Daf 78b

  • Rav Michael Siev


Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 14- Daf 78b

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Last week, we learned the mishna on 78b which quotes a dispute about the extent of parents' credibility with regard to their child's lineage. The tanna kamma (first, anonymous, tanna) quoted in the mishna rules that even if a couple claim that their child is a mamzer, they are not believed. Rabbi Yehuda argues that the parents are believed. The beraita fills in the basis of Rabbi Yehuda's claim: the Torah (Devarim 21:17) requires a father to "recognize" (yakir) his firstborn son with regard to the privileges he is entitled to in the realm of inheritance. In other words, even if a father prefers a different son, he must publicize the true identity of his firstborn son. At the same time, this responsibility that the Torah places on the father implies a measure of credibility; if the father is commanded to identify his firstborn son, it must be that this identification is deemed credible by halakha. Rabbi Yehuda extends this to other claims made by the father in this realm: just as a father is believed to say which son is the firstborn, he is believed if he claims that his child is of tainted lineage.

The Gemara we will study today continues this discussion. Its presentation is rather involved, so it will take effort to keep things straight. We are twelve lines from the bottom of 78b.

Rav Nachman bar Yitzchak said to Rava:

It is well for Rabbi Yehuda, that is why it is written, "yakir;" 

but for the Rabbis, why does it say "yakir"?

For when he needs to be recognized.

For what halakha? To give him a double [portion]?

It is obvious! Why do I [need a] verse?

[He should be believed] since if he wanted to give it as a gift, would we not allow it?

For property that fell [to him] (came into his possession) afterwards.

And according to Rabbi Meir, who said: a person may convey that which has not yet entered the world,

why do I [need] yakir?

[For property] that fell to him on his deathbed.

אמר ליה רב נחמן בר יצחק לרבא:

בשלמא לרבי יהודה, היינו דכתיב יכיר;

אלא לרבנן יכיר למה לי?

בצריך הכירא.

למאי הלכתא? לתת לו פי שנים.

פשיטא, למה לי קרא;

מגו דאי בעי מיתבא ליה מתנה מי לא יהבי ליה?

בנכסים שנפלו לאחר מיכן.

ולרבי מאיר, דאמר: אדם מקנה דבר שלא בא לעולם,

יכיר למה לי?

שנפלו לו כשהוא גוסס.

Having already established the significance of the pasuk of yakir to Rabbi Yehuda, the gemara questions what the Sages derive from this verse. This is quite typical of Talmudic discussion: when a pasuk is used to derive a particular lesson, the Gemara will follow up and inquire what those who dispute that lesson derive from the pasuk. In our case, the Sages dispute Rabbi Yehuda's ruling that parents have extensive credibility regarding their children's lineage. What, then, is the need for the pasuk of yakir?

What simple answer might one be able to propose to this question?

At first glance, the gemara's question seems difficult. Rabbi Yehuda's ruling, after all, is an extension of the law of yakir as presented in the Torah itself, which posits a father's credibility specifically regarding identification of his firstborn son. Maybe the Sages simply limit the verse to this context!

The gemara explains that if that were the case, we would not need a pasuk to teach this rule. The halakhic significance of the firstborn son is that he has rights to a double portion of the inheritance. However, it is obvious that a father would have credibility in this regard, due to a "miggo" argument. Miggo essentially means that if a person has the ability to accomplish a particular goal by making a certain claim or by taking a certain action, he is deemed credible if he attempts to accomplish that same goal by means of a different claim. In our case, we may not always be inclined to trust the father's account of his children's lineage. But regarding the inheritance, the father could simply grant his assets to whichever son he wants as a gift. Since he can legally accomplish the goal of granting a particular son certain property rights, he is believed when he claims that that son actually has legal rights to inherit that property. Although there are different interpretations of how miggo works, the simplest explanation is that the claimant has no reason to lie, since there is nothing standing in the way of his accomplishing his goal through legal channels. He thus has a heightened level of credibility and we would know that his word is decisive even without the pasuk of yakir.

The gemara answers that the pasuk of yakir is still needed according to the Sages because the application of miggo here is limited. Miggo might be applicable at the time the father makes the claim, but what about property that the father acquires after that? At the time he made the claim, he could not have transferred this property to his son, because it was not yet in his possession! Thus, the father's credibility based on miggo should be limited to property that was in his possession at the time of his claim, and the pasuk of yakir should be necessary to teach us that the father is believed regarding matters of inheritance even for property he acquires after he makes his claim. 

The gemara counters this suggestion as well: what about the opinion of Rabbi Meir, who holds that one can actually transfer rights to property that are not yet in one's possession (known as davar she-lo ba la-olam)? According to this view, the father can give as a gift, at any time, even those items that will become his property much later in the future! Thus, even when he makes his claim about which son is firstborn, he has the legal ability to give any percentage he wants of his current or future property to his son. This being the case, he should be believed regarding his identification of his firstborn due to miggo, even vis-a-vis property that he will acquire later. If so, the pasuk of yakir must be teaching us something beyond the narrow context in which it appears.

The gemara answers that Rabbi Meir himself limits the application of his law. Even Rabbi Meir admits that one cannot arrange in advance to transfer ownership of something that one will acquire when one has the status of a goses, which refers to someone on the verge of death. Thus, the pasuk of yakir is still necessary according to the Sages, because the credibility of the father that we learn from that verse has wider application than the credibility that we would have gleaned based on the concept of miggo.  

