Avodah Mailing List

Volume 05 : Number 079

Thursday, July 6 2000

• Re: gut feelings and "hefkerut"
• Re: gut feelings and "hefkerut"
• Re: gut feelings and "hefkerut"
• Ruth and Kiddushin (was Re: gut feelings and "hefkerut")
• Rabbi Saul Berman & Innovations in Wedding Ceremony
• Ran on Kiddushin
• Re: Nezem
• Re: Nezem
• Re: Ruach Chachamim and Yerushah
• Re: gut feelings and "hefkerut"
• [Fwd: Ran in Nedarim]
• Re: Ran in Nedarim
• Re: gut feelings and "hefkerut"
• Re: Ran in Nedarim
• Re: Ran in Nedarim
• Re: "tih'yu", etc.
• Re: Ran in Nedarim

On Wed, Jul 05, 2000 at 11:24:40AM -0400, Noah Witty wrote:
:                                                          The notion of
: protecting bnos yisrael so that they not be hefker, is one of fact, i.e.
: those takonos were promulgated and concerns aired (in gemara) were made
: because bnos yisrael would become literally involved in prostitution ...
:                                  However, as presented by RYGB, the RaN
: requires that the woman make hereself halachikally hefker in order to
: enable the keddushin to become efficacious (chal in yeshivishe reyd).
: That is a different hefker, I think.

As I noted in Areivim, the Ran's point is that the kiddushin not be viewed
as a mechirah. We therefore don't want the procedure to look like there is
a seller involved. Since we insist there is no previous owner of the woman
"hefker" is involved.

The message is therefore quite the reverse of the one assumed by the original
questioner.

Perhaps this can be connected to RYBS's comments on Rus. There he notes the
recurring theme of committing oneself, Rus's conversion being the most obvious
case. We also find the Boaz asks for Ploni's shoe -- "vizos hate'udah
biYisrael" (Rus 4:6).

Kinyan suddar/chalifin and sh'tar (IOW te'udah) are unique kinds of kinyanim
as they can be used to demonstrate the acceptance of a commitment. Marriage
is a kinyan chaliffin -- we don't care about the value being exchanged for the
kinyan. Ha'ishah nikneis therefore doesn't speak of means of buying a woman,
but the means of formalizing one's commitment to one's bride.

The Ran might be objecting on the grounds that one can't buy one's bride, and
therefore any act which makes it an attempt to be koneh the person, not the
commitment, would render the pe'ulah meaningless.


All that said, do we find anyone after the Ran who is chosheid for this
shitah? Or are we "just" digging up our own Brisker chumrah?

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 29-Jun-00: Chamishi, Sh'lach
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Yuma 29a
For a mitzvah is a lamp, and the Torah its light.         

On 5 Jul 2000, at 12:04, Micha Berger wrote:

> Kinyan suddar/chalifin and sh'tar (IOW te'udah) are unique kinds of kinyanim
> as they can be used to demonstrate the acceptance of a commitment. Marriage
> is a kinyan chaliffin -- we don't care about the value being exchanged for the
> kinyan. Ha'ishah nikneis therefore doesn't speak of means of buying a woman,
> but the means of formalizing one's commitment to one's bride.

Huh? We do care that the man give the woman a shveh pruta, and 
the kinyan is clearly not a chalifin....

-- Carl


Carl M. Sherer, Adv.
Silber, Schottenfels, Gerber & Sherer
Telephone 972-2-625-7751
Fax 972-2-625-0461
mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

On Wed, Jul 05, 2000 at 08:36:00PM +0200, Carl M. Sherer wrote:
: Huh? We do care that the man give the woman a shveh pruta, and 
: the kinyan is clearly not a chalifin....

You're right, I misremembered.

Here's an excerpt from mj-rav@shamash.org, R' Israel Rivlin and R' Josh
Rapp's email list of summaries of divrei Torah from RYBS. This issue was
sent last Shavu'os, and was based on a shiur given 4/25/86, tape #5285 in
R' Miton Nordlicht's library.

