Gittin Chapter 9 Exclusion in Kiddushin (82b)

 

 

 

            In last week’s shiur, we saw the position of the Rashba daf 82b regarding the statement of the gemara regarding a certain case: “Shimon’s kiddushin did not take effect (lo ahanu).” The Ritva claimed that kiddushin which do not prohibit have no validity at all. From this we deduced that that, according to the Ritva, the act of kiddushin is an act of issur v’heter, and therefore, if there is no new consequence at all in the realm of issur, the intended kiddushin are completely meaningless.

 

            The case under discussion was where Reuven performed kiddushin with the exception of Shimon, and Shimon performed kiddushin (with the same woman) with the exception of Reuven. Reuven’s kiddushin made the woman prohibited to the whole world except for Shimon. Shimon’s kiddushin, on the other hand, prohibited no one, since most people were already were prohibited to the woman, and Reuven was excluded from Shimon’s kiddushin. Thus, in actuality, the status of the woman vis-à-vis issur did not change at all.

 

            We must emphasize the term “in actuality.” Even if the definition we deduced from the Ritva’s statements is correct ‒ that kiddushin which do not prohibit are not kiddushin – the conclusion of the Ritva is nonetheless debatable. For Shimon gave kiddushin to the woman and prohibited her to the whole world except for Reuven. I could say that Shimon’s actions do make the woman prohibited to the whole world, except for the fact that the whole world was already prohibited to the woman because of Reuven’s kiddushin. According to the Ritva, the gemara is saying that there must be a new change in the practical issur status as a result of the kiddushin; otherwise, I say that the kiddushin are meaningless, and therefore null and void.

 

            Take note: there is in fact a consequence between a woman becoming prohibited because of Reuven’s kiddushin, and a woman becoming prohibited also because of Shimon’s kiddushin. Shimon’s additional kiddushin becomes practically relevant in the case that Reuven dies. If Shimon’s kiddushin are valid, the woman is still prohibited to the world, and in order to release her we would need a get from Shimon. According to the Ritva, since at their inception Shimon’s kiddushin had no effect (“lo ahanu”) and did not in actuality prohibit a woman who was previously permitted, they were not valid at all; the woman is permitted to the whole world, even without a get from Shimon.

 

           The Ritva also holds that the woman in this case is permitted to the one who was excluded from the kiddushin. If Reuven gave a woman kiddushin to the exclusion of Shimon, Shimon can be mekadesh her, and also may have relations with her. This conclusion follows from the assumption that kiddushin have effect in the realm of issur v’heter. Therefore, kiddushin which exclude someone (according to R. Eliezer) create an exclusion also is in the realm of issur; that is to say, if Reuven was mekadesh a woman to the exclusion of Shimon, the woman is prohibited to the whole world except for Shimon. Therefore, she is permitted to Shimon.

 

            The Rashba disagrees with both these points. First of all, the woman who is mekudeshet to Reuven to the exclusion of Shimon is prohibited to Shimon (regarding relations), since if he has relations with her he is “using the part of the woman which is mekudash to Reuven.” Secondly, Shimon’s kiddushin are valid even though he did not make the woman prohibited to any new person. If Reuven dies, the woman is still prohibited to the whole world because of Shimon’s kiddushin. The Rashba holds that kiddushin have effect in the realm of kinyan, in creating a connection between the man who gives kiddushin and the woman who accepts them. Therefore, in kiddushin which excludes someone, the exclusion is also in the realm of kinyan. The kinyan which is created is non-existent in regard to Shimon; that is to say, as far as Shimon is concerned, the woman is not to the wife of Reuven. Therefore, Shimon can be mekadesh her, that means to say, make a kinyan on her. However, the Rashba claims, he cannot have relations with her, for, in contrast to his kinyan, which can relate only to the part not belonging to Shimon, relations perforce refer to the entire woman, and thus it turns out that Shimon “uses the part of the woman which is mekudash to Reuven.” On the other hand, the Ritva’s principle that kiddushin that do not prohibit are not kiddushin is baseless, because kiddushin in principle is not an act of issur, but rather an act of kinyan.

 

              Thus it turns out that according to the Rashba’s position, a woman who is partially mekudeshet is entirely prohibited. This conclusion is problematic, since– regarding gerushin, this is not the case. A woman who is partially megureshet – that is to say, whose husband gave her a get to the exclusion of Ploni, which is valid according to R. Eliezer – is permitted to the whole world. It is not possible to claim that according to R. Eliezer, she is fit for kiddushin but not for relations, because the explicit language of the mishna is “R. Eliezer permits” .The question thus arises, what is the difference between partial kiddushin, in which the part of the woman which is mekudash to the man makes her prohibited to the whole world, and partial gerushin, in which the part of the woman not included in the gerushin , which part is still, by its exclusion, mekudash to the husband, does not make her prohibited to the whole world?

