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Kidushin 2

1) KIDUSHIN WITH A RING

HALACHAH: The Mishnah says that a man can be Mekadesh a woman with Kesef or with Shaveh Kesef. Hence, a man can give a coin to a woman for Kidushin. However, the REMA (EH 27:1) writes that the present practice is not to be Mekadesh a woman with a coin, but rather with a ring. Many reasons have been given for this practice.

(a) The BEIS SHMUEL (EH 27:1, 31:5) cites the MORDECHAI who writes that one should not use a coin to be Mekadesh a woman. The Beis Shmuel writes that this was a rabbinic enactment. The AVNEI MILU'IM (ibid.) points out that the HAGAHOS MORDECHAI (Kidushin #488), which is apparently the source for the Beis Shmuel's words, does not prohibit the use of a coin, but rather he asks a question. Why should it be permitted to use a coin to be Mekadesh a woman? The Gemara in Kidushin (8a) explains that if a woman thinks that the Mekadesh is giving her an item of a certain value, and it turns out that it was an item of a different value, then the Kidushin does not take effect. The Gemara in Bava Metzia (45b) says that a coin cannot be used to make a Kinyan Chalifin, because when a person receives a coin, what he values is the stamp or form on the coin (since the coin is unusable without the stamp), but the stamp on the coin often changes (such as when a new king is appointed, he changes all of the old coins so that they bear his stamp). That is why a coin cannot be used for a Kinyan Chalifin. Accordingly, coins should not be able to be used for Kidushin either, since the woman relies on the stamp, but the stamp will change!

This is the question that the Hagahos Mordechai poses. However, the Hagahos Mordechai certainly does not doubt that a coin may be used for Kidushin l'Chatchilah, as our Mishnah says, and as the Beraisa later (5b) says.

The Avnei Milu'im answers the question of the Hagahos Mordechai based on what Rashi writes in Bava Metzia (45b, DH Matbe'a). Rashi writes that a coin without a stamp may not be used for Kinyan Chalifin because Chalifin must be performed with a *complete* object. A coin without a stamp is like an incomplete object. Hence, the Gemara in Bava Metzia does not mean that even while the coin bears its stamp, its true value is not what people assume it to be. Rather, the Gemara means that even while it bears its stamp (and is worth what people assume it to be worth), it is considered incomplete since the stamp might change tomorrow. With regard to Kidushin, though, this does not pose a problem, because even an incomplete object may be used for Kidushin if it is worth a Perutah, and the coin is indeed worth what the woman thinks it is worth, as long as it bears a stamp.

(b) The SEFER HA'MIKNAH (Chidushim to EH 50:1) and the TZAFNAS PANE'ACH (Hilchos Ishus 3:1) point out that the custom to be Mekadesh a woman with a ring might have been adopted when it became the practice to perform the Nisu'in immediately after the Kidushin (instead of performing the Nisu'in some months after the Kidushin). When the Nisu'in is performed, all of the wife's possessions become Nichsei Melug, and the husband has the rights to the Peros of those possessions. If the husband would give the wife money and then perform Nisu'in immediately afterwards, the money would be worth much less to her, since she would have rights only to the body (Guf) of the coin and not to the Peros (the spending value) of the coin! It may be viewed as though the husband fooled her about the amount of the Kidushin, or that he kept some of the amount for himself. Therefore, the custom was instituted to be Mekadesh the woman with a ring, which is something that the woman wears. The Gemara in Kesuvos (54a) teaches that while the wife is married, the husband gives her the rights even to the Peros of her clothing and of her personal objects. When she receives a ring, she is receiving the full value of the ring, even when the Nisu'in is performed immediately afterward. (The Tzafnas Pane'ach cites the Yerushalmi in Nazir 5:2 which says that a woman's jewelry is considered her possession and not the possession of her husband.)

(c) The SEFER HA'CHINUCH (Mitzvah 552) writes that the source for the practice to give a ring is the desire to provide the woman with something which will always be in front of her to remind her of her devotion to her husband, as in the verse, "Tie them on your fingers, inscribe them on the tablet of your heart" (Mishlei 7:3), referring to the commandments of the Torah.

