The Israel Koschitzky Virtual Beit Midrash

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The Israel Koschitzky Virtual Beit Midrash

 

GEMARA KIDDUSHIN

 

 

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This weeks shiurim are dedicated in memory of Israel Koschitzky zt"l, whose yahrzeit falls on the 19th of Kislev. 
May the worldwide dissemination of Torah through the VBM be a fitting tribute to a man whose lifetime achievements exemplified the love of Eretz Yisrael and Torat Yisrael.

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Shiur #07: Chuppa

Based on shiurim by Rav Mordechai Friedman

 

 

            The gemara (Kiddushin 5a) relates a dispute regarding the use of chuppa, standing under the marriage canopy, to effect marriage.  Rav Huna says that chuppa, although normally used to create nissuin, can also be used to initiate eirussin. [The halakhic marriage process entails eirussin (=kiddushin, betrothal), and only then the final stage of nissuin, marriage.]  He bases this premise on a kal va-chomer [a fortiori]: We see that kinyan kesef (monetary acquisition) can't finalize marriage (i.e. create nissuin), yet, it can initiate it (i.e. create eirussin).  So chuppa, which we know can create nissuin, surely can create eirussin.

 

            Rava (5b) refutes this kal va-chomer by pointing out that chuppa can only finalize marriage after, or in conjunction with, a previous kiddushin.

 

            When we see this gemara we might feel uncomfortable with Rav Huna's loose application of the kal va-chomer.  Intuitively, we might feel that it is not valid to compare dissimilar types of kinyanim, methods of acquisition.  Without going into a full explanation of such usage of the kal va-chomer, let me point out that in the first few pages of Kiddushin, the gemara employs this method on numerous occasions.  (For example the gemara entertains the idea that through a kal va-chomer we might derive that you can acquire a shifcha using kinyan bi'a.)

 

            Yet, this intuitive objection seems to be exactly what Rava is pointing out.  Does he reject the entire system of applying kal va-chomer to dissimilar kinyanim?

 

            Abbaye answers Rava's objection by slightly changing the wording of the kal va-chomer, thereby retaining the assumption that Rav Huna's type of kal va-chomer is valid in principle.

 

            What, in essence, is the true machloket between Rav Huna (and Abbaye), and Rava?

 

            A better understanding of the nature of chuppa will help us understand both Rava's and Rav Huna's opinions.

 

            Until now, we have assumed that chuppa is a kinyan, consisting of a ma'aseh kinyan (acquisitory act) which triggers or stimulates the gemirut da'at, resolution of intent, of the man and woman.  In truth, this might not be the case.  R. Chaim Soloveitchik (Hilkhot Yibbum 4:16) points out the difference between what he calls "da'at", resolution, and "kavana", intent.  "Kavana" is the mere consciousness of doing any particular halakhic act, while "da'at" is a person's willful decision to effect a "chalot", a change in halakhic status.  In kinyanim, R. Chaim holds, this "da'at" or "gemirat da'at" plays the central role of causing the chalot.  It is the ability to anticipate the abstract concept of a new halakhic status which differentiates a mature intellect from that of a child's (katan), and hence, halakhically, a minor does not have "da'at".

 

            There are, however, many instances in halakha where a chalot can occur without da'at.  Specifically, there are areas where once all the halakhic requirements are fulfilled, the Torah itself, as it were, causes the chalot.  R. Chaim gives the halakhic status of a sefer Torah as an example.  The prerequisites are writing with ink, on parchment, and mental recognition that you are writing a Torah scroll and God's Holy names.  If those conditions are present, the scroll takes on the halakhic status of a sefer Torah.  The man's da'at, willful decision, that there occur a change in status is not an ingredient in this halakhic equation.  [This example does not appear in print, but the basic ideas do appear in Rav Chaim on the Rambam, Hilkhot Tefillin 1:15.]

 

            [A nafka mina (ramification) between these two paths to establishing a chalot, is the ability to make the change in status conditional (= tnai).  A scribe cannot write a scroll and suspend on some condition the chalot shem sefer Torah, or shem Hashem, the application of the halakhic status of a Torah scroll to this parchment.]

 

            There are, then, two different paths to a change in status, one through man's da'at, the other without.  The term "kinyan", however, refers only to the former.  For example, R. Chaim claims that the act of chalitza, releasing a childless widow from the halakhic connection to her brother-in-law, does not require da'at.  As a result of R. Chaim's above understanding, he maintains that chalitza is not a "kinyan", but rather chalot effected by the physical ceremony together with intention - kavana - to do chalitza.

