Does Kiddushei Kessef Require the Delivery of Benefit?

  • Rav Moshe Taragin

The gemara describes an interesting mechanism known as matana al menat le-hachazir, whereby one person transfers ownership to another ON THE CONDITION that the item is subsequently returned. Unlike the case of a borrowed item, this situation entails full legal transfer contingent upon a secondary and subsequent return of the item. Prior to returning the item, the recipient attains full legal ownership. If he fails to return the item, the process is retroactively invalidated; since the condition of return was not met, the original transfer is disqualified. Although the Ketzot Ha-Choshen (Choshen Mishpat 241:4) suggests an alternate reading of matana al menat le-hachazir, most Rishonim assert that it provides a complete kinyan to the recipient conditioned upon ultimate return of that object to its original owner.


Despite the efficacy of matana al menat le-hachazir, the gemara in Kiddushin (6b) disqualifies this process for kiddushin. A man cannot transfer money to woman as a matana al menat le-hachazir and thereby affect a legal kiddushin. Assuming matana al menat le-hachazir constitutes a complete transfer, its failure to affect kiddushin is surprising. In fact, Tosafot (6b s.v. hivar) impute the failure to a Rabbinic decree – since a matana al menat le-hachazir process RESEMBLES chalipin, it is invalidated so that people will not mistakenly attempt chalipin kiddushin. Accordingly, matana al menat le-hachazir SHOULD operate for kiddushin, but it is disqualified Rabbinically to prevent misuse of chalipin for kiddushin.


However, most Rishonim (Ramban, Rashba, Rambam) assume that despite the fact that matana al menat le-hachazir is a complete transfer, it is fundamentally flawed for kiddushin purposes. Since there is no enduring hana'ah (benefit), kiddushin cannot be established. For a kiddushin to succeed, a woman must receive kesef AS WELL AS lasting benefit. In this case of matana al menat le-hachazir although she has legally acquired the money, she is compelled to return it and therefore maintains no long lasting hana'ah. Kiddushin is different from classic monetary transactions in this respect; typically, money transfers even without enduring hana’ah constitute “kinyan kessef” necessary to accomplish sale of land. Inasmuch as kiddushin is not merely a monetary process, it requires an element BEYOND kesef. Marrying a woman demands the delivery of enduring hana'ah.


Having established that many Rishonim require hana'ah delivery for successful kiddushin, an interesting question emerges about the relationship between this added requirement and the delivery of kesef. Is hana'ah an ADDITIONAL AND INDEPENDENT element, or does it qualify the TYPE OF KESEF necessary? Put differently, does marriage demand a separate condition that enduring hana'ah be delivered, or does kiddushin require a superior form of kesef MEASURED by its ability to deliver long lasting hana'ah? This question can be investigated by examining several cases in which the absence of enduring hana'ah is not based on an internal limitation. 


For example, R. Elchanan Wasserman (Kovetz Shiurim, Kiddushin, siman 3) discusses a situation in which a man used land as kesef (following most Rishonim, who differ with the Ittur and approve of land as kesef kiddushin). When yovel commences, the land is returned to the original owner, the husband. Is this kiddushin disqualified for the same reason as a matana al menat le-hachazir, since ultimately the woman is not left with any enduring hana'ah? Alternatively, one could argue that the stripping of hana'ah is not internal but extrinsic. The delivered kessef provided hana'ah that was subsequently dissolved by a different and unrelated mechanism.


It seems that R. Elchanan’s question hinges upon the relationship between hana'ah and kessef. If hana'ah entails a completely autonomous element, its absence would scuttle the kiddushin regardless of the source of its elimination. However, if hana'ah merely defines the type of kesef necessary, perhaps this situation would be valid. In contrast to matana al menat le-hachazir, this kesef is clearly a hana'ah deliverer. A matana al menat le-hachazir is basically programed to boomerang back to the husband, and therefore cannot be considered a hana'ah deliverer; Land, however, is a final and absolute delivery that is susceptible to cancellation by yovel, and it can certainly be considered “hana'ah capable” kessef.


A parallel situation is raised in a responsum of the Rosh (cited by the Rema, Even Ha-Ezer, siman 29). He describes a case in which the money had originally been acquired by the husband from the intended wife through a prior unrelated matana al menat le-hachazir. The man currently owns the money but is obligated to return it to the woman. What would happen, the Rosh questions, if the man UNCONDITIONALLY delivers this money as kesef kiddushin to the woman? His kiddushin transfer is unqualified and does not require a return, and it can therefore be considered hana'ah-delivering money. However, she must return the money to the husband so that he can subsequently return it to her and fulfill the original condition of his ownership. An external factor, unrelated to the integral kiddushin process, forces her to relinquish the money. Just as R. Elchanan's question focused on yovel as an EXTERNAL factor compelling the woman to relinquish the money, the Rosh describes a prior condition forcing her to relinquish the money. Presumably, the logic of this case would be similar to the previously described analysis of Rav Elchanan’s situation. If enduring hana'ah is a separate requirement for kiddushin, its absence would invalidate kiddushin regardless of the reason that the hana'ah is terminated. However, if the sole function of hana'ah is to define the money as "superior," perhaps extrinsic cancellation of hana'ah would not ruin the grade or caliber of "hana'ah money."


A reverse case would involve a scenario in which the woman receives INTERIM hana'ah by possessing the matana al menat le-hachazir until its ultimate return. If she received a large sum of cash to be returned as a matana al menat le-hachazir, she still may benefit from the temporary possession. For example, her possession of the large sum, even for a short period, may project wealth and allow her to leverage financial options. In fact, the Ramban and Rashba claim that if this temporary benefit is sufficiently valued (and the husband intends this interim benefit as kiddushin money), it can serve as kesef kiddushin. After all, the man has delivered actual money (which is to be returned) and he has delivered hana'ah; both conditions have been met.



However, the Beit Yosef (Even Ha-ezer siman 29) cites a position in the name of Rabbenu Yerucham claiming that the interim benefit CANNOT serve as kiddushin money. Presumably, this position does not require money and hana'ah as SEPARATE elements, but rather requires superior money, characterized as money which delivers benefit. The interim hana'ah of temporary possession of money is not DELIVERED by the money itself, but is incidental. The primary hana'ah that money delivers is its inherent value, and this value must be returned. Whatever peripheral hana'ah accrues from time-limited possession of the money is incidental and does not define the kesef as a hana'ah-deliverer. Without superior kesef that delivers hana'ah, kiddushin fails. Perhaps the debate about whether hana’ah is a separate entity or one which qualifies kessef influences whether peripheral hana’ah validates kiddushin.