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Nedarim, 30


QUESTION: Rav Oshiya asks what the Halachah is in a case where a man gives two coins to one woman in order to make one Kidushin now and a second Kidushin after he divorces her. He attempts to prove from our Mishnah that the second Kidushin takes effect, since our Mishnah says that when a person who is Makdish saplings (Neti'os) until they are cut down, the Neti'os become Kadosh again after he is Podeh them.

Rebbi Yirmiyah rejects this, saying that if, in the case of our Mishnah, someone else would be Podeh the Neti'os ("Pada'an Acherim"), then they would *not* become Kadosh again, even if the Makdish purchases them from the one who was Podeh them, because there was a moment at which his act of being Makdish them could not take effect -- after the Pidyon, before he re-purchased them. Since the Hekdesh could not take effect at the moment of his declaration, it cannot take effect later when the Neti'os are back in his possession. In the case of Kidushin of a woman, too, when one is Mekadesh her a second time it is like "Pada'an Acherim" as well. When he gives her a Get, she is not in his Reshus to be Mekadesh her again, since she must agree to the Kidushin again after the Gerushin. The Kidushin cannot take effect immediately because it depends on the woman. Therefore, even if she later agrees to the Kidushin, it does not take effect, since it was not in the ability of the Mekadesh to effect a Kidushin the entire time.

Why does the Gemara say that when the woman is divorced, it is like "Pada'an Acherim" and thus it is not in the man's ability to make a second Kidushin take effect right away? We learned earlier (29b) that if a man gives money to a woman for Kidushin and says that the Kidushin should take effect only after a certain time (or action), there is one opinion that says that the woman cannot change her mind. If she cannot change her mind, then when the man gives her two coins and says that the second coin should effect a Kidushin as soon as he divorces her from the Kidushin effected by the first coin, then the second Kidushin should take effect right away after the Gerushin! It should not be in her ability to change her mind; the second Kidushin should take effect immediately because of her previous agreement! Why, then, is it like a case of "Pada'an Acherim," wherein the second Hedkesh cannot take effect immediately after the first?


(a) The ROSH and TOSFOS do not relate to this point. They write simply that since the woman's agreement is still needed in order for the Kidushin to take effect, it is considered like a case of "Pada'an Acherim."

It is possible that the Rosh is learning that the opinion earlier (29b) that holds that she cannot change her mind when she accepts a Kidushin that will take effect at a later date does not mean to say that the Kidushin automatically takes effect at the specified moment in the future without requiring further agreement on her part. Rather, it means that the woman is not permitted to change her mind and to refuse the Kidushin since she already agreed to it; once she gave her word, accepted money and promised in return to make a Kidushin, she is obligated to keep her word (Bava Metzia 48a). The Kidushin, though, still requires her consent at the later date in order to take effect, so even though she is not allowed to change her mind, if she does change her mind the Kidushin will not take effect. This interpretation is evident in the way that the Rosh explains the Gemara's statement (29b) that both opinions agree that with regard to Hekdesh, one cannot change his mind because of the principle of "Amiraso la'Gavo'ah, k'Mesiraso l'Hedyot." The Rosh explains that this does not mean that the Hekdesh will take effect after thirty days have passed against the owner's will. Rather, it means that it is prohibited for him to change his mind and retract the Hekdesh, because his word to make it Kadosh was like a Nidrei Mitzvah to make the object Kadosh, and hence he is obligated to keep his word.

(b) However, the RAN does not interpret "Amiraso la'Gavo'ah, k'Mesiraso l'Hedyot" in that way. He seems to understand that the opinion that says that the woman may not change her mind means that she is not *able* to change her mind once she already accepted the Kidushin, even though it has not yet taken effect.

Why, then, is that case like a case of "Pada'an Acherim?" The Ran explains that the woman is a passive party in effecting the Kidushin. She just has to make herself Hefker and let the man take her. Therefore, after a Get is given, she is not yet Hefker and making a new Kidushin with her still depends on her decision to make herself Hefker. Therefore, the Gerushin removing the first Kidushin is considered like "Pada'an Acherim," wherein she acquires herself back, so to speak, since she takes part in the Gerushin while she is not an active participant in the Kidushin.

