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.
The third perek of Masechet Kiddushin begins on our daf. The first Mishnah presents us with a case of someone who was appointed as an agent by his friend to marry a certain woman. The Mishnah teaches that if the man goes to that woman and offers her kesef kiddushin (money that will create the marriage) for himself, she will be married to him and not to the first man.
The question that is raised by the rishonim is why the Mishnah needs to teach us this halacha. It would appear to be obvious that if the woman accepted the money and agreed to marry him, she is married to him and not to another! Several suggestions are raised to explain this case.
Tosafot Ri”d suggests that we may have thought that the messenger was not serious in his proposal since we do not suspect that a Jewish person would behave in such an uncouth manner (see Tzefania 3:13). The Mishnah therefore needs to tell us that such a marriage is a serious one.
The Ramban suggests that we may have thought that this case should be ruled kiddushei ta’ut – a mistaken marriage – since had the woman known that there was another man who wanted to marry her, perhaps she would not have agreed.
According to Tosafot, the case may be where the messenger first told her that he was representing someone else, but then said harei at mekudeshet li – “behold you are betrothed to me.” The Mishnah teaches that we do not assume that he was still acting as an agent if he says that.
Another approach argues that on occasion the rabbinic sages rule that someone who behaves improperly loses his right by law – and that perhaps the Sages would have negated the marriage retroactively in response to his inappropriate behavior.
Our Gemara tells the story of Rav Gidel who was negotiating on the purchase of a piece of land, but before he reached a final agreement Rabbi Aba came and bought it. Rav Gidel complained about Rabbi Aba’s behavior to Rabbi Zeira, who passed on the information to Rabbi Yitzhak Nafcha, who said that he would investigate the matter when Rabbi Aba came during the holidays.
Upon seeing him, Rabbi Yitzhak Nafcha asked Rabbi Aba what he thought of someone who sees a poor person finding a loaf of bread and takes it for himself before the poor man can take possession of it. Rabbi Aba responded that such a person would be declared a rasha – an evil person. Rabbi Yitzhak Nafcha then demanded an explanation of why Rabbi Aba himself had behaved in that manner towards Rav Gidel in purchasing the land. Rabbi Aba replied that he was unaware that Rav Gidel was negotiating for the same parcel of land. When Rabbi Yitzhak Napha suggested that Rabbi Aba sell the land to Rab Gidel, Rabbi Aba refused to do so, saying that it was the first land he had ever purchased and he felt that it would be a bad omen to be forced to sell it. He was willing, however, to allow Rav Gidel to take it as a present. In the end, Rav Gidel declined to accept a gift – invoking the passage in Mishlei that discourages taking presents (see Mishlei 15:27) – and Rabbi Aba refused to tend the land, since he did not want to benefit from having purchased land that someone else wanted. With neither of them claiming the land as their own, it became known as “the field of the sages.”
The Me’iri explains that the field was not really considered ownerless, but it was left available to be used by the Sages as a place of recreation.
The Mishnayot on today’s daf give examples of kiddushin al tenai – a marriage proposal that is based on the fulfillment of a condition.
If a man says to a woman, “Behold you are betrothed to me on the condition that I…
- …give you two hundred zuz,” or
- …give you two hundred zuz within the next 30 days,” or
- …have two hundred zuz,” or
- …will show you two hundred zuz,”
the marriage will take place if the man fulfills the condition as stated. In the last case, it would not be enough to show her money that is on the money-changer’s table, since it was implicit in the condition that he was suggesting that the money belonged to him.
Our Gemara brings a disagreement about the first case of the Mishnah. When a man states his desire to marry a woman and makes it conditional on giving her a sum of money, Rav Yehuda rules that only when he gives her the money and fulfills the condition, will the marriage take effect. According to Rav Huna, the marriage will take effect retroactively once he gives her the money as promised.
