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Kidushin, 62

1) "KA'SAVUR HAYISI"

QUESTION: The Mishnah states that when a man is Mekadesh a woman and then says, "I thought that she was a Kohenes, but she is actually a Leviyah," the Kidushin is valid, because she did not mislead him in any way. The Mishnah then states that when a man is Mekadesh a woman with a condition such as, "You are hereby Mekudeshes to me for after I convert," the Kidushin is not valid.

The previous Mishnah (61) discusses the Halachos of making a statement with a Tenai (condition). This Mishnah, and the following Mishnah, discuss different types of Tenai and when they take effect. Accordingly, the first Halachah of the Mishnah here, "ka'Savur Hayisi," seems out of place. The subject of that case is not the Tenai that was stipulated, but the intention of the man who was Mekadesh the woman! It should have been included earlier in the Masechta (50a-51b) where the Gemara discusses the intention of the Mekadesh. Why is it included in the Mishnah here?

ANSWER: The RAN explains that there are certain cases in which even Rebbi Meir agrees that an explicit "Tenai Kaful" is not necessary. When the intention of the person performing the act is clear to everyone, and there is no doubt as to why the act is being done, then the Halachos of Tenai are not necessary (see also 49b, TOSFOS DH Devarim). This Mishnah is teaching us that "ka'Savur Hayisi" is not one of these cases. We do not assume that the Mekadesh wanted specifically a Kohenes or an Ashirah; rather, the Kidushin takes effect even if the woman is not a Kohenes or Ashirah. If the Mekadesh wanted to make the Kidushin contingent upon those factors, then he would have had to make a statement of Tenai with all of the Halachos of Tenai, as discussed in our Perek.

62b

QUESTION: The Gemara says that any action which is "b'Yado," in the hands of a person to do (i.e. it is within his ability to do it), is considered as having been done already. Rebbi Aba bar Mamal questions this principle from the case of a master who is Mekadesh his Shifchah Kena'anis for after he sets her free. According to the principle of "b'Yado," she should become Mekudeshes to him right away, since it is within his ability to free her! The Gemara answers that the case of a Shifchah Kena'anis is different, because in that case the Shifchah initially has the status of a Behemah, and after she is freed she has the status of "Da'as Acheres," an independent mind.

The Gemara, however, does not retract its initial understanding of the case of one who frees his Eved or Shifchah. The freeing of the Shifchah is considered "in the hands of" the master and does not depend on anyone else (in contrast to the case of conversion, which is not in the person's hands because it depends on three others agreeing to witness his conversion). The only difference is the change of status that is occurring to the woman -- from the status of a "Behemah" to the status of a "Bar Da'as." Why should that change, though, affect the logic of "b'Yado?"

ANSWER: The logic of "b'Yado," as understood by many Acharonim, makes the action that is "b'Yado" to be considered to have already been performed. Since all of the circumstances necessary to perform the action are present, and the person can easily perform the act, it is considered as already done. (See TOSFOS RI HA'ZAKEN in the following Sugya of "l'Achar she'Agarshech" who states clearly that "b'Yado" is considered "as if it was already done.")

This does not mean, though, that we judge the act to have been done in reality (b'Metzi'us). The status of Terumah cannot take effect on fruits as long as all of the fruits are still mixed together, even though it is in the owner's hands to separate the fruits. Similarly, Kidushin cannot take effect as long as the Mekadesh is still a Nochri, even though it is in his hands to convert. The desired effect cannot take place until the act has been done in actuality. Nevertheless, the logic of "b'Yado" allows us to view the act to have been done with regard to considering all of the necessary conditions to be in existence (that is, when the act is a condition for something else, we may view the act as having been done already and thus the condition as having been fulfilled, so that the other thing can take effect).

With this understanding of the concept of "b'Yado," it is clear that certain things are so far removed and non-existent at the time of the act (for which the thing that is "b'Yado" is a condition) that "b'Yado" is not enough to consider the condition as having been done already. The state of a woman who is a Shifchah is far removed from the state of a woman who is free. A Shifchah is compared to a Behemah, while a free woman is a "Bar Da'as." In the Shifchah's present state, the Shifchah has no element of freedom nor anything that comes with freedom. The principle of "b'Yado" can only resolve technical problems that make the act one that is "Lo Ba l'Olam" or "Mechusar Ma'aseh." If, however, there is an intrinsic lack of existence altogether of the act (i.e. it is not an act that is somewhat existent and which is merely "Mechusar Ma'aseh," but it is completely "Eino ba'Olam"), then "b'Yado" cannot create something ("Yesh me'Ayin") that does not exist.

QUESTION: The Gemara says that any action which is "b'Yado," in the hands of a person to do (i.e. it is within his ability to do it), is considered as having been done already. The Gemara questions this from the ruling of Rebbi Oshiya, who said that when a man gives a Perutah to his wife and says, "You are hereby Mekudeshes to me for after I divorce you," the Kidushin does not take effect after the divorce. According to the principle of "b'Yado," she should become Mekudeshes to him right after the divorce, since it is within his ability to divorce her and remarry her! The Gemara answers that although it is within his ability to divorce her, it is not within his ability to remarry her (since she must consent to it).

While it is true that the man cannot force the woman to become Mekudeshes to him, in this case the woman has already given her explicit consent! When she accepts the Kidushin that will take effect after the divorce, she is agreeing to the Kidushin. Since there is explicit consent on behalf of the woman, and since the divorce itself is within the man's ability to perform, why is she not Mekudeshes? (See AVNEI MILU'IM 43:1.)

ANSWER: The TOSFOS RI HA'ZAKEN explains that we cannot use the consent that the woman expresses *today* as evidence that she will also consent to the Kidushin *after* the divorce has taken effect. The logic for this is that today, she is still bound to her husband and therefore she consents to the marriage. In contrast, when she will be on her own (following the Get), she might have a completely different attitude and not want to be married. Therefore, we cannot consider there to be any consent on the woman's part to the Kidushin that the man wants after the divorce.

However, if the divorce is not considered "Mechusar Ma'aseh" (lacking an act) because it is in the husband's hands to perform, and "b'Yado" makes it as if the Get has already been given to the woman, then the act of Kidushin is also happening right now! Why, then, should we take into account the woman's change of mind *later*, if right *now* she consents? Why is this case different than any other case of Kidushin, in which the consent of the woman at the time of the Kidushin is all that is needed for the Kidushin to take effect, regardless of whether or not she changes her mind afterwards?

We mentioned earlier (see previous Insight) that even though the logic of "b'Yado" can be used to remove the problem of "Mechusar Ma'aseh," still, in practice, the act has not yet been done. "B'Yado" suffices only to consider an act as a "Davar she'Ba l'Olam," but still nothing can take effect until the act has actually been performed. Since, for all practical matters, the Kidushin is taking place only after the divorce, the consent necessary for the Kidushin to take effect must occur at that time. (A. Kronengold)