How, though, does this answer our question? If the woman originally agreed to a second Kidushin, then she cannot change her mind and she must make herself Hefker immediately upon being divorced from the first Kidushin. Consequently, there is not a single moment during which the second Kidushin could not take effect, and during which she should be considered to be in the domain of someone else (Reshus Acherim), because immediately after the Gerushin she is going to make herself Hefker (whether she wants to or not) because of her previous agreement!

The answer is that the Ran seems to mean as follows. Since Kidushin does not just require her consent but it also requires that she make herself Hefker, after the Gerushin there must be a moment during which the woman is in her own Reshus, with complete control, in order that she be able to make herself Hefker. She must go from being married (a state of being Mevatel her Da'as to her husband) to being independent of her husband, and then once she is in charge of her own Da'as she is able, again, to be Mevatel her Da'as to her husband. She cannot go from a state of being in someone else's Reshus to being in someone else's Reshus again. Rather, she must first be in her own Reshus in order to allow herself to be taken into someone else's Reshus. Even though she agreed earlier and cannot change her mind, nevertheless since there is a moment after the Gerushin during which the Kidushin cannot take effect because she must have her own Da'as before she can be Mevatel her Da'as and make herself Hefker, it is like "Pada'an Acherim."

QUESTION: The Ran quotes the Rashba who discusses the Halachic ruling in the case of Rav Oshiya, in which a man gives two coins to one woman in order to make one Kidushin now and a second Kidushin after he divorces her. The RASHBA rules that the second Kidushin *does* take effect, based on the Gemara in Kesuvos (59b) which says that when a person sells a field to his friend and says, "This field that I am selling to you should become Hekdesh as soon as I buy it back from you," the field becomes Hekdesh. The reason the field becomes Hekdesh at that later time is that since right now he has the ability to be Makdish it, even if it goes out of his possession before the Hekdesh takes effect, the Hekdesh still takes effect at the later time.

The Rashba says that the same applird to this case of Kidushin -- the second Kidushin will take effect because he could have been Mekadesh her with that Kidushin right now (before the first Kidushin and the Gerushin).

The RAN does not accept this comparison. He argues that in the case of the person selling the field, the owner could have made the field Hekdesh at the moment he sold it just as well as making it Hekdesh later, and that is why the Hekdesh takes effect later when he buys back the field. In contrast, in the case of Kidushin, the second Kidushin *cannot* take effect at the moment that he is Mekadesh her, because the *first* Kidushin takes effect at that moment and once she is already Mekudeshes, she cannot become Mekudeshes with a second Kidushin! Consequently, the second Kidushin should *not* take effect later, either (because it is not "b'Yado," it is not within his ability to make it take effect now).

What is the Ran's logic for arguing with the Rashba's ruling? Just like the Ran's description of the case of the second Kidushin, in the case where one sells his field and says that it should be Hekdesh when he buys it back, the Hekdesh cannot take effect now because he has already sold the field! It should *not* be considered "b'Yado," just like the second Kidushin is not considered "b'Yado" according to the Ran! Why does the case of making the field Hekdesh differ from the case of being Mekadesh a woman with two sets of Kidushin, where the second Kidushin cannot take effect now because the first Kidushin has already taken effect?

ANSWER: The CHAZON ISH explains, based on the Ran in Kidushin (62b), that the Ran means that the Gemara in Kesuvos does not say that a person *sells* his field and says at the same moment as he sells it, "When I buy it back, it will be Hekdesh." Rather, the Gemara just says that *before* a person sells his field, he may say to the purchaser, "I am *going* to sell you this field at some point in the future, and after I buy it back from you it will be Hekdesh." He is *not* selling it at the same time that he pronounces the Hekdesh. Therefore, he *is* able to make it Hekdesh at that moment, since the field is still in his possession. In contrast, when a man gives two coins to a woman, the moment that he declares the second Kidushin, it cannot take effect because the first Kidushin takes effect at that moment.

