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Kidushin, 53

1) BEING "MEKADESH" A WOMAN WITH "MA'ASER SHENI"

QUESTION: The Mishnah (52b) quotes Rebbi Meir who maintains that when a man is Mekadesh a woman with fruits of Ma'aser Sheni, the Kidushin does not take effect. The Gemara teaches that Rebbi Meir's source is the verse, "v'Chol Ma'aser ha'Aretz... la'Hashem Hu" -- "and all Ma'aser from the land... shall be for Hashem" (Vayikra 27:30).

RASHI on the Mishnah (52b, DH b'Ma'aser Sheni) explains that Rebbi Meir maintains that Ma'aser Sheni is "Mamon Gavohah" (as the Gemara on 54b states explicitly). This implies that Ma'aser Sheni is not the property of the person who separated the Ma'aser, but rather it belongs completely to Hekdesh. If the Ma'aser belongs completely to Hekdesh, then why does the Gemara express that Ma'aser Sheni cannot be used for Kidushin as a specific rule that is derived from the verse, "La'Hashem" -- "'La'Hashem' v'Lo l'Kadesh Bo Ishah?" The Gemara should have said a more general, all-encompassing rule, such as "'La'Hashem' v'Lo Mamon Hedyot," and we would have known that it cannot be used for Kidushin since it is not considered the property of the bearer!

ANSWER: RABEINU CHAIM HA'LEVI of Brisk (cited by the GRIZ in Zevachim 6a) makes a similar observation in the words of the RAMBAM in reference to our Gemara. The Rambam (Hilchos Ishus 5:4) writes that if a man "was Mekadesh a woman with Ma'aser Sheni, whether by accident or on purpose, she is not Mekudeshes, because he is not to use it for any of his personal purposes until it has been redeemed, as the verse says, 'La'Hashem Hu'." The Rambam should have said that the reason is because the Ma'aser does not belong to him until he redeems it! The wording of the Rambam implies that there is a specific prohibition to use Ma'aser Sheni for one's personal needs.

Rav Chaim concludes from this that, in fact, the Ma'aser Sheni belongs to the owner, and, monetarily, it is considered his property. The verse of "La'Hashem" merely limits the owner's ability to use it, preventing him from using it in any way that he wants. It is only his property to perform with it the Mitzvah of eating Ma'aser Sheni. He is restricted from doing anything else with it.

Rav Chaim explains that the practical difference would be in a case of Yerushah, inheritance. When a man dies with fruits of Ma'aser Sheni in his possession, do his children inherit his Ma'aser Sheni? If it is not considered his property at all, then his children should not inherit it. If it is considered his property, and there are just regulations with regard to how he can use it, then his children should inherit it.

According to Rav Chaim, the wording of our Gemara is very precise. The exclusion learned from the verse is not an exclusion in the ownership of the Ma'aser, but rather it is an exclusion in the types of usage that is permitted. That is why the Gemara says that it is "La'Hashem" and not "l'Kadesh Bo Ishah" -- it is not saying *who owns* the Ma'aser Sheni, but rather it is teaching for what usage the owner is permitted to use it!

53b

OPINIONS: Rebbi Meir in the Mishnah (52b) states that when a man is Mekadesh a woman with fruits of Ma'aser Sheni, the Kidushin does not take effect, whether he gave her the fruits b'Shogeg (not knowing that they were fruits of Ma'aser Sheni), or whether he gave her the fruits b'Mezid (knowing that they were fruits of Ma'aser Sheni). Rebbi Yehudah argues and says that if he gave her the fruits b'Shogeg, the Kidushin does not take effect, but if he gave them b'Mezid, the Kidushin does take effect.

In the next case of the Mishnah, when a man is Mekadesh a woman with an item of Hekdesh, Rebbi Meir rules that the Kidushin *takes effect* when he gave her the Hekdesh *b'Mezid*, but it does *not* take effect when he gave it to her *b'Shogeg*. The Gemara here asks what the difference is between the respective rulings of Rebbi Meir and Rebbi Yehudah in each case, the case of being Mekadesh with Ma'aser Sheni and the case of being Mekadesh with Hekdesh.

Rebbi Yakov quotes Rebbi Yochanan who said that "in one case [of Shogeg], the woman does not want it, and in the other case [of Shogeg], neither [the man nor the woman] wants it." Rebbi Yakov says that Rebbi Yochanan's statement can be interpreted to mean that in the case of "Shegegas Ma'aser," neither the man nor the woman would have wanted the Kidushin to take effect had they known that the fruits were Ma'aser Sheni. The woman does not want it because she does not want the hassle of bringing the fruits to Yerushalayim, and the man does not want it because he does not want "an accident to happen on the way," while the woman is bringing the fruits to Yerushalayim.

RASHI (DH Mishum Onsa d'Orcha) gives two explanations for why the man would not want the Kidushin to take effect if he knew that the fruits were Ma'aser Sheni, since he does not want "an accident to happen on the way." First, Rashi explains that since the fruits are not worth a Perutah except within Yerushalayim, he remains responsible for them until she arrives in Yerushalayim. Since a woman is vulnerable to accidents, it is likely that something will happen to the fruits and he will have to pay for them.

Second, Rashi explains that even if the man does not accept responsibility for the fruits, he still would not want to give her Ma'aser Sheni for Kidushin, because if she loses them or some other accident occurs, she will be upset at him that he was Mekadesh her with something of no value.

There is a difference of opinion among the Rishonim with regard to when the Kidushin actually takes place according to the first explanation in Rashi.

(a) TOSFOS maintains that since the money of Ma'aser Sheni only has value in Yerushalayim, the Kidushin only takes effect once the woman reaches Yerushalayim and can now use the money to purchase food there.

(b) The RITVA maintains that since, in Yerushalayim, the money of Ma'aser Sheni has the value of a Shaveh Perutah, we may already judge the Ma'aser Sheni as having that value even before entering Yerushalayim. Therefore, the Kidushin takes effect right away.

According to these different ways of understanding Rashi's explanation, the acceptance of responsibility (Kabalas Achrayus) of the man who is Mekadesh the woman takes on a different meaning. According to Tosfos, Kabalas Achrayus simply means that since the Kidushin has not yet taken effect, if the money is lost before entering Yerushalayim, the man will have to replace it with other money of Kidushin. If he does not replace it with other money, then the Kidushin cannot take effect, because at the time that it should have taken effect, there was no Kesef of Kidushin present.

According to the Ritva, in contrast, the Kabalas Achrayus refers to an added obligation that the man accepted upon himself. He did this in order for the woman to have peace of mind and not worry about not being able to use the money that she is receiving for the Kidushin.