Masechet Kiddushin 37a-43b

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Wedding Rings
13 Nov 2008

The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz

This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.

Kiddushin 37a-b

The Mishnah on our daf introduces the idea that some mitzvot are obligatory only in the Land of Israel. According to the Mishnah, with minor exceptions, those mitzvot that are dependent on the land – teluyot ba’aretz – only apply in Israel, while those that are not dependent on the land apply both in Israel and in the Diaspora.

The Gemara‘s first suggestion of how to define the concept of mitzvot ha-teluyot ba’aretz is that it is based on whether or not the Torah discusses the mitzvot in the context of biah – of coming into the land. This suggestion is rejected because of two mitzvot – the commandments of Tefillin and peter chamor (phylacteries and redeeming a first-born donkey) – about which the Torah says ve-hayah ki yevi’aha, indicating that they become obligatory after God brings the Jewish people into the land of Israel (see Shemot 13:11), yet we know that these commandments apply in all places. The Gemara concludes that agricultural mitzvot apply only in Israel, while personal mitzvot apply in all places.

While the Gemara takes for granted that Tefillin and peter chamor apply even in the Diaspora, it does not supply any proofs that this is the case. Rashi says simply that we know that Babylonian Talmud scholars wore Tefillin, although Tosafot argue that this does not prove that there is a true obligation to wear Tefillin in the Diaspora, since they may have done so on a rabbinic level. The Ramban at first echoes Rashi’s approach, but eventually concludes like the Talmud Yerushalmi that the mitzvah of u-keshartam le’ot al yedkhem, commanding us to wear Tefillin, appears immediately after the threat of exile (va-avadetem mehera me’al ha-aretz ha-tovah – see Devarim 11:18), implying that the mitzvah of Tefillin remains in effect even when the Jewish people are living in exile.

Kiddushin 38a-b

As we learned on yesterday’s daf (page) as a rule, agricultural mitzvot apply only in Israel. Our Gemara brings a number of exceptions to this rule.

The Gemara explains that each of these apply in the Diaspora for different reasons. Chadash is biblically forbidden (see Vayikra 23:9-14), orlah is a halakhah and kilayim is forbidden mi-divrei soferim (on a rabbinic level). In explaining the meaning of the term halacha in this context, Rav Yehuda quotes Shmuel as saying that it is halacha medina, while Ulla quotes Rabbi Yochanan as saying that it is a halacha le-Moshe mi-Sinai (an oral tradition passed on from Moses at Mount Sinai).

The explanation brought by Rav Yehuda in the name of Shmuel is not very clear. Rashi suggests that it was an accepted tradition; others say that it was done following the directives of the rabbinic leaders of that time. Tosafot Chachmei Angliya explain that it means that it was accepted in some Diaspora communities, but not in all of them.

The rule of greatest concern here is that chadash is biblically forbidden in the Diaspora. In fact, for generations it has been common practice among Jews in the Diaspora to be lenient with regard to chadash. The Rama argues that in most cases the possibility that grain arriving in the marketplace is chadash is a sefek-sefeka – a “double doubt” situation where one can be lenient (i.e. the grain may have been from last year’s crop, and even if it is from this year’s crop, perhaps it was planted before Pesach).The Bach and the Taz both present different approaches explaining the accepted leniency, raising questions about whether we follow the position presented by our Gemara and even if we do, whether we can follow the opinions that it would only apply to grain that is grown in Jewish-owned fields.

Kiddushin 39a-b

The Mishnah on our daf describes how even the performance of a single mitzvah can bring good to a person, lengthen his days and guarantee him a share in the world to come, while failing to perform that mitzvah brings about the opposite consequences. Our Gemara discusses two specific mitzvot whose performance – according to the Torah – guarantees good and a long life – shiluach ha-ken (chasing away a mother bird before taking her chicks – see Devarim 22:7) and kibbud av v’em (respecting one’s parents – see Devarim 5:15). Rabbi Yaakov points out that the intention of the Torah must be to guarantee a share in the world-to-come, since he once saw a child who was sent by his father to perform the mitzvah of shiluach ha-ken, and in the midst of performing this mitzvah, the child fell down and was killed. The Gemara relates that this was the turning point for Acher (literally “the other,” but here referring to the Tanna Elisha ben Avuya), who turned away from the Jewish religion upon seeing this.

The rishonim point out that according to the Gemara in Chagigah (14), Acher’s heresy stemmed from a different incident. According to that Gemara, Acher was one of the arba she-nichnisu ba-pardes – four tanna’im who embarked on the study of esoteric secrets of the Torah. According to the Gemara (Chagigah 15), Acher peered into heaven and found the Archangel Mitatron who had received permission to sit down to write the merits of the Jewish people. From the midrashim it appears that Mitatron is the angel responsible for the entire world, and seeing him gave Acher the sense that there existed shetei reshuyot (two competing forces in heaven) – Mitatron and God – which was a common belief of Gnostic sects at that time.

The general approach of the rishonim is that there was more than one cause to Acher’s heresy. The Iyun Yaakov suggests that his experience in the pardes led him to question certain of his beliefs, but he still remained a practicing Jew with the hope that he would receive reward for his actions. Upon seeing the incident described in our Gemara he lost faith in heavenly reward and punishment, and rejected Judaism entirely.