 

            We are forced to conclude that there is a difference between gerushin and kiddushin. This difference will be made clear if we examine kiddushin with an exclusion and gerushin with an exclusion in regards to the realm of issur and the realm of kinyan. According to the Rashba, when someone is mekadesh a woman except for Ploni, he creates a kinyan with something left out. A kinyan with something left out in and of itself creates a prohibition to the whole world. But when someone is megaresh except for Ploni, we say the first of all he nullifies his kinyan (completely), and leaves something out only in the realm of issur. The reason for this is that kiddushin is a positive process, and gerushin is a negative process. When someone performs kiddushin, he makes a kinyan (on the basis of our assumption above that kiddushin are in the realm of kinyan, according to the Rashba) and therefore the exclusion is an exclusion in the realm of kinyan. When he is megaresh, he dismantles the kiddushin, and therefore we say that he is megaresh completely – except for what he excludes. Therefore, here too he first of all he is makneh, that is to say nullifies his kinyan, but he leaves out what he desires to leave out. In this case, he blocks the heter in regards to Shimon, but the kinyan nevertheless is completely nullified, and there is no mekudash part which makes the woman prohibited to everyone else.

 

 

             It is understandable why, according to the Ritva, the case in which Reuven was mekadesh to the exclusion of Shimon and Shimon was mekadesh to the exclusion of Reuven (and they both subsequently die), is not designated “the wife of two deceased men.” The woman is mekudeshet to Reuven and isn’t mekudeshet to Shimon at all, and in and of itself she is the wife of only one deceased man. But this case is difficult according to the Rashba, for the woman is mekudeshet to both of the men (and therefore if one dies she is still prohibited because of the second.) Shimon’s kiddushin also created an actual prohibition, since because of his kiddushin the woman becomes prohibited to Reuven. The Rashba answers that Shimon’s kiddushin did not directly make the woman prohibited to Reuven (for he was mekadesh her except in regards to Reuven), but only indirectly (since Reuven would be using the part of the woman mekudeshet to Shimon). The gemara calls this “lo ahanu” (are not effective) – that is to say, Shimon’s kiddushin do not create a shem eshet ish in relation to Reuven – and therefore this woman is not called the wife of two deceased men. The question is why the exception from yibum in the case of the wife of two deceased men is dependent on whether each kiddushin creates a direct issur on someone.

 

             It seems that the institution of yibum is based on the following theory: when someone dies (childless, with a brother) it is obvious that his kinyan in regards to his wife is nullified, for a dead person cannot be the owner of anything. The fact that the woman is still prohibited (“the wife of the deceased shall not be married to someone else”) is not a new prohibition caused by the relationship with the brother (the yavam), but a continuation of the prohibition of eshet ish of the deceased husband. Although the kinyan ishut is nullified by the husband’s death, nevertheless the shem eshet ish is not. The issur of ishut was not nullified by the by the husband’s death, if they were childless (in contrast to the case in which they have children, in which death is not only the absence of a husband, which nullifies the kinyan, but death is a matir, which nullifies the shem eshet ish). The question arises: what makes the issur eshet ish continue after the husband’s death? The answer is – the yavam. The living brother “inherits,” as it were, the kinyan issur of the deceased brother. It is not the case that there is a new kinyan, but the yavam comes in place of his deceased brother and holds – frozen, as it were – the old kinyan issur.

 

            According to this, the law of “the wife of two deceased men” is a rule that the surviving brother does not “inherit” two kinyanei issur. In our case, the Rashba explains, there are not two kinyanei issur, because Shimon’s kiddushin did not create a new kinyan issur in regards to Reuven. It is true that Reuven is prohibited to the woman, but that is only because of the part of her which is mekudeshet to Shimon. In the part of the woman mekudeshet to Reuven, she is permitted to him as before Shimon’s kiddushin. It is only because of the fact that it is impossible to have relations with half a woman that in actuality he is prohibited to have relations with the woman, but on the level of the kinyan issur, she is permitted to him. Therefore, there is no problem of the wife of two deceased men.

 

 

            Our gemara is constructed as follows: In regards to gerushin, R. Eliezer has a verse (or two) that make gerushin with an exclusion possible. According to the Rabbanan, although the gemara does not ask what the Rabbanan’s reasoning is, nevertheless it turns out that there is a requirement of “kritut,” that is to say, a total detachment, because of which the Rabbanan deem partial gerushin impossible.

