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Kidushin, 47

1) USING A LOAN TO EFFECT A SALE

QUESTION: Rav rules that when a man is Mekadesh a woman with a Milvah (loan) that she owes to him, the Kidushin is not valid. The reason the Kidushin is not valid is because when the man gave the money to the woman originally, as a loan, it was given to her in order to be spent -- "Milvah l'Hotza'ah Nitnah" -- and thus it became *her* money (and not *his* money that is in her hands). The Gemara cites a Machlokes Tana'im whether the Kidushin is valid when a man is Mekadesh a woman with a loan. The Tana'im agree that a sale can be effected with a loan (if Reuven lent money to Shimon, and now Reuven wants to buy a field from Shimon, he can say that the money that he lent to him is now being given to him as payment for the field). The Gemara asks that if "Milvah l'Hotza'ah Nitnah," then the sale should not be valid, just like Kidushin performed with a loan is not valid.

The Gemara clearly teaches that Kidushin and Mechirah (a sale) are comparable to each other. If giving a loan is considered an act of giving money, then it can be used for both Kidushin and for Mechirah, and if we find that it cannot be used for Kidushin, then we can infer that it is not considered Kesef and cannot be used for any type of Kinyan.

The RAMBAM (Hilchos Ishus 5:13) rules that when a man is Mekadesh a woman with a loan, the Kidushin does not take effect. However, elsewhere (Hilchos Mechirah 2:4) the Rambam rules that one *may* purchase land with the money of a loan! This seems to be in direct conflict with the Gemara here.

ANSWER: The MAGID MISHNAH refers to the Gemara in Bava Metzia (46b) which apparently argues with the Gemara here and states clearly that the money of a loan may be used for a Mechirah, a sale. The Rambam understood that the Gemara in Bava Metzia is not arguing that the principle of "Milvah l'Hotza'ah Nitnah" (the money of a loan is considered to be consumed) applies in all cases; it will agree that the principle applies for Kidushin, such that Kidushin cannot be effected with the money of a loan.

The AVNEI MILU'IM (28:16) explains that the Rambam's ruling is based on a basic difference between an ordinary act of Kinyan and a Kinyan that is performed in order to effect Kidushin. A regular Kinyan Kesef has only one element: its monetary value. If something that has value is being transferred from one person to another, we can view it as an act of Kinyan. The Gemara in Bava Metzia views the Shi'abud that exists as an item of monetary value, which in turn can be used for making a Kinyan (see KETZOS HA'CHOSHEN and other Acharonim who understand that one is Koneh with a Shi'abud). A Kinyan of Kidushin, however, involves more than just exchange of monetary value. The Rambam states that a Milvah cannot be used for Kidushin, because "there is nothing here that is lasting that could provide her now with Hana'ah (pleasure), since the money [of the loan] has already been spent, and its Hana'ah is no longer present." That is, in the Kinyan of Kidushin, there is an additional requirement that the woman receive Hana'ah, and not just monetary value. Since the loan has already been used, even though we can view the Shi'abud as having monetary value, it is nonetheless lacking in any new element of Hana'ah. On the contrary, the Hana'ah of that money has already been used. (See the Avnei Milu'im there who suggests that the reason why an additional element of Hana'ah is necessary is because without it the act of Kidushin is a "Genai," disgrace, to the woman, as the Gemara mentions earlier.) (A. Kronengold)

QUESTION: Rav rules that when a man is Mekadesh a woman with a Milvah (loan) that she owes to him, the Kidushin is not valid. The reason the Kidushin is not valid is because when the man gave the money to the woman originally, as a loan, it was given to her in order to be spent -- "Milvah l'Hotza'ah Nitnah" -- and thus it became *her* money (and not *his* money that is in her hands). The Gemara cite proofs for and against Rav's ruling. Why does the Gemara not cite proof for his ruling from the Mishnah (46a)? The Mishnah says that when a man is Mekadesh a woman by giving her dates, and the woman eats each date (which, by itself, is not worth a Shavah Perutah), she is not Mekudeshes because each date becomes a loan, and thus this should be clear proof that when a man is Mekadesh a woman with a loan the Kidushin does not take effect!

ANSWERS:

(a) The RITVA offers two answers. First, he says that perhaps when the end of the Mishnah says that if she eats the dates she is not Mekudeshes, it is referring to the Reisha, the case in the beginning of the Mishnah, as Rav himself (46a) explains the Mishnah.

(b) Alternatively, the Ritva says, we can differentiate between the money of a Milvah that has already been used by the borrower, and the money of a Milvah that has not yet been used. The Mishnah is referring to a case in which the woman already consumed the dates (comparable to spending the money of a loan). In such a case, we can understand that there is no money present with which a Kinyan of Kidushin can be performed. Rav adds that even if the money that was lent is still present and has not yet been used for a Kinyan, since it has already been handed over to the borrower for the purpose of being spent and used in accordance with the borrower's discretion, it is considered entirely the property of the Loveh and can no longer be used for Kidushin. (A. Kronengold)

47b

QUESTION: Rav Huna rules that one who borrows a tool (such as an ax) from his friend does not acquire it until he uses it (such as to cut wood), and, until he uses it, the lender may take it back.

If the borrower is using the ax, then it must be that he already picked it up in his hands and performed an act of Meshichah on the item. Why, then, does he not acquire the item through that Kinyan? Meshichah is a valid form of Kinyan for any item of Metaltelin! Hence, even if he has not yet used the ax by cutting something with it, the lender should not be able to take it back since the borrower was Koneh it through Kinyan Meshichah! Conversely, if for some reason Meshichah is not a valid Kinyan for an item that is being borrowed, then how does using the object (such as for cutting) create a Kinyan?

ANSWER: The RITVA explains that what is being acquired through She'eilah, borrowing, is not the actual body of the item, but rather the usage or service that the item provides. The act of Meshichah only makes a Kinyan on the actual body of the item. The usage of the item, though, is an intangible asset, and the borrower cannot be considered to be handling that intangible asset when he does Meshichah on the item. Therefore, Meshichah is not a valid form of Kinyan for She'eilah, borrowing, which involves only the transfer of the right of usage to the borrower, and not the actual body of the item itself.

The Ritva explains that the act of cutting, or using the item that is being borrowed, is also not a valid form of Kinyan on the intangible asset of usage. However, the Rabanan made a Takanah that using the item serves as a Kinyan. Although mid'Oraisa the lender could change his mind at any moment and take back the item, the Rabanan instituted that this form of Kinyan is effective in order to prevent severe difficulties from arising in normal transactions of business and labor. They instituted that this Kinyan finalizes the agreement between the lender and the borrower.

The MACHANEH EFRAIM (Hilchos Sechirus 1) is of the opinion that using an object for its regular use is a legitimate Kinyan even mid'Oraisa. Since an act of Kinyan is defined as an act that shows ownership, the act of a Kinyan is a subjective type of act, and each object must be judged according to its usage. (See also KETZOS HA'CHOSHEN 189:1.) (A. Kronengold)