 

            We now come to a chiddush of R. Chaim on nissuin.  [ This idea appears in print only in Rav Yosef Dov Soloveitchik zt"l's hesped for the Brisker Rav entitled 'Ma Dodekh Mi-dod' in footnote 4.]  Nissuin falls into the same category as chalitza.  There is no specific trigger of gemirut da'at to cause the chalot nissuin; rather the very situation of chuppa, the state of living as man and wife, along with kavana to do nissuin, causes the chalot.

 

            This, now, casts chuppa in a new light.  We cannot categorize it as a kinyan, since it doesn't follow the form of act (ma'aseh)->gemirut da'at->chalot.

 

            This explains the gemara in Yevamot 107a which states that one cannot stipulate conditions in chuppa ("ein tnai be-chuppa").  Most Rishonim understand this to mean that the groom, although halakhically capable of making the chalot contingent to a condition, is assumed to have dissolved this condition upon consumation of marriage.  According to R. Chaim the gemara is straightforward.  When the chalot is not a result of gemirut da'at - a tnai cannot be stipulated.

 

            Additional support for this view of chuppa is brought by the Kehillat Yaakov (Kiddushin #15.)  In a responsum of Rashi cited by the Hagahot Mordekhai (Kiddushin Ch. 2, #546), an act of kiddushin was disqualified due to problems arising with the witnesses or the value of the ring.  Rashi ruled that although the kiddushin must be repeated, the chuppa, nissuin need not be.  He proves the fact that chuppa may precede eirussin with the following case.  The arranged marriage of an orphaned ketana (minor) by her mother must be repeated after she is a gedola (adult) - yet her chuppa need not be repeated.  This supports R. Chaim's view, because if chuppa were a kinyan, full da'at of an adult would be required.  The girl, a minor at the time of chuppa, could only supply kavana, but not da'at.  It must be that chuppa is not a kinyan, but rather a process which causes chalot without the need of da'at.

 

            [It would appear that the Arukh Ha-Shulchan sees nissuin in a similar way, in that he decides (Even Ha-Ezer 55:5) that chuppa does not require formal witnesses.]

 

            Now that we have established a new definition of nissuin, namely that it is not a kinyan, but rather an act which initiates the beginning of married life, we can understand our gemara.  Rava objects to Rav Huna allowing chuppa to accomplish eirussin.  For even if we accept the application of a kal va-chomer on dissimilar or inappropriate kinyanim, if we accept R. Chaim 's understanding, chuppa is not a kinyan at all.  Clearly a kal va-chomer from an act which is not a kinyan at all cannot prove the existence of a kinyan.

 

            How do we, then, deal with Rav Huna?  The simplest approach would be to assume that Rav Huna rejects R. Chaim's understanding and holds chuppa to be a full kinyan, needed to trigger the da'at in order to achieve the chalot nissuin.

 

            It is possible, however, to say that Rav Huna accepts R. Chaim's idea, and still accepts the use of chuppa as kinyan.

 

            Let us examine the three kinyanim of eirussin that are mentioned in the mishna: bi'a, shtar, and kesef.

 

            In an upcoming shiur on bi'a it will be shown that bi'a can be viewed as a qualitatively different type of kinyan than kesef and shtar.  We can say that bi'a relates more to the facet of eirussin called ishut (the intimate relationship of marriage) while kesef refers more to the aspect of kinyan.

 

            Kesef works as a typical kinyan where the act of transferring money triggers the gemirut da'at.  It is not unique to eirussin in its nature and its application is therefore very broad.

 

            Bi'a, on the other hand, is a specialized kinyan for marriage.  Its actual process relates specifically to the content of the new status it establishes.  Here, the da'at, the willful decision to establish the new state, naturally stems from the ma'aseh kinyan, which is a genuine marriage situation of bi'a.  We set the stage, the framework, and this in turn stimulates the gemirut da'at which causes the change in halakhic status (chalot).

 

            It is therefore possible that Rav Huna understood chuppa in the same light as R. Chaim (that it is not a kinyan at all) when applied to nissuin, and yet felt it would work for eirussin.  In eirussin where a kinyan is needed, chuppa can function similar to kinyan bi'a.  The gemirut da'at is the maker of the chalot, and situation of chuppa may stimulate the gemirut da'at, just as the situation of bi'a does.

 

            [This new application of chuppa to kinyan eirussin, similar to kinyan bi'a, might depend on a machloket Rishonim on what the precise process of chuppa actually is.  The mishna does not give us a description of chuppa, nor does the gemara.  There are two main definitions found in the Rishonim:

 

1.  Yichud - With nissuin in mind, the bride and groom enter a room in solitude in a situation that they could potentially do bi'a.