 

             R. Abba asked: What in regard to kiddushin? The gemara explains that the question, both according to R. Eliezer and the Rabbanan, is, do we link kiddushin to gerushin, that is to say, do we say that the din of kiddushin is the same as the din of gerushin? Logically, without a formal textual link, the gemara is willing to accept the possibility that while there is no partial gerushin, since we require an absolute level of “kritut,” but in regards to kiddushin there is nothing that prevents a man from being mekadesh partially, “except for Ploni.” In the gemara’s words, it is sufficient that there be a kinyan kol d’hu, any level of kinyan. On the other hand, the opposite is possible. It could be that regarding gerushin, R. Eliezer regards gerushin with something left out as possible, in accordance with the drashot cited above by the gemara, but in regards to kiddushin, in the absence of a biblical source, we require a “kinyan me-alya,” a complete, full-fledged kinyan.

 

            At least in regard to the Rabbanan, the situation in the Yerushalmi is precisely the  opposite. The Yerushalmi asks (in contrast to the absence of this question in the Bavli): what is the Rabbanan’s reasoning? The Yerushalmi’s answer is:

 

 

             From the Yerushalmi, it seems that it is obvious to the gemara, with no source whatsoever, that partial kiddushin are impossible. It’s impossible to even conceive that a woman can be mekudeshet and yet be permitted to someone else. From a simple reading of the gemara, the implication is that R. Eliezer agrees with this (in contrast with the conclusion of the sugya in the Bavli, that R. Eliezer disagrees with the Rabbanan regarding both gerushin and kiddushin). Rabbanan, in linking yetzia to havaya (and not havaya to yetzia, as the Bavli does) learn that in gerushin as well, even though logically leaving something out is more likely to be possible, nevertheless exclusion cannot be made possible, and there is no partial gerushin.

 

            What lies behind the Yerushalimi’s evident reasoning that in regard to kiddushin, havaya to someone else is impossible? It seems that to the Yerushalmi, it’s obvious that kiddushin means yichud – the woman is designated uniquely to the man and is separated from the rest of the world. We see this concept in the Rambam (Ishut 10:1) regarding nissuin, which the Rambam describes as a process in which the man “brings her to his home and secludes himself (mityached) with her and separates her (from others) to himself.” Marriage is defined as the woman’s being uniquely designated to the man on one hand, and on the other hand separated from others to him, that is to say separated from the whole world. It seems that to this Yerushalmi, this is the fundamental idea, the very concept of kiddushin. Therefore, exclusion in kiddushin is not a halakhic defect, but a contradiction in terms to the very concept of kiddushin. In contrast, gerushin need not be total to the same degree. Logically (and also according to R. Eliezer), someone can take apart the yichud he created in stages. Except that, according to the Rabbanan, the Torah came and determined that gerushin is the converse parallel to kiddushin, and just as a woman cannot be mekudeshet partially, so too gerushin cannot be performed partially.

 

            (I know of a case which happened 40 years ago. A non-observant married Jewish couple became observant and established a bayit neeman b’Yisrael. At some point, after they kept Jewish law scrupulously, they came to Rabbi Moshe Feinstein z”l with a question. It was clear that when they were non-observant, their mutual connection was based on the intention that they love one another and wish to spend their lives together, but it was agreed that if one of them wants a certain degree of freedom to connect to someone else, there is nothing to prevent this. In fact, the woman indeed made use of this escape clause. Now, after they became observant, they learned the law that a married woman who is promiscuous is prohibited to her husband, and they asked R. Moshe z”l if they are obligated to divorce. R. Moshe said that they were not, at the outset, married at all, because nissuin which are not exclusive are not nissuin at all, even if they were married with chuppa and kiddushin, a ring, and a ketuba. The escape clause they left themselves contradicts the very concept of marriage, which includes the idea that the woman is meyuchedet to the man, and separated from all other men.)

 

            As stated, the position of the Yerushalmi is the opposite of that of our gemara. The Yerushalmi makes gerushin dependent on kiddushin, since yetzia is linked to havaya. The Bavli makes kiddushin dependent on gerushin, since havaya is linked to yetzia. In its conclusion, the Bavli holds that R. Eliezer makes leaving someone out possible in kiddushin as well. According to the Yerushalmi, there is no one who thinks this way. However, at least in regards to the Rabbanan’s position, the two Talmudim meet – what is obvious to the Yerushalmi that there is no kiddushin with an exception, is the Rabbanan’s position according to the Bavli, as a result of the linking of kiddