffice to make a Neder.

The Gemara rejects this proof by saying that if one says "Harei Hu" alone, it is not even a Yad she'Eino Mochi'ach for creating an Isur, since the person might mean by that phrase that he is making the item Hefker or Tzedakah.

The Gemara does not accept this defense for Abaye, because "the Beraisa says 'it is a Yad l'Korban'." What does this mean? How does this disprove the rebuttal of Abaye?

(a) It seems that the Ran understands the Gemara in accordance with his own view that there are two types of primary Nedarim: a Neder one makes by saying that the item is prohibited ("this item is Asur"), and a Neder one makes by comparing the object to Hekdesh ("this item is like a Korban"). When a person does not compare the object to Hekdesh, the object -- although it becomes Asur -- does not undergo an inherent change in status (that is, it gets no degree of Hekdesh). If a person just says that the object is Asur, it has upon it only an Isur Cheftza; it does not undergo a change of status. Abaye rejects the proof from the Beraisa by saying that "Harei Hu" implies that there is a change of status in the object, and not just an Isur on the object (even though some hold that "Yesh Me'ilah l'Konamos" (35a), that might be only when the person makes a Neder with Hatfasah). Therefore, "Harei Hu" implies Hefker or Tzedakah, which are both inherent changes of status. The Gemara responds to Abaye that "Harei Hu" alone -- although without Hatfasah it cannot be a Yad for a Neder -- should be a Yad for actually making the object Hekdesh (or a Yad for a Neder with Hatfasah), because it changes the status of the object, just like Hefker or Tzedakah.

(b) According to the ROSH, the rebuttal of Abaye is based on the wording of the Beraisa. When the Beraisa says "it" is a Yad l'Korban, it implies that one portion of the sentence "Harei Hu Alai" is a Yad. Obviously, the word "Alai" alone is not a Yad, for it is meaningless when said alone, so it must be that "Harei Hu" is a Yad. Even though "Harei Hu" is a Yad, nonetheless a Neder is only created when the person says, "Harei Hu Alai." This shows that a Yad she'Eino Mochi'ach ("Harei Hu") is not a Yad.

(c) TOSFOS and TOSFOS YESHANIM explain that the phrase in the Beraisa "because it is a Yad for a Korban" implies that the phrase "Harei Hu Alai" is a Yad Mochi'ach for a Korban. Since the Beraisa emphasizes that the Yad works only because it is a Yad Mochi'ach, we infer that a Yad she'Eino Mochi'ach does not create an Isur, and is not a Yad.


QUESTION: The Gemara discusses whether the laws of Yados apply to Kidushin, Pe'ah, Tzedakah, Hefker, and Beis ha'Kisei, just as they apply to Nedarim. What is the Gemara's doubt whether Yad can make Kidushin take effect? In the case of Nedarim, we know that a Neder cannot take effect unless it is verbally articulated (as opposed to being just thought in one's mind; Shevuos 26b). A Yad, since it is not a fully articulated statement, might not suffice, and therefore a verse is needed to teach that a Yad can create a Neder. In contrast, there is no source that says that Kidushin must be created through speech, so of course Yad should work!


(a) RAV BARUCH BER LEIBOWITZ (in Birkas Shmuel, beginning of Kidushin) cites tbe words of his mentor, RAV CHAIM SOLOVEITCHIK. He explains that Kidushin indeed must be made with speech. The reason for this is because the verse says "Ki Yikach Ish Ishah" (Devarim 22:13), which teaches that the man must do an action of taking the woman (as opposed to her doing an action to the man; Kidushin 2b). This verse teaches that not only must he give her Kesef or Shtar for Kidushin, but he must also make clear through his speech or his action that he is being Mekadesh her.