 

2.  Hakhnassa le-beito - With nissuin in mind, the groom leads the bride into his house.

 

            It would appear that this machloket is based on a dispute on the very essence of chuppa:

 

            It may be focused specifically on the new intimate relationship of the couple.  Thus yichud would imitate and initiate this status.

 

            On the other hand, chuppa might be a formal act of bringing the bride into the groom's household.

 

            It might be easier to see Rav Huna's 'kinyan' chuppa as parallel to kinyan bi'a according to the view that chuppa is yichud, where a situation of marriage is created as the beginning of the chalot.]

 

            In summary, we started with the need to understand the dispute between Rava and Rav Huna (and Abbaye) regarding the use of chuppa for eirussin.  We reviewed the inner workings of the various paths that lead to a chalot, a change in halakhic status.  We then tried to better our understanding of nissuin, and distinguished between the use of chuppa for eirussin and for nissuin.

 

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For Next Week's Shiur:

 

Amira be-kiddushin - The function of speech in the act of kiddushin.

 

Mekorot:

 

1. Kiddushin 5a "Tanu Rabbanan keitzad be-kessef ... chayshinan mi-derabbanan."

2. Rashi

3. Meiri [s.v. Ikkar kiddushei kessef]

4. Tosafot Rid [s.v. Ve'i ba'it eima natan hu ve-amra hi]

5. Ritva [s.v. Natan hu ve-amra hi sfeika]

6. Yad Rama [see Tur siman 27 (daf 49b in the Tur regular edition; page 242 in the Tur Hashalem)] s.v. Ve-im natan hu ve-amra hi ... ein asukkim be-oto inyan"] Mishneh La-Melekh [Hilkhot Ishut 3:2 until "u-lefi ze kasheh de-haTur"] Rambam Hilkhot Berakhot 1:11 [Kessef Mishneh at the end]

7. Ran [s.v. Tannu Rabbanan (1b in the Rif)]

8. Tosafot cited in the Rashba [s.v. Aval natan hu] and the opinion of the Rashba [s.v. Ha natan hu]

 

            Our sugya deals with the declaration [amira] of the husband at the time of kiddushin.  By means of a close reading of the Rishonim, we will attempt to clarify whether this amira merely functions as a means of revealing the intentions of the husband or whether it is an integral part of the act of kiddushin.

 

            Read Rashi, Meiri, Tosfot Rid and the Ritva and ascertain their views on the issue.  The opinion of the Yad Rama is open to a number of interpretations - one of these is found in the Mishna La-melekh, another may be reached by comparing our case to the world of berakhot.  The view of the Rambam is explained by the Kessef Mishneh.

 

            The Ran only explains his reasoning in the case where the man gives the money and the woman makes the declaration [natan hu ve-amra hi].  Try to deduce why the declaration of the man is important and the different possibilities why the kiddushin is not effected in the case of natan hu v'amra hi.

 

            Deduce the opinion of the Tosfot found in the Rashba [this opinion is not found in the Tosfot itself].

 

            Think about the case of natna hi ve-amar hu and the argument of the Ran and the Behag in this regard.  How does this shed light on our question: What is the nature of the declaration of the husband?

 

            Kiddushin 5b "Tannu Rabbanan.  We learnt in a beraita: How does one betroth a woman with money?

If he gives the money and says to her: "You are hereby married to me" ... she is married ...

If she gives the money and says to him: "I am hereby married to you" she is not married...

If he gives the money and she says to him:" I am hereby married to you" it is a safek and chayshinan mi-derabbanan."

 

            What is the purpose of the declaration in kiddushin? [Based on this ,what is the safek in the case of "natan hu ve-amra hi"?]

 

            There are two basic approaches to answer our questions:

 

1. We need the declaration of the husband in order to evaluate his intentions and not as an essential part of the kiddushin process.  When the woman makes the declaration, we are unsure whether the man has given her the money as a gift or to marry her. [See Avnei Milu'im 27/18 with regard to the opinion of the Rif.]

 

2. It is possible that even if we are entirely sure of the man's intentions, the kiddushin will not take effect if he fails to declare "You are hereby married to me."  The safek in the gemara is whether the declaration of the husband is an essential part of the kiddushin or merely there in order to evaluate his intentions.

 

            We will study the Rishonim to ascertain their opinions. Rashi: [s.v. hachi ka'amar] "... But if he didn't act in accordance with what we said, for example if he gave [the money] but she made the declaration."

 

 
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