(d) The REMA himself cites as a source for the practice the TIKUNEI ZOHAR (beginning of Tikun 5, and Tikun 10, page 25b).

A symbolic source, Al Derech Remez, for this practice might be from the verse in Yirmiyahu (31:21) which says that in the future, at the time of the final redemption, "the woman will look around (Tesovev) for the man," in contrast to the ways of the present time, where the man searches for a wife (as the Gemara says on 2b). Rashi and the Radak explain that the allegory is that the Jewish people will search for ways to return to Hashem. The verse here and in other places compares the final redemption to a Kidushin, the coming together of Hashem and His people. Perhaps to allude to our longing for this "Kidushin" to take place, at the time that a man and woman perform Kidushin, the man gives the woman a *ring*, a circular ornament, to hint to the verse of "*Tesovev* Gaver."

QUESTION: The Mishnah teaches that a woman becomes married (Mekudeshes) through either Kesef, Shtar, or Bi'ah. RASHI explains how the Kidushin is done in each of these cases. When a man is Mekadesh a woman with Kesef, Rashi explains, the man gives the woman money and he says, "Harei At Mekudeshes Li." When a man is Mekadesh a woman through Shtar, the man writes in a Shtar, "Harei At Mekudeshes Li," and he gives the Shtar to her. The source for these two forms of Kidushin is the Gemara later (5b and 9a) and the Tosefta (1:1). When he is Mekadesh her with Bi'ah, though, Rashi explains that the man lives with her and says, "Hiskadshi Li b'Vi'ah Zu."

There are a number of differences between the way Rashi presents Kidushei Bi'ah and the way he presents Kidushei Kesef and Shtar.

First, with regard to Kidushei Bi'ah, Rashi writes "v'Amar" -- "and he (the husband) said, 'Hiskadshi Li...'," instead of "v'Omer" -- "and he says," as Rashi writes with regard to Kidushin with Kesef and Shtar. (In the KSAV YAD of Rashi and in the RAN, the word "v'Omer" indeed appears with regard to Kidushei Bi'ah.)

Second, Rashi writes that the man must mention "b'Vi'ah Zu," while with regard to Kidushei Kesef and Shtar, the man does not have to mention the Kesef and Shtar with which he is being Mekadesh her. The RAMBAM (Hilchos Ishus 3:5) and the SHULCHAN ARUCH (EH 33) also include the words "b'Vi'ah Zu" only with regard to Kidushei Bi'ah but not with regard to Kidushei Kesef and Shtar. (The Me'iri, page 6, indeed writes that it is not necessary to say "b'Vi'ah Zu.")

Third, why does Rashi write with regard to Kesef and Shtar that the man makes the statement, "Harei At Mekudeshes Li," and with regard to Bi'ah he writes that the man says, "Hiskadshi Li" (which is a request and not a statement).

ANSWERS: The Acharonim suggest a number of reasons why Kidushei Bi'ah might need to be specified more clearly.

(a) The BIRUREI HA'SHITOS cites the OR CHADASH who points out that the Gemara (12b) teaches that the Amora'im prohibited being Mekadesh a woman with Bi'ah because of the concern for Peritzus. Perhaps that is why Rashi writes "v'Amar," meaning to say that only b'Di'eved does the Kidushin take effect if a person was Mekadesh a woman through Bi'ah, but l'Chatchilah a person should *not* say it and be Mekadesh her through Bi'ah.

This might answer the other questions as well. Since it is prohibited to be Mekadesh a woman with Bi'ah, the woman will not suspect that he intends to be Mekadesh her with Bi'ah unless he states so explicitly, since he could be Mekadesh her with Kesef. (She will think that the Bi'ah was just an act of Z'nus.) The man must say "Hiskadshi Li" because he assumes that she probably would not agree to take part in an inappropriate form of Kidushin.

