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Kidushin, 18

1) THE PROOF THAT A NOCHRI INHERITS FROM HIS FATHER

QUESTION: The Gemara proves that a Nochri inherits a Yerushah from his father mid'Oraisa from the verse that says that Hashem gave Har Se'ir to Esav as a Yerushah (Devarim 2:5). The Gemara rejects this proof, saying that perhaps a Jewish apostate (i.e. Esav) is different than a Nochri, and a Nochri does not have a Yerushah, as the Rosh explains it, "A Jew who sinned is still a Jew." The Gemara therefore cites another verse to prove that a Nochri inherits from his father.

If the Gemara considers Esav a Jew, then why does the Gemara initially think that we can prove from Esav's inheritance that a Nochri has Yerushah? (Although the Rishonim and Acharonim discuss whether the Avos had the status of Bnei Noach or the status of Bnei Yisrael (see PARASHAS DERACHIM #1, and RAMBAN, end of Parshas Emor), nevertheless it does not seem that the Gemara's original proof is based on considering the Avos to be Bnei Noach, since it brings its proof specifically from Esav and not from any of the Avos. The Ramban, in fact, cites this Gemara to prove that the Avos did have a status of Bnei Yisrael.)

Second, why does the Gemara indeed consider Esav to be a Jew? Are all of his descendants also considered Jews? And if his descendants are not Jews because he was married to Nochriyos, then how can he bequeath a Yerushah to his children, even if he himself was a Jew? They should not be able to inherit from him because they were not Jews and thus they are unable to inherit from him! (MAHARIT, RASHASH)

ANSWERS:

(a) The REMA MI'PANO (Ma'amar Chikur Din, end of 2:22) writes that certainly Esav was not a Jew. The Gemara's initial proof was correct. When the Gemara rejects the proof saying that perhaps Esav was a Jew, it is merely rejecting the proof with any slight refutation ("Dechiyah b'Alma").

We may add that the Gemara might have been alluding to the logic that Rava uses at the end of the Sugya. Rava suggests that even if a Nochri does not have Yerushah, perhaps those closely related to Avraham Avinu were granted a Yerushah out of deference for Avraham Avinu. When the Gemara says that Esav was a Jewish apostate, it is saying that a Nochri grandson of Avraham might have been given a Yerushah out of deference for Avraham. The Gemara therefore proves from Lot that a Nochri is Yoresh, for his relation to Avraham was more distant than Esav's relation.

(b) How does the Gemara understand the verse that says that Har Se'ir was a Yerushah for Esav? Does it mean that Esav bequeathed it to his children, or that Esav himself inherited from his father? The ROSH explains that it means that Esav gave Har Se'ir to his children as a Yerushah. However, Rashi on the Chumash on this verse explains that Esav received it as a Yerushah from his father, Yitzchak. According to Rashi, we may explain that the Gemara means that when Esav received Har Se'ir, he still had the status of a Yisrael. The reason is as follows:

The BRISKER RAV (Parshas Toldos) explains that Esav was not cast off from Klal Yisrael the same way that Yishmael was. Yishmael never had a role in Klal Yisrael. From the start he was considered to be "Ben ha'Amah," the son of a maidservant -- the child of Hagar and not the child of Sarah. Esav, on the other hand, had the potential to become part of Klal Yisrael, because Hashem told Avraham, "b'Yitzchak Yikarei Licha Zera" (Bereishis 21:12) -- *part* of Yitzchak's progeny will be considered your children, but not all of them ("'b'Yitzchak' v'Lo Kol Yitzchak"). Hashem, though, did not inform Avraham Avinu which part of his progeny would be his spiritual heir. Only later would it be determined which son would be the spiritual heir of Avraham Avinu. Yitzchak was given two lands to bequeath to his children: Eretz Yisrael to the one who would be Avraham's spiritual heir, and Har Se'ir to the other one. At the time that he would give the Berachah to his first-born son, he would then determine that that son would receive Eretz Yisrael and would be the spiritual heir of Avraham. That is why Rivka found it necessary to intervene and to ensure that Yakov received the Berachah making him the spiritual heir of Avraham.