Why shouldn't Rabbi Meir's ruling apply to property that one acquires on one's deathbed? As Ritva here points out, Rabbi Meir apparently understands that when one transfers ownership in advance (davar she-lo ba la-olam), this does not mean that his future acquisitions are automatically diverted to the beneficiary of his transaction; rather, he has pre-arranged a transfer of ownership that will take place only after the new property has become his. For example, let us suppose that Reuven has transferred to Shimon the rights to any future property that he may acquire. Reuven's relative then dies, leaving property to Reuven. We do not view the property as transferring directly to Shimon. Rather, the property transfers to Reuven; at that point, the pre-arranged transaction from Reuven to Shimon kicks in. This being the case, the transaction from Reuven to Shimon only works if Reuven is able to carry out transactions at that time. If Reuven is a goses, he is unable to carry out transactions, and the pre-arranged transfer to Shimon cannot take place.

We must now understand why it is that a goses is unable to make a transaction. This is the subject of dispute among the commentators. Some, including Rashi here (s.v. ke-shehu goses), argue that a goses no longer has the halakhic status of a person who is fully alive. Therefore, his actions and intentions are, for the most part, devoid of halakhic relevance. Tosafot and others (s.v. lo tzericha) apparently understand that a goses is considered fully alive in every regard, except that a goses is not usually able to express his will; therefore, from a technical perspective, he will be unable to make transactions. It is true that in this respect the goses does not seem that much different than other people, including people who are sick but not on the verge of death, or even a healthy person who is asleep! The reason a goses has a unique halakhic status is because he is not likely to recover, and has therefore irrevocably lost the ability to carry out such transactions. Therefore, even a pre-arranged transfer does not take place.

The next mishna

We continue with the next mishna, on the bottom of 78b.

Mishna One who gave permission to his agent to betroth (accept kiddushin on behalf of) his daughter,

and he (the father) went and betrothed her:

If his preceded - his betrothal is a betrothal,

and if [the betrothal of] his agent preceded - his betrothal is a betrothal,

and if it is not known, both give a get;

and if they wanted - one gives a get and one marries [her].

מתני' מי שנתן רשות לשלוחו לקדש את בתו,

והלך הוא וקדשה:

אם שלו קדמו - קידושיו קידושין,

ואם של שלוחו קדמו - קידושיו קידושין,

ואם אינו ידוע שניהם נותנים גט;

ואם רצו - אחד נותן גט ואחד כונס.

This mishna requires a few introductory notes. First of all, we must be clear on the two-step process of halakhic marriage. The first step is called kiddushin, or erusin, and it legally binds the man and woman as husband and wife. This is most commonly accomplished when a man presents a woman with something of value (generally a ring), expressing his intent that this affect the kiddushin, and the woman willingly accepts it in the presence of witnesses. After kiddushin, the couple performs nissu'in, most commonly done through the chuppa, after which the couple is fully married and begins to live together as husband and wife. Although the two stages of marriage are performed nowadays at the same time, in previous times there was often a gap between the two steps. It should further be noted that a woman has the legal ability to accept kiddushin from the time that she attains full adulthood, at the age of approximately twelve and a half. Before then, when she is a minor or a na'ara (roughly, the first half a year after she turns twelve), her father can accept kiddushin on her behalf.

Most legal transactions can be accomplished via shelichut. This means that a person can appoint a shaliach (agent) to act on his behalf, in which case the agent can legally act on behalf of the one who appointed him. Halakha recognizes limited power of attorney, meaning that one can appoint a shaliach for any particular action, though not to have a blanket, general ability to act on one's behalf. Since kiddushin is a legal framework, it can be performed via shelichut; a man can appoint a shaliach to present the ring to the woman, thus affecting the kiddushin, and the woman may appoint a shaliach to accept the ring on her behalf. One can appoint one's shaliach with any guidelines that one wants. Thus, a man could appoint a shaliach to betroth a particular woman in a particular place, or may charge the shaliach with betrothing him any woman that the shaliach deems fit. Nissuin introduces the personal and intimate aspect of the marriage relationship, in which husband and wife establish a joint household. Due to the personal nature of this second stage of marriage, nissuin cannot be performed via shelichut. With all of this in mind, we can finally begin to explain our mishna.

The mishna presents a case in which a man appoints a shaliach to accept kiddushin on behalf of his daughter. The shaliach faithfully carries out his mission, but in the meantime the father himself decides to accept kiddushin from someone else. Clearly, a woman cannot be married to two men and the same time; which kiddushin is binding? The mishna rules that we essentially have two people who have the legal ability to accept kiddushin on behalf of the girl; her father and his shaliach. Therefore, if the father accepted kiddushin before the shaliach had a chance to, his kiddushin is binding. When the shaliach attempts to accept kiddushin, he is unwittingly attempting to accept kiddushin for someone who is already married. Since the woman is no longer eligibile for kiddushin, the shaliach's kiddushin is invalid. On the flip side, if the shaliach's kiddushin came first, the woman becomes legally married to the man from whom the shaliach accepted kiddushin; by the time the father attemtps to accept kiddushin, his daughter is already married. Thus, his attempt is not valid and his daughter is married to the man from whom the shaliach accepted kiddushin.

What if we are not certain whether the father or the shaliach accepted kiddushin first? Whichever kiddushin happened first is the one that is valid, and if we are not sure about the chronology, we must account for our uncertainty regarding which of the two men is the woman's true husband. Therefore, if the woman would want to marry a third party, she would have to receive a get (divorce document) from each of the two men in question. Similarly, if she would want to marry one of the men who already attempted to perform kiddushin with her (through her father or the shaliach), she will need a get from the other man in case he is the real husband.

We have just begun to explore this new mishna - we will continue with its second half next week.