The Ritva quotes the Talmud Yerushalmi, which suggests that according to Rav Huna the marriage will take effect immediately and he is obligated to give her the money. Given Rav Huna’s belief that giving the money as promised would activate the marriage retroactively, if we allow the condition to remain unfulfilled it would leave the woman connected to the man forever without them actually being married. This is a situation that cannot be allowed, so we force the man to fulfill the condition that he made. The Ritva argues that since we do not see any indication that the Talmud Bavli disagrees with this, we must assume that this is the halacha. Nevertheless, from the other rishonim it appears that they do not believe that he is obligated to fulfill the condition.
We have been discussing situations where an offer of marriage includes a condition (see daf, or page, 60). The Mishnah on our daf brings the opinion of Rabbi Meir, who requires a set of rules according to which the condition must be made in order for it to be effective. Turning to a conditional agreement that appears in the Torah, Rabbi Meir argues that any condition that is made that does not follow the rules of the agreement between the tribes of Reuven and Gad with Moshe, has no effect on the agreement. Thus, a condition must be stated so that it is –
- a tenai kaful – a “double condition” that spells out what happens if the condition is fulfilled and what happens if it is not fulfilled
- hen kodem le-lav – the first statement must explain what happens if the condition is fulfilled, only afterwards should there be a statement that explains what happens if the condition is not fulfilled
- tenai kodem le-ma’aseh – the condition must be stated before its effect is stated.
Rabbi Chanina ben Gamliel disagrees with Rabbi Meir arguing that only in the specific case of the tribes of Reuven and Gad was there a need to go into clear detail; in most cases there is no need to do so.
The case of the tribes of Reuven and Gad appears in Sefer Bamidbar (chapter 32). These two tribes approach Moshe and suggest to him that they remain on the eastern bank of the Jordan River rather than crossing into the Land of Israel proper. After some discussion, Moshe agrees to their request, conditional on their joining the rest of the tribes in conquering the land. Moshe clearly states that they will receive their request if they fulfill the condition, but that if they do not fulfill the condition they will receive their inheritance on the western side of the Jordan together with everyone else. Rabbi Chanina ben Gamliel’s argument is that Moshe had to clarify that failing to fulfill the condition would not make them lose their inheritance; they would receive their inheritance on one side of the Jordan or the other. This would not be necessary in other situations, however.
In the context of Rabbi Chanina ben Gamliel‘s position in the Mishnah on yesterday’s daf that there is no need for a carefully crafted statement that delineates exactly what will happen in the event that a condition is fulfilled or left unfulfilled, the Mishnah on our daf makes it clear that expectations still must be stated clearly in order for them to be considered seriously.
According to our Mishnah, if a man says that he had certain expectations about the woman that he married (e.g. that she was from a family of kohanim or Levi’im, or that she was wealthy) and that he now wants the marriage dissolved since he discovered that his assumptions were in error, we do not take his argument seriously, since she did not trick him. Some of the commentaries point out that by saying that “she did not trick him” the Mishnah is implying that if she had misled him and had actually given him misinformation, then we might take his argument seriously and would consider annulling the marriage, since it took place under a misimpression.
The operating principle in this case is devarim she-ba-lev – “thoughts in one’s heart” – and the question is whether or not they are to be taken seriously.
The question of devarim she-ba-lev applies not only to marriage, but to other areas of Halacha, as well. The apparent conclusion of our Gemara is that devarim she-ba-lev einam devarim – that we cannot consider unexpressed intentions. Rabbeinu Tam objects to this ruling based on the laws of korbanot (sacrifices) where we find that in a case where a person intends to declare a specific animal or object to be hekdesh (sanctified for use in the Temple), but inadvertently points to a different one, it is the intended one that become holy, not the one that was chosen accidentally. Rabbeinu Tam argues that this clearly shows that devarim she-ba-lev are taken into account by the halacha.