Hence, at the moment that Esav received Har Se'ir, it was still not yet determined that he was not a Ben Yisrael. It was only after that moment that he was chosen to be left out from the nation of Yisrael, due to his apostasy. That is why the Gemara says that he was able to receive Har Se'ir as a Yisrael Mumar, a Jewish apostate, since it was only after he received it that he lost the status of a Ben Yisrael. (M. Kornfeld)

QUESTIONS: The Beraisa teaches that an Eved Ivri has certain Halachos that do not apply to an Amah Ivriyah: he goes free after six years, he goes free at Yovel, and he goes free at the death of his master. The Gemara asks why these Halachos do not apply to an Amah Ivriyah; the Mishnah (14b) itself implies that they *do* apply to an Amah Ivriyah! The Gemara answers that the Beraisa is referring to an Amah Ivriyah who was married through Yi'ud. We might have thought that the Halachos of Amah still apply to her, and therefore she leaves the husband at six years or at Yovel. Therefore, the Beraisa teaches that she does not leave at six years or at Yovel.

RASHI explains that when the Gemara says that the Halachos of going free at six years and at Yovel might apply to an Amah Ivriyah who did Yi'ud, it means that if she wants to leave her husband at six years or at Yovel without a Get, then she may do so.

(a) Why does Rashi write that if she "wants" to leave her husband at six years or Yovel, then she may? If, as the Gemara says, we might have thought that Yi'ud does not affect the Halachos of going free at six years and at Yovel, then she should be required to leave at six years or at Yovel, and not only if she wants to leave! (TAL TORAH; DEVAR SHMUEL in the name of RAV SHMUEL ROZOVSKY)

(b) Why does the Beraisa state that an Amah Ivriyah is not freed with the death of the master after Yi'ud? The death of the master should certainly set her free, since the master is her husband, and a wife is released at the death of her husband! (TOSFOS RID, BEIS MEIR)

ANSWERS:

(a) The TAL TORAH answers that if she would go free after six years whether or not she wants to, then the Kidushin of Yi'ud would not have taken effect in the first place, since it would be a "Kidushin l'Zman," a temporary Kidushin, which does not take effect (see Nedarim 30a). However, it is not clear if this would apply to Yi'ud, since Yi'ud is a Gezeiras ha'Kasuv and is not a normal form of Kidushin.

Perhaps Rashi was bothered by the words of the verse (Shemos 21:11) which imply that only if there was no Yi'ud does the Amah go free without having the master free her. Rashi therefore explains that the Gemara thought that if she did not do Yi'ud, then she goes free whether she wants to or not. But if she did do Yi'ud, then although she may remain his wife if she prefers, she also may opt to end the marriage.

(b) The TOSFOS RID answers that a Meyu'edes does not go free with the death of the master if she was Meyu'edes to the *son* of the master. Alternatively, he suggests that she does not go free with the death of the master if he dies without children, because then she falls to Yibum.

The Acharonim suggest that there might be a printing mistake in the Beraisa. Why does the Beraisa leave out the Halachah that an Eved Ivri goes free with Gira'on Kesef (ATZMOS YOSEF)? In the Sifri, the Beraisa indeed omits the death of the master and includes Gira'on Kesef. This answers our question as well. (RASHASH, BEIS MEIR)

18b

QUESTION: The Gemara discusses whether Yi'ud creates only Erusin or also Nisu'in. The Gemara proves from a Beraisa -- which states that a "widow" may be sold as an Amah Ivriyah by her father -- that Yi'ud makes Erusin and not Nisu'in. The proof is based on the fact that a father may not sell his daughter as an Amah after he accepted Kidushin for her, and, hence, if he is selling his daughter as an Amah, then he must not have accepted Kidushin for her. How, then, is she a widow? The only way she can be a widow if the father did not marry her off is if she was previously sold as an Amah and the master did Yi'ud with her. Even though after a normal Kidushin the father may not sell his daughter as an Amah, Kidushei Yi'ud is not considered a normal Kidushin (according to the opinion that the Yi'ud does not take effect retroactively from the time that the master gave money to her father). Therefore, the father may sell her after Yi'ud (when she returns to his domain after the death of her master/husband). If Yi'ud makes Nisu'in, then the daughter would not return to her father's domain after the death of her master/husband. It must be, therefore, that Yi'ud creates only Erusin.

The Gemara questions this proof by saying that perhaps Yi'ud does create Nisu'in, but the Nisu'in is not the same as a normal Nisu'in. Just as we say that if Yi'ud makes Erusin, the Erusin is not the same as normal Erusin and the father may sell her as an Amah after the Erusin of Yi'ud, so, too, perhaps Yi'ud makes Nisu'in, but that Nisu'in is different than a normal Nisu'in and thus the father may sell her as an Amah after the Nisu'in of Yi'ud!