: Besides Gayrus, Ruth also introduces the Kinyan of Chalipin (exchange.
: Kinyan Sudar is the same as Chalipin), Shalaf Ish Naalo etc.What is the
: difference between Chalipin and other forms of Kinyan? Is Chalipin a Kinyan
: Kesef, or is it a separate form of Kinyan unto itself? Some say that it
: is really Kesef, the only distinction is that whereas by Kesef there is a
: requirement to use a Shave Prutah, and item or coin of minimally a Prutah
: value, Chalipin allows the use of any form of Kli, regardless of minimum
: value. According to Rashi, in Kdushin cases where we invalidate Chalipin,
: we do so because of the possibility of using an item that is valued at
: less than a Pruta. In such cases Chazal said that there is a lack of Gmiras
: Daas, complete acceptance, of Kdushin that is of such minimal value, and
: not because there is something inherently wrong with the use of the Kinyan
: Chalipin. According to Rabbeinu Tam, Chalipin does not establish Kdushin
: because Chalipin is not Kesef, and Kesef is one of the acceptable Kinyanim
: according to the Torah for Kdushin, not Chalipin.

....

: So what is the connection between Chalipin and Ruth? After all, Boaz and
: the other redeemer could have used other forms of Kinyan in this case. The
: Rav explained that in the final analysis conversion is Hischayvus, self
: obligation. What constitutes conversion? Milah and Tvila, circumcision and
: immersion in a ritual bath. The Jews underwent Milah in Egypt (Himol Lachem
: Kol Zachar) and Tvila at Sinai (Vayaz Moshe min Hadom). Conversion also
: requires Kabbalas Ol Mitzvos, accepting the commandments of Hashem.

So yes, kiddushin is about accepting an obligation. However, chalifin is
not a correct description of the mechanics -- not because of the chalos one
gets with chalifin per se, but because we require that a perutah be used. I
should have said that it wasn't a purchase because there is no restriction
on the amount of money used, as opposed to being limited to market value
(eirachin? damim?) +/- 1/6th.

-mi

On 5 Jul 2000, at 12:56, Micha Berger wrote:

> : So what is the connection between Chalipin and Ruth? After all, Boaz and
> : the other redeemer could have used other forms of Kinyan in this case. The
> : Rav explained that in the final analysis conversion is Hischayvus, self
> : obligation. What constitutes conversion? Milah and Tvila, circumcision and
> : immersion in a ritual bath. The Jews underwent Milah in Egypt (Himol Lachem
> : Kol Zachar) and Tvila at Sinai (Vayaz Moshe min Hadom). Conversion also
> : requires Kabbalas Ol Mitzvos, accepting the commandments of Hashem.

Maybe it's because I'm reading this out of context, but AFAIK Ruth 
converted before she ever met Boaz. See the Gemara in Yevamos 
47b. 

Moreover, AIUI the Chalipin between Boaz and Ploni Almoni was to 
be koneh the property of Machlon and the *right* to be meyabem 
Ruth. It was not a means of kinyan of Ruth herself. Since Boaz's 
marriage to Ruth was (apparently an extended form of) Yibum, that 
kinyan could only be done by Bia.

> So yes, kiddushin is about accepting an obligation. However, chalifin is
> not a correct description of the mechanics -- not because of the chalos one
> gets with chalifin per se, but because we require that a perutah be used. 

Again, I don't see how Kiddushin is about accepting an obligation. 
Especially according to those Rishonim who hold that Kiddushin is 
a separate mitzva d'oraysa (IIRC the Rosh at the beginning of 
Ksuvos in the sugya about Sheva Brachos), Kiddushin is an 
independent chiyuv which is not related to any other obligations. 
What obligations would you propose that one of the parties is 
accepting vis a vis the other as a result of giving/accepting the 
kesef kiddushin? It seems to be that sh'air, ksus and onah are 
imposed d'oraysa after a man is mekadesh his wife; whether or not 
he accepts those obligations they are forced upon him. Other 
obligations are similarly imposed d'Rabbanan and are part of the 
duties that each spouse has to the other. 