(b) The IMREI BINYAMIN cites the CHIDUSHEI HA'RIM who explains that the witnesses do not have to see the Kidushei Bi'ah itself. It is enough that they see the Yichud and hear the husband say that he intends to be Mekadesh her with Bi'ah. Afterwards, we apply the principle of "Hen Hen Edei Yichud, Hen Hen Edei Bi'ah" (Gitin 81b; see ME'IRI, page 5, who brings differing opinions regarding whether or not this rule is applied to Kidushin).

This answers all three questions. First, since the Mekadesh must say "Harei At Mekudeshes Li" in front of witnesses, and the Bi'ah is performed afterwards *not* in the presence of witnesses, Rashi says "v'Amar" -- he *already said* "Hiskadshi Li," earlier, when he was in the presence of witnesses. Second, since the man is requesting that the woman make a Kidushin *in the future*, he says "Hiskadshi" rather than "Harei At Mekudeshes." Third, since the act of Kidushin is not being performed immediately after his statement, it is not clear what form of Kidushin he is using; perhaps he thinks that Yichud alone can effect a Kidushin. Therefore, he must say, "Hiskadshi Li *b'Vi'ah Zu*."

(c) Perhaps Rashi holds that it is not necessary to say "with this Kesef" ("b'Kesef Zeh") or "with this Shtar" ("b'Shtar Zeh") in a case where the man first gives the woman the Kesef or Shtar and then, afterwards, while the woman is holding it, he says that he is Mekadesh her. This is implicit in Rashi's words when he writes that "he gives her Kesef and he says to her 'Harei At Mekudeshes.'" Since she is still holding the Kesef or Shtar, he does not have to point out what he is being Mekadesh her with, because it is obvious. Similarly, he does not have to ask her whether she wants the Kidushin; he may state simply, "You are Mekudeshes to me," and she will show her consent by not returning the Kesef or Shtar.

However, with regard to Kidushei Bi'ah, if he tells her at the time that he wants to be Mekadesh her, then her silence will not show consent because of the principle of "Yitzrah Albeshah" (Kesuvos 51b). Therefore, he must explain that he wants to make a Kidushin beforehand, so that her consent will show that she is indeed interested in Kidushin. That is why Rashi writes, "v'Amar Lah," he *said* to her, beforehand. That is why he must say "Hiskadshi Li," requesting her to agree to Kidushei Bi'ah, since the act has not yet been performed. He must say "b'Vi'ah Zu" since the act is not present and it is not clear what he intends to use as his act of Kidushin.

Nowadays, it is customary to perform Kidushin with Kidushei Kesef and still say explicitly "b'Taba'as Zo" ("with this ring"). According to what we have explained, the reason for this might be that we make the statement of Kidushin *before* giving the woman the ring, and therefore the man must specify what he will use to make the Kidushin so that it be clear that the wife understands that the Kesef (ring) is for Kidushin.

2b

QUESTION: The Gemara asserts that had the Mishnah said, "ha'Ish Koneh," we might have thought that a man can be Mekadesh a woman against her will. Therefore, the Mishnah says, "ha'Ishah Niknis," in order to teach that a woman can only be betrothed with her consent.

How can the Gemara suggest that it could be possible to be Mekadesh a woman against her will? It is obvious that a woman must consent to become married! Why would we have thought that such a thing is possible?

ANSWER: The RASHBA explains that the Gemara in Bava Basra (47b) says that if a person is forced to sell an item and he agrees under coercion, the sale is valid and binding. This is because we assume that since the seller is receiving something (i.e. money) in return for the item, his consent was probably genuine, despite the fact that it was forced.

The Gemara there (Bava Basra 48b) cites a Machlokes Amora'im regarding whether this applies to Kidushin as well. If a man coerces a woman to accept Kidushin from him, is the Kidushin valid? Mar bar Rav Ashi rules that the Kidushin is *not* valid. Since the Mekadesh acted improperly, the Rabanan were Mafki'a (removed) the Kidushin.

Our Sugya, explains the Rashba, is following the opinion of Mar bar Rav Ashi and is stating that the Mishnah writes "ha'Ishah Niknis" instead of "ha'Ish Koneh" in order to teach this Halachah, that if a woman consents to Kidushin under duress, the Kidushin is not valid.