The Ramban responds by distinguishing between an accidental statement and a secret intent. The case where a person made a statement by accident would be considered an ones – something that happened that was beyond the person’s control – where we would not hold the person responsible. However, a person cannot simply come and claim that he had a secret intent that must be taken into account after the fact.
Most of the rishonim accept the approach of Rabbeinu Chananel who ruled that devarim she-ba-lev einam devarim, but that if circumstantial evidence points to the fact that the person meant to include a condition, it will be taken into account. Thus, for example, were someone to give away his estate, unaware that he would recover from his illness, we would recognize that his presents were made under mistaken assumptions and he could negate the gifts upon recovery.
As we have learned, in order to create a marriage, a man must give a woman an object of value and say harei at mekudeshet li be-kesef zo ke-dat Moshe ve-Yisra’el – “behold with this money you are betrothed to me according to the laws of Moses and Israel.” What if he offered to provide the woman a service that had value? Would that suffice to act as money?
From a simple reading of our Mishnah, it would appear that services performed on the woman’s behalf can be used for marriage. The Mishnah teaches that if a man says harei at mekudeshet li al menat she-adaber alayikh la-shilton – “behold you are betrothed to me on the condition that I speak to the governor on your behalf” – the marriage will take place. This assumes, of course that he fulfills the condition. The Rambam says that simply speaking to the governor is not enough; he must successfully petition the governor on her behalf. The Rosh argues that all he agreed to do was to argue her case, implying that if he did so properly the marriage would come into being, since representing her has value (i.e. she would have had to pay someone to do it) even if he is unsuccessful.
This halacha notwithstanding, Reish Lakish limits the rule of the Mishnah to a case where the man not only performed the service, but also gave the woman money separately. He argues that the author of the Mishnah does not believe that payment for a service is due only at the end, rather he believes that payment is essentially due from the beginning of the service until the end, so that when the service is completed the person who contracted the service – who really should have been paying throughout – has a standing debt to the person who performed the service. Since we have learned (see Kiddushin 47) that a man cannot marry a woman simply by forgiving a debt that she owed him, the kiddushin will not work unless he actually gives her something of value.
Of great concern to the Torah is keeping up the honor and purity of the Jewish home. Thus, in two places, the Torah lists forbidden sexual relationships (see Vayikra chapter 18 and chapter 20:10-24), most of which are incestuous relationships. For these relationships, the punishment will be either karet (being “cut off” from the community, i.e. a symbolic death sentence) or mitat bet din (a capital offense). The people on this list (e.g. a parent and a child, siblings, etc.) cannot marry one another, and offspring born to such relationships are considered to be mamzerim (literally “bastards,” in the Gemara and halakhic literature this refers to children who are born from such forbidden relationships and cannot marry within the Jewish community – see Devarim 23:3). This is the opinion of Shimon ha-Teimani in a Mishnah in Masechet Yevamot (49a), which is accepted as the halacha.
Our Gemara presents the rejected position of Rabbi Akiva, who disagrees with Shimon ha-Temani and rules that any sexual relationship that is forbidden by the Torah – even a simple prohibition that will not carry with it the punishment of karet or mitat bet din – will preclude the possibility of marriage (i.e. not only is marriage forbidden, but if it is attempted it will have no meaning or significance – like a brother who tries to marry his sister – and there will be no need to end the marriage with a divorce) and children born from such a relationship would be mamzerim.
There are exceptions to these rules as interpreted by Shimon ha-Teimani and Rabbi Akiva. One of the forbidden sexual relationships that appears in the lists in Vayikra is sleeping with a niddah – a menstruating woman. In the Gemara in Yevamot we find that Abayye teaches that all agree that the child of such a relationship would not be a mamzer; his proof is the fact that marriage is possible when a woman is a niddah. The rishonim point out that it is obvious that niddah is different than all of the other cases of forbidden relationships, since in the course of every marriage the woman becomes a niddah without it affecting the couple’s marital status.
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 www.steinsaltz.org 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.
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