-- Carl


Carl M. Sherer, Adv.
Silber, Schottenfels, Gerber & Sherer
Telephone 972-2-625-7751
Fax 972-2-625-0461
mailto:cmsherer@ssgslaw.co.il
mailto:sherer@actcom.co.il

Please daven and learn for a Refuah Shleima for my son,
Baruch Yosef ben Adina Batya among the sick of Israel.
Thank you very much.

Noah Witty raises the point of Nachat Ruach Lenashim (from Chagiga).
There the chachamim permitted an imitation semicha on a korban.  Rav
Herschel Schachter contends (in his well known article on Women's
Tefilla Groups) that the rationale of nachat ruach lenashim applies only
when there is absolutely no alternative to having an imitation mitzva,
but not when there is a better alternative.  I'm not so convinced by
this teirutz, but that is how he deals with a source that seems to
contradict his position (i.e., that we must reject any imitation mitzva
acts).
Here's a  relevant point which we should keep in mind: When the chatan
says "kedat Moshe Veyisrael" he is expressing the fact that "kol
demekadesh adaata derabbanan mekadesh."  In certain limited cases where
the man's actions (in the context of the kiddushin) were not
appropriate, the Chachamim would retroactively be mafkia the kiddushin.
When the kallah uses the same phrase, is she is accepting "adaata
derabbanan"?   Does that mean that the chachamim can annul her
acceptance of the ring?  Can such a notion make sense?

Daniel

C1A1Brown@aol.com wrote
> 2. The gemara in Kid. 7 is mefurash in the case of adam chashuv that the
> woman does the amira as well as the nesina and kiddushei vaday is chal (see
> Tos. on daf 5 as well). The Ran did not categorically deny amira/nesina
> by the woman, as that would be againt an explicit gemara. The Ran said that
> a woman does not need *da'as* makneh for the kiddushin to be chal. In the
> case of adam chashuv where she does everything, it is still the man's da'as
> which causes the chalos kiddushin.

	The Ram says on daf 5 that if she does the amirah there is a tzad to
say it works since it would be comparable to a case of where they are
"assukin b'iskei kiddushin" and  he gives her the ring w/out saying
anything. Just like there you say it is his amira and nesina so too in this
case. You see the Ran holds if it is viewed as her amira the kiddushin isn't
good. That being the case, even by adam chashuv  wouldn't you  have to say
some sort of sevara to explain how it is his amira ?

> Isaac A Zlochower wrote:
>
> Yet, if the context of the declaration is about
> marriage, and it is clear that a marriage is to be effected, then his
> giving the ring and her making the declaration constitutes a perfectly
> valid kiddushin according to the Shulchan Aruch (Even Ha'ezer 27).  The
> reason given by the GRA and the Aruch Hashulchan for this halacha is
> that such a declaration is no worse than silence at the time of the
> giving of the ring by the chatan, which is effective in the context of a
> marriage discussion.
>
	I thought the reason was based on th eabove Ran. In other words it
would be a case of "assukin b'iskei kiddushin" . I do agree with your
conclusion that the case under discussion should fall into this halachah and
the kiddushin should be chal.


	On a more general level, is there a difference in the psul of nasnah
hee (she gives ring) vs. the psul of amrah hee (she does the amirah)? In
other words, by nasnah hee it is a chisoron of "ki yikach". is amrah hee the
same chisoron or is it a different chisoron that you don;t have da'as of the
man ( or is not having the man's daas a also a chisoron of ki yikach)?