Kiddushin 40a-b

Rabbi Abahu quotes Rabbi Chanina as teaching that a person should avoid sinning in a public forum, which will lead to chillul Hashem – desecration of God’s name – and should prefer to sin in private. Following this teaching, the Gemara quotes Rabbi Ilai ha-Zaken who rules that if a person sees that he cannot control his evil inclination he should go to a place where no one knows him, he should dress in black, i.e. in simple clothing, and do what his heart desires, rather than publicly desecrate the name of God.

The Gemara raises an objection to this ruling by quoting a baraita that teaches that with someone who shows disrespect to God, it would have been better had he never been born – a teaching that is interpreted by Rav Yosef as referring to someone who sins in private, since by sinning privately he shows that he is more concerned about how he is perceived by his peers than by how God views him. The Gemara answers that we must distinguish between a situation where the person could control his “evil inclination” and where he simply cannot.

Regarding the ruling itself, which appears to permit sinning in private, Tosafot quotes Rabbenu Hananel as explaining that the travel and change in dress are supposed to bring about a change in heart of the individual, and the hope is that by putting limitations on him he will refrain from sinning. Others point out that that is not the simple flow of the Gemara, and that Rabbi Abahu certainly did not intend to permit sinning, rather he suggests that the lesser of the two evils would be to commit the sin privately rather than publicly.

The Meiri writes that even Rabbi Abahu would not recommend that the person travel and sin, rather we must understand that this is discussing an act that is inappropriate, rather than one that is truly forbidden.

Kiddushin 41a-b

The second perek of Masechet Kiddushin begins on today’s daf, and its focus is mainly on the legal relationship created by marriage. The first discussion deals with the act of marriage itself, and specifically with kiddushin that is accomplished by means of a messenger (shaliach). This discussion does not only deal with marriage but is a wide ranging investigation into the power of shlichut, where it can be used and who can appoint – or be appointed – a shaliach.

Rav Yosef in the Gemara is quick to note that although marriage can be accomplished by means of a messenger, that is not the ideal situation, and that mitzvah bo yoter mi-bi-shelucho – that it is a greater mitzvah for a person to perform the act themselves, rather than have someone else perform the mitzvah for him. This concept applies not only with regard to the mitzvah of marriage, but to other areas of halacha, as well. The evidence brought by the Gemara to support this idea are stories of Talmudic sages who were involved in food preparation for Shabbat, which they chose to do rather than leave it to their servants.

Others point out that there is a specific problem with regard to having marriage performed through shelichut, since Rav Yehuda quotes Rav as ruling that a man should not marry a woman until they have met each other, lest he find something displeasing and they turn out to be incompatible. The rishonim point out that according to this approach, when the Mishnah says ha-ish mekadesh bo u’bi-shelucho (a man can marry through his own efforts or through those of an agent) it does not mean to recommend that a messenger carry out the marriage, rather it is teaching that if such a marriage took place it has the full halakhic ramifications of marriage.

Kiddushin 42a-b

Our Mishnah (41a) introduced us to the concept of shelichut – that a messenger can act as an agent and represent a person – to the extent that we say shaliach shel adam ke-moto, that when the messenger acts it is as though the person himself did the act.

Is this true in all cases?

One situation where a shaliach must take responsibility for the action that he does is if it was a forbidden act. There the Talmudic principle ein shaliach le-d’var aveira applies – that no one can appoint a messenger to commit a sinful act. The Gemara explains this by saying that the messenger’s true obligation is to follow the directions of God, not of another person – divrei ha-rav ve-divrei ha-talmid, divrei me shom’im!

The Talmud Yerushalmi presents a discussion on this point as to whether the concept of shelichut is true in all cases, and certain situations – like this one – are exceptions, or if we would ordinarily assume that a person cannot pass on responsibilities to another, and we need special teachings in order to permit shelichut to work. This discussion impacts on the question of a shaliach le-dvar aveira since according to the first approach we need to explain why shelichut will not work regarding a forbidden activity; according to the second approach it is obvious that we will not allow the creation of shelichut to do something forbidden.

Tosafot Ri”d argues that the Gemara does not mean to suggest that we would have thought that the messenger could have freed himself from responsibility for performing a forbidden act with the argument that he was only following orders. It is clear to us that an intelligent person must take responsibility for what he does. The discussion on this matter was solely to clarify whether the person who instructed the messenger should also be held accountable, since he was the one who instigated the action.

Kiddushin 43a-b

Rava quotes Rav Nachman as affirming the ruling that a person who is acting as a messenger can also play the role of a witness to the matter. Thus, if a man instructs two people to act as his agent and give kiddushin to a woman, when they do so and she accepts the kiddushin, they can act as the witnesses to the marriage. This would be true also where he instructed the messengers to give a get (a writ of divorce) on his behalf or in a business transaction.

The Gemara explains that the rule allowing the messenger to act as a witness must be stated in each of these cases –

Thus Rava teaches that the messengers are believed to testify in all such cases.

Based on this explanation, a number of the rishonim ask whether the messengers acting as witnesses can be believed when they were sent to deliver money as kiddushin, and the woman denies having received it from them. Perhaps in such a case we must be concerned that they split the money between them and never delivered it. In order to avoid this question, some of the rishonim suggest that we must be talking about a case where the kiddushin was done by means of a shetar – a written contract – and not money. Others argue that if the amount of money was just the minimum prutah, we do not need to be concerned that they would split such small shares between them.

In truth, the Talmud Yerushalmi considers this question and rejects it; since the man relied upon them to fulfill their shlichut, we do not worry that they may do such a thing.

In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit or contact the Aleph Society at 212-840-1166.

The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.