The Rashba does not make such a distinction, perhaps because he holds that since the two sets of Kidushin are being made at the same instant, either one of them could take effect -- the Kidushin of the first coin, or the Kidushin of the second coin. Therefore, it is considered "b'Yado" to make the second Kidushin take effect at that moment.


HALACHAH: The Mishnah states that a person who makes a Neder prohibiting himself from deriving benefit from "Shechorei ha'Rosh" -- "those whose heads are covered with black hair" -- is prohibited from deriving benefit from all men, and is permitted to derive benefit from women and children. The RAN explains that the term "Shechorei ha'Rosh" refers to men because had the person intended to prohibit himself from women, he would have said "those whose heads are covered," and had he intended to prohibit himself from children, he would have said "those whose heads are uncovered." He could not refer to men as "those whose heads are covered," because some men cover their heads and some men do not. Hence, he used a different phrase. Since *most* men have black hair, he calls all men "Shechorei ha'Rosh."

This Halachah of the Mishnah, according to the Ran's explanation, implies that it is not obligatory for a man to cover his head. What is the Halachah with regard to covering one's head (such as with a "Kipah")?

(a) The TUR (OC 8) writes that during Shacharis, when donning the Talis one should make sure "to cover his head so that he not be with a bare head." The Tur seems to be saying that he should cover his head with the Talis so that he not be bare-headed while he Davens. This implies that it is not necessary to wear a head-covering at all other times. Indeed, the DARCHEI MOSHE there says that it is only a Midas Chasidus, an act of righteousness to cover one's head, but it is not obligatory, as is the view of the RAMBAM. Hence, only when Davening or reciting a Berachah must one cover his head.

(b) The BEIS YOSEF there says that the Tur certainly does not mean that it is permitted for a man to go with one's head uncovered. Rather, he explains that the Tur is saying that one must cover his head with the Talis so that his head will not be bare *of the Talis*. The Beis Yosef says that part of the Mitzvah of wearing a Talis involves covering one's head with the Talis.

(c) The TAZ (OC 8:3) says that the Tur is not referring to covering one's head with the Talis at all, but rather the Tur is saying that one must cover his head with a *Kipah* while Davening. One might think that since he covers his head with the Talis, he does not have to wear a Kipah while Davening. Therefore, the Tur says that one must wear a Kipah as well, because the Talis does not suffice as a head-covering since it often slips down off of the head.

The TAZ then cites the MAHARSHAL (Teshuvos 72) who discusses whether it is Asur m'Ikar Din to go bare-headed. The Maharshal concludes that it is only Asur m'Ikar Din while reciting a Berachah or Davening, but not at all other times (some argue and say that even when reciting a Berachah, it is not necessary m'Ikar Din to have one's head covered; see TERUMAS HA'DESHEN #203, VILNA GA'ON OC 8).

The TAZ argues with the Maharshal and says that it is Asur m'Ikar Din because of the Isur d'Oraisa of "You shall not go in their ways;" since the Nochrim (during the time of the Taz) specifically removed their head-covering for ritual purposes (see IGROS MOSHE, end of OC I:1), it is forbidden for a Jew to go bare-headed so that he not be acting in the ways of the Nochrim. Many Acharonim (see MAGEN AVRAHAM OC 2 and OC 91) question the Taz's reasoning, though (see also SDEI CHEMED vol. 5, pp. 230, 262, and vol. 2, pp. 17, 40). Others

HALACHAH: The practice today is that every G-d-fearing man covers his head. The MISHNAH BERURAH (OC 2:10-12) cites the TAZ who says that it is Asur to go bare-headed, but even according to those opinions that hold that it is not Asur, it is certainly proper, and has been the practice of all Jews throughout the generations, to wear a head-covering. Hence, one should not walk four Amos without a head-covering (SHULCHAN ARUCH OC 2:6; see Mishnah Berurah there for various other details of this Halachah).

RAV MOSHE FEINSTEIN, based on the opinions above that hold that wearing a head-covering is *not* obligatory m'Ikar ha'Din, rules that one whose job or income will be jeopardized by his insistence on wearing a head-covering is permitted to remove his head-covering when working (IGROS MOSHE OC IV:2).

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