In a message dated 6/29/00 12:26:40 PM Eastern Daylight Time,
micha@aishdas.org writes:
> Going back across the sh-z bridge, we get a whole
>  new perspective to "ka'asher zamam la'asos". Zimah also fits in this family.

In Pshutoi Shel Mikra both of these mean plan/thought see Rashi Vayikra 18:17
Zimah = Eitzoh (taken from the Targum, and Targum on Zomam (Dvorim 19:19) =
Chashiv.

Kol Tuv
Yitzchok Zirkind

In a message dated 6/29/00 12:16:59 PM Eastern Daylight Time,
sbechhof@casbah.acns.nwu.edu writes:
>> According to many the aramaic word od Kodshaya means a ring like
>> (circle)  ornament.

>  What does that have to do with kodesh?

Don't know! but see Rashi on Yechezkel 16:12 Nezem = circles, (and Targum
on "Ogil" = Kdeishin (Bamidbar 31:50). Also to note from Loshon Hamishne
begining of Bameh Bheimoh "Shair" see Rashi there and Rashi D"H K'shair B"M
25b (this coresponds to the Targum for Etzada.


Yitzchok Zirkind

In a message dated 6/29/00 4:39:16 PM Eastern Daylight Time,
Gil.Student@citicorp.com writes:
> The gemara in kiddushin 17b says that a ger whose children converts should not
> give his converted children an inheritance in his property, not because it is
> forbidden but because "lo nochah ruach chachamim heimenah".  [There is a
> machlokes Rashi/Tosafos whether this applies only to a ger who was horaso
> shelo bikdushah or only to a ger who was horaso bikdushah]

See Rav and Tos. Y"T and the other Mforshim, on the Mishne in Shvi'is 10:9 as
to whom it applies.

> I can't remember the exact daf but the gemara in Yeish Nochlin says that one
> should not give a matanah mechayim and effectively undo all of the halachos
> of inheritance also because "lo nochah ruach chachamim heimenah".

> Why were chachamim so interested in the halachos of inheritance that they
> disallowed many "loopholes" to get around the halachos?  Why didn't they assur
> them outright?  Do we see this lashon of "lo nochah ruach chachamim heimenah"
> anywhere else?

In addition to the above mentioned Gemara in KIddushin and B"B 133b, it is
brought in other places in Shaas not only issues of inheritance, i.e. Shvi'is
10:9 (Gezel and Ribis), Shabbos 121b (killing Davar Hamazik on Shabbos),
B"M 48a (changing ones mind, and see Tos. there), please be Mdayeik in the
different Loshon's in Rashi in addition to the remarks of the Tos. Y"T on
the Mishne in Ovos 3:10, as to wether this implies an Issur see discusion in
Sdei Chemed Kllolim Mareches Hoaleph Ois 22, and see E"T vol. 1 column 716
(has an Erech on this issue).

Kol Tuv
Yitzchok Zirkind

Rav Soloveitchik brought a ra'aya from the case of in Kesubos of kiddushin
al menas sh'ain lach alai sh'er ksus v'onah that the concept of kiddushin
indicates a committment which goes beyond the sum total of the hischayvus
imposed (i.e. even if we do away with the chiyuvim of the ba'al to his wife
and wife to husband there is still a bond called kiddushin to speak of.)

-CB

Gil.Student@citicorp.com wrote:
> Was this a mistake or was the Chiddushei HaRan on Nedari not written by R.
> Nissim ben Reuven from Gerona?

Gil,

Yes, you caught an obvious error on my part.

Yitzchok Zlochower

From: Noah Witty <nwitty@ix.netcom.com>
> Are we expected to concern ourselves with every opinion found in Rishonim if
> a majority of of Rishonim disagree with RaN or at least do not specifically
> agree with him?   (This is a general paskening question anyway.)

