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Kesuvos, 49

1) THE ROLE OF "MESIRAH"

QUESTION: The Gemara cites a verse to prove that after the father hands over his daughter ("Mesiras ha'Av") to the emissaries of the husband, she leaves the Reshus of her father and he may no longer annul her Nedarim. It seems clear from the verse that mid'Oraisa, Mesirah has the status of Chupah. If so, how is that earlier (48b) we find that Shmuel and other Amora'im rule that Mesirah works only for Yerushah, inheritance (i.e. the husband inherits the woman if she dies after Mesirah), and support for this is brought from a Beraisa? We see from the Beraisa here that Mesirah works even for Hafaras Nedarim. If so, it seems that it is not only effective for Yerushah, but for all of the laws of Chupah! (TOSFOS 48b, DH u'Shmuel)

ANSWERS: The Rishonim seem to have entirely different perspectives concerning what Mesirah l'Chupah is, as is evidenced by how they answer this question.

(a) TOSFOS (DH u'Shmuel and DH Teyuvta; see also DH Rav Asi) explains that Mesirah la'Ba'al actually accomplishes Nesu'in mid'Oraisa.

The Amora'im who say that Mesirah works only for Yerushah do not mean that all it accomplishes is that the husband inherits the Nedunya. Rather, they are merely excluding Achilas Terumah. They are saying that it works for Yerushah (and for the other laws of marriage) but it does not work to permit the wife to eat Terumah. Even though Mesirah is a type of Chupah, there is still a fear of "Simpon," and the Rabanan therefore took away the woman's rights to eat Terumah until she moves in with him.

(b) RASHI (48b, DH Shmuel) takes the opposite approach. Rashi writes that Mesirah is really not a Chupah at all. Chupah involves Yichud of some sort in the house of the husband. Mesirah is not a form of Chupah at all. Even though the Halachos of Na'arah Me'urasah do not apply after the Mesirah (that is, if she is Mezanah, she receives Chenek like any married woman, and not Sekilah like an Arusah), that is not because Mesirah is a form of Chupah, but it is because there is less of a disgrace to the father after that point, and therefore the punishment is less severe.

Why, then, may the husband annul her Nedarim after the Mesirah if Mesirah does not create Nesu'in? The Halachah of Hafaras Nedarim should depend on marriage!

The answer is that Rashi (ibid.) in fact writes that even after the Mesirah, the husband may *not* annul her Nedarim. How, though, does Rashi understand the Beraisa here that says that Mesirah removes her from the Reshus of the father with regard to Hafaras Nedarim, implying that the husband *may* annul her Nedarim?

The PNEI YEHOSHUA and others explain that according to Rashi, she is neither in the Reshus of the father nor in the Reshus of the husband. Mesirah only removes her from the father's Reshus, but it does not bring her into the husband's Reshus. Neither of them may annul her Nedarim after Mesirah. (This is why the verse compares her to Almanah Gerushah, for whom no one may annul her Nedarim.)

This answers a number of other difficult points in Rashi. REBBI AKIVA EIGER points out that Rashi earlier (48b, DH l'Olam) implies that even according to those who say that Mesirah makes them completely married, it is *not* Koneh her for everything; there are certain matters for which she is not considered married. Regarding what does Mesirah not serve to be Konah her to him?

The answer is that Mesirah does not make her married with regard to Hafaras Nedarim. It makes her married to him with regard to Terumah, because there is no longer any fear of "Simpon," and with regard to other Halachos that are mid'Rabanan. (It also makes her like a married woman with regard to Tum'ah, if he is a Kohen, as Rashi 48b DH Mesirasah la'Kol tells us. The reason for this is that since she has left the house of her father through Mesirah, there now is nobody to bury her. She therefore is deemed a "Mes Mitzvah," and the husband may bury her -- as the Gemara explains in Yevamos 89b with regard to a Mema'enes.)

This might also explain why Rashi says that the opinion that holds that she may eat Terumah after Mesirah also holds that the Rabanan prohibited an Arusah from eating Terumah only because she might give it to her brothers and sisters, but *not* because of "Simpon." TOSFOS asks that the conclusion of the Gemara (on 58b) is that the reason the Rabanan prohibited her from eating Terumah is because of "Simpon" and not just because she might feed the Terumah to her brothers and sisters. Rashi should have explained that the opinion which allows her to eat Terumah after Mesirah holds that there is no more problem of "*Simpon*" at that point, since that is already the beginning of Nesu'in, and the husband checks her out before that point. Why does Rashi explain that Rav Asi, who holds that she eats Terumah, is arguing with the conclusion of the Gemara later (58b)?

The answer might be that Rashi is following his opinion that Mesirah only removes her from her father's house but accomplishes nothing towards bringing her into the Reshus of her husband. Therefore, it would not be logical to say that her husband checks her for blemishes and that there is no fear of "Simpon" from the time of the Mesirah. Tosfos, on the other hand, is following his view that Mesirah is Chupah mid'Oraisa and therefore the husband checks her out for blemishes before the Mesirah. (M. Kornfeld)

QUESTION: The Gemara infers from a Beraisa that Mesiras ha'Av, the father's handing over of his daughter to the emissaries of the husband, can change an adulteress' punishment from Sekilah to Chenek (that is, it gives her a status of a Nesu'ah instead of an Arusah). The Beraisa says that when the woman is "Nichnesah l'Reshus ha'Ba'al l'Nesu'in" ("when she enters the domain of the husband for Nesu'in"), then her punishment is Chenek. The Gemara says that "Nichnesah l'Reshus ha'Ba'al" means a Mesirah without a Chupah. Even though there is no Chupah, she does not get Sekilah but only Chenek.

If the Gemara learns that the words "l'Reshus ha'Ba'al" mean Mesirah to the husband, and not actual Chupah, then we should make the same inference from those words in our Mishnah (48a) which says that "she is always in the Reshus of the father until she enters the Reshus of the Ba'al for Nesu'in." The Mishnah should mean that from the time of the *Mesirah* to the husband, she leaves the Reshus of her father. The Gemara there explains that this part of the Mishnah is discussing Achilas Terumah. If so, the Mishnah is saying clearly that after the Mesirah, she *does* eat Terumah. Why, then, does the Gemara not bring proof from the Mishnah for Rav Asi and Rebbi Yochanan, who say that the woman may eat Terumah after the Mesirah la'Ba'al? (TOSFOS 48a, DH l'Olam)

ANSWERS:

(a) TOSFOS explains that the inference in our Gemara is from the word "*Keivan* she'Nichnesah..." -- "*when* she enters his Reshus," which implies that she just *started* to enter his Reshus, referring to the Mesirah. In the Mishnah, though, it says "*Ad* she'Tikanes" -- "*until* she enters the Reshus," which means until she *completely* enters the Reshus of the husband. (See a similar approach in Tosfos to Zevachim 56a, DH Minayin, in the name of Rabeinu Tam.)

(b) The RITVA does not have the word "l'Nesu'in" in our Mishnah. He says that it is only from the Beraisa which adds the extra word "l'Nesu'in" that we may infer that it is talking about Mesirah la'Ba'al.

(c) The ROSH and RIF and others have the Girsa in the Mishnah (48b), "Ad she'Tikanes *l'Chupah*," and not "Ad she'Tikanes *l'Reshus ha'Ba'al*." This is also the way the Gemara (48b) quotes the Mishnah.

49b