(b) There is an important difference between the Kinyan of Kidushin and all other Kinyanim. Normally, a Kinyan takes effect even if there are no witnesses who see the Kinyan. As long as both the buyer and seller consent, the Kinyan takes effect. In contrast, Kidushin must be done in front of witnesses, and if not done in front of witnesses, the Kidushin is not valid at all (Kidushin 65b). The witnesses cause the Kidushin to take effect; their presence is an intrinsic part of the Kidushin process. Consequently, if the man does not clearly articulate that he is performing Kidushin in order to be Mekadesh the woman, then the witnesses do not know for certain that a Kidushin is being made and therefore the Kidushin will not take effect. It is not enough that there are witnesses watching; the witnesses must also know that they are witnessing a Kidushin being performed. Even if both the man and woman later say that they had intentions for the Kidushin to take effect, the Kidushin is not valid unless the husband announces such at the time that he makes the Kidushin.

Why, though, should Yados not suffice to reveal his intentions? When one makes a statement that is a Yad Mochi'ach, it should reveal his intention, and the only thing lacking is an explicit speech showing his intention. The answer is that Yad Mochi'ach does not make his intention absolutely clear; if his partial statement would be absolutely clear, then it would not be a Yad Mochi'ach, but rather a complete expression (it would just be a different form of expression). Every Yad -- even a Yad Mochi'ach -- retains some aspect of ambiguity. The Halachah of Yados teaches that although it is not absolutely clear, his speech is clear enough that it is considered as though he stated his intention explicitly. Therefore, when it comes to Kidushin as well, we can only consider his statement to be clear enough for the witnesses if the Torah tells us that we judge the partial statement as if he had clearly stated his intention.

QUESTION: Rav Papa asks whether or not Yados work for Kidushin. The RAN points out that we know that Yados work for Gerushin, and he explains that the reason why Yados work for Gerushin but might not work for Kidushin is that since the Yad in the Get is accompanied by the act of giving over the Get, it is considered to be more than just a Yad Mochi'ach; it is an "Ikar Mochi'ach" -- the circumstances show what his intentions are. In the case of Kidushin, however, the man does not accompany his statement ("v'At") with any act. He does not even give a Perutah to the woman to whom he says the Yad, so no action is involved.

REBBI AKIVA EIGER (in GILYON HA'SHAS) asks that according to the Ran's explanation of the difference between Get and Kidushin, how can the Gemara prove that Rav Papa holds that a Yad can be used for Kidushin from his response to Shmuel? Shmuel says that Yad works for Kidushin in a case where a person gives a Shtar to a woman and says to her, "Harei At Mekudeshes." In such a case, Yad certainly works to make Kidushin because it is accompanied by an action which shows his intentions!

In addition, why does the Ran consider giving a Get to be an act that is Mochi'ach? In the Get itself the man does not write a clear statement of divorce, because, according to the Chachamim (see 5b), he does not have to write the words "Mina'i" ("from me") or "v'Dein" ("with this [Get]"), since they hold that a Yad she'Eino Mochi'ach suffices. Why, then, does the action of giving it over make it more Mochi'ach?

ANSWER: The reason why giving a Get is considered to be an act that is Mochi'ach, that shows his intentions, is because the act informs us of the two missing facts: who is divorcing the woman, and with what he is divorcing her (with speech or with a Shtar). It is obvious that this man is divorcing her, since he is the one giving the Get and he has been the husband of the woman until now. It is also obvious that the divorce is being effected by the giving of the Get, since he is handing over the Get to her in which the words of the divorce are written.

In contrast, when a person gives money for Kidushin and says "Harei At Mekudeshes" but does not say to whom, it is not clear that he is the one who is marrying this woman, since it could be that he is just a Shali'ach giving her the money on behalf of someone else who is being Mekadesh her. Since the man has no previous relationship with the woman, there is no way of knowing whether he is the groom or someone else is the groom. In the case of divorce, though, where the man was already married to her, it is obvious that he is the one divorcing her when he gives her the Get and that it is not someone else divorcing her through his Shelichus. (See AVNEI MILU'IM 27:1.)

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