The Gemara rejects this argument by saying that although there can be different types of Erusin, there cannot be different types of Nisu'in. After any type of Nisu'in, the father no longer has any rights over the daughter.

RASHI explains that after Erusin, the daughter is still in her father's Reshus. The only reason the father may not sell her is because of the Gezeiras ha'Kasuv that he cannot sell her after accepting Kidushin for her. When the master does Yi'ud without asking the father, perhaps the father still is able to accept Kidushin for her. Nisu'in, on the other hand, completely removes the daughter from the father's domain, and thus the father no longer has any right to sell her, if Yi'ud makes Nisu'in, since she is not in his domain.

What did the Gemara think initially when it attempted to compare Nisu'in to Erusin? It is obvious that Nisu'in is different than Erusin because it removes her from her father's domain, and, therefore, if Yi'ud creates Nisu'in, the father may no longer sell her as an Amah Ivriyah!

ANSWER: Why is it that a father may not sell his daughter after he accepted Kidushin for her? There are two ways to understand this Halachah. One way of understanding it is that there is a Gezeiras ha'Kasuv which limits the father's right to sell his daughter as an Amah to specific circumstances. (In this case, this Halachah may be understood as follows. The Torah allows the father to sell his daughter as an Amah, because it is to her advantage as well to have someone provide for her and to take care of her needs if the father is unable to do so. If the father marries her off, it shows that he considers her mature enough to take care of herself and to manage a household. Accordingly, the daughter will no longer derive benefit from being sold as an Amah, since she does not need someone to take care of her.)

Another way of understanding it is that just as Nisu'in removes the daughter from the father's domain, so, too, Kidushin can remove the daughter from the father's domain to a limited extent. Kidushin removes the daughter from the father's domain only with regard to selling her as an Amah (and with regard to Hafaras Nedarim).

Rashi's words (DH bi'Shlama) imply that he understands this Halachah the first way we suggested. TOSFOS (DH bi'Shlama) seems to understand this Halachah in the second way we suggested.

HE'OROS B'MASECHES KIDUSHIN suggests that even according to Rashi, the Gemara initially understood that Erusin is a form of Yetzi'ah, exiting, from the domain of the father, just like Nisu'in. That is why the Gemara thought that we can compare Nisu'in to Erusin. If the Erusin of Yi'ud is not a Yetzi'ah, then the Nisu'in of Yi'ud is not a Yetzi'ah. According to Rashi, the Gemara answers that the reason why the father may not sell his daughter after Kidushin is not because Kidushin is a type of Yetzi'ah that removes her from his domain, but because of the Gezeiras ha'Kasuv that limits the conditions under which he may sell her. Hence, Erusin that is achieved through Yi'ud might be different, since the father did not accept Kidushin for her (and thus he did not show that he considers her mature enough to become married).

According to Tosfos (ibid.), the Gemara answers that even if Erusin is a Yetzi'ah, it is a "Chidush" to say that it is considered a Yetzi'ah with regard to selling her, since it is not a Yetzi'ah in any other way. Since it is a Chidush, we can limit it to the very specific case of when the father accepted Kidushin for her, and we can exclude Yi'ud. When Nisu'in takes her out of her father's domain, on the other hand, it is not a Chidush since it removes her from his domain entirely, and therefore it should also take her entirely out of his Reshus when it is achieved through Yi'ud. (See Tosfos.)

The Gemara discusses whether Yi'ud creates only Erusin or also Nisu'in. Why should the Yi'ud accomplish Nisu'in more than any other act of Kidushin? After all, the Gemara (19b) says that when the master performs Yi'ud, he merely says to the Amah, "Harei At *Mekudeshes* Li," the standard formula for Kidushin!

ANSWER: The Gemara thought that Yi'ud should accomplish Nisu'in because Nisu'in is accomplished by an act of bringing the wife into the husband's household. Since the Amah is already living in the master's household, as soon as he is Mekadesh her Nisu'in -- as well as Erusin -- should take effect at that moment. On the other hand, since she did not enter the master's household originally in order to be his wife, perhaps she still requires a Chupah (see SHITAH LO NODA L'MI, and see PNEI YEHOSHUA and CHIDUSHEI HA'GRA'CH).

The PNEI YEHOSHUA adds that the verse (Shemos 21:10) supports the opinion that Yi'ud creates Nisu'in, because after mentioning Yi'ud, it tells us that the master must provide the wife with "She'er, Kesus, and Onah," which are the obligations of Nisu'in.