Good question - but I would argue that one is not machniss oneself to a
safek l'chatchila. The Avnei Meluim seems to hold of the Ran l'halacha (EH
27:2), but as mentioned here previously, the Sha'arei Yosher takes some
issue with the AM's interpretation of the Ran. See also RYZ Gustman on Nasan
Hu v'Amra He where he interprets the famous Rashba Kiddushin 5b that the
woman may not be mesaya'as in the ma'aseh kiddushin - which may be relevant
to this issue as well.

> Do no other Rishonim or poskim reach a conclusion different than yours that
> would validate Rabbi Berman's ceremony?

Yes, and of course b'di'eved one would say mekkudeshes - but one would not
want to marry b'di'eved.

> Does the nachas ru-ach le-nashim (Chagiga) carry any weight in reaching a
> conclusion here?

I do not know.



From: Isaac A Zlochower <zlochoia@bellatlantic.net>
> I don't understand RYGB's position on the question of a kallah saying "I
> accept this ring according to the laws of Moshe and Israel" ...       How
> does a simple statement of fact that the extending of one's finger
> betokens acceptance of the ring interfere with the mechanism of rights
> relinquishment?  It is a mere announcement of what has been done and
> should have no legal implications. ...

Not necessarily. The statment that she "accepts" the ring makes her an
active participant in the ceremony  according to the Ran (and perhaps the
Rashba, see my response to RNW - that may be problem. Cf Aruch Ha'Shulchan
EH 27:34.

>                       ... if the context of the declaration is about
> marriage, and it is clear that a marriage is to be effected, then his
> giving the ring and her making the declaration constitutes a perfectly
> valid kiddushin according to the Shulchan Aruch (Even Ha'ezer 27).  The
> reason given by the GRA and the Aruch Hashulchan for this halacha is
> that such a declaration is no worse than silence at the time of the
> giving of the ring by the chatan, which is effective in the context of a
> marriage discussion.  No one that I have seen has raised the issue of
> the above Ran with regard to this ruling (even RYGB does not take issue
> with it).  Then why raise the issue with regard to a simple announcement
> on the part of the kallah?

A detrimental amirah does detract from the concept of "asukin b'oso inyan",
as the Poskim discuss there.

KT,
YGB

In a message dated 7/5/00 5:11:23 PM Eastern Daylight Time, C1A1Brown@aol.com 
writes:
> Rav Soloveitchik brought a ra'aya from the case of in Kesubos of kiddushin
> al menas sh'ain lach alai sh'er ksus v'onah that the concept of kiddushin
> indicates a committment which goes beyond the sum total of the hischayvus
> imposed ...

Got a location for that Sugya?

Jordan
(Now that June Wedding season is winding down, and I am not teaching, I might 
have time to look up some of these sources)

> Good question - but I would argue that one is not machniss oneself to a
> safek l'chatchila. The Avnei Meluim seems to hold of the Ran l'halacha

Ther problem is that neither the Ran or the Avnei Miluim is discussing what
a woman may say. The debate there simply is whether a woman needs real da'as
makneh or not. Even acc. to the A.M. a woman who verbalizes her ratzon is lo
gara from a woman who silently accepts her kesef kiddushin (that's the Rosh
that is brought in E.H. 27 by asukim b'oso inyan). Chaim Markowitz is right
- the Ran on 5 reinterprets the case as one where the man is the mekadesh
even though the woman is doing the amira. So isn't it a kal v'chomer:
if we have cases where the woman does amira and nesina and the man's role
is passive acceptance, but because of lomdus we are machshir the kiddushin,
isn't it pashut that where the man does the amira and nesina and is clearly
the mekadesh and the woman is simply acknowledging her kabbalah, that such
kiddushin should be chal?

To contend otherwise means you assume saying 'hareini mekabelet' to the
man's amira and nesina is worse than a woman saying 'hreini mekudeshet lach
b'nesinas ma'os zu k'das Moshe v'Yisrael' and handing over the money when
they are asukim b'oso inyan.

I don't see how that can be.

I don't understand something even more fundamental about the Ran. How can
the bride extend her finger to accept the ring? After all, isn't this at
least as much a ma'aseh and therefore non-hefkeir-like as amirah?

-mi

On Thu, Jul 06, 2000 at 11:02:35AM -0400, MPoppers@kayescholer.com wrote to
Areivim:
: Don't have a Koren TaNaCh at the office, but I've usually seen
: such words have a meseg accompanying the chirik,
: causing the sh'va to not be nach

You made a similar comment when you proofread Ashirah Lashem for me. I'm
bringing this to Avodah for public comment, perhaps we can have our difference
of opinion resolved.

Similarly, in v4n197 RM Frankel brought me to task for the same correction:
>                  Micha would seem of the all-midword-shivohs-are-noch
> persuasion.  In any event, despite his unqualified assertion re the
> "mispronounced liheeyos" there are those of us who think precisely that,
> i.e. that the shivoh under that hey is indeed a noh.  as to the potential
> "problem" of closing the preceeding short chiriq vowel under the lamed,
> which would ordinarily lead you to conclude that the following shivoh, in
> the absence of the here impossible to deploy dogeish chozoq, must be noch,
> we would simply note that the word lihiyos (not quite but almost) always
> deploys a meseg following the chiriq, legnthening it sufficiently to allow
> the following noh.  while this may all be debatable - certainly there is no
> uniformity of opinion on the purpose of every meseg - the situation is from
> from the settled closed case the moderator's assertion...

IOW, how do we know it's debatable? Who paskens (as opposed to scholarly
grammarians) that it would be na? (For that matter, a scholarly source would
also be interesting to see.)

I know of two systems for sh'va na and sh'va nach for halachic purposes:
those of the Razah and of the Vilna Ga'on. (Ashirah Lashem follows the Gra.)
The rules (as I reduced them in my notebook) are pretty straightforward:

1- Under the first letter.
2- After another sh'va. (And the first would be nach.)
3- Under a degushah.
4- Under the first of two identical letters
5- After a long vowel. According to R' Chaim Vilozhiner, the Gra excepts a
   leading melupum from this rule, since the syllable doesn't open with a
   consonant.
6- Razah: Before an undotted beged kefet.

The machlokes in #5 and #6 means that the Gra has "uchsavtam" while the
Razah has "uchisavtam". There is no way this word in Sh'ma would work if
the two machlokesim were independant -- it would have been "uchtavtam",
with a dotted taph.

Note that I didn't find where either makes the sh'va after a hei hayedi'ah
a special case (although many are under a degushah -- e.g. "yom hashivi'i"
in Vaychulu), nor for a meseg.

I therefore do not understand what the source for "Borchu es H' hamivorach"
as opposed to "... hamvorach" is -- yet the latter is more commonly found.
Was it a typo in siddur haGra that just got copied through the decades?
Similarly, nothing for RMF's assertion that a chirik with a meseg can be
considered a long vowel. Which may just prove my research was incomplete. So,
I'm asking the chevrah for mekoros.

FWIW, R' David Gorelik, who lained for RYBS and according to his shitah,
reads it "yihyeh".

-mi

-- 
Micha Berger (973) 916-0287          MMG"H for 29-Jun-00: Chamishi, Sh'lach
micha@aishdas.org                                         A"H 
http://www.aishdas.org                                    Yuma 29a
For a mitzvah is a lamp, and the Torah its light.         

: I don't understand something even more fundamental about the Ran. How can
: the bride extend her finger to accept the ring? After all, isn't this at
: least as much a ma'aseh and therefore non-hefkeir-like as amirah?

This is going in circles because we keep coming back to that same point -
the Ran never said that a woman is barred from any participation in ma'aseh
kiddushin (no matter which hesber of the Ran you take). The Ran said a woman
is barred from *exclusive* control over the ma'aseh kiddushin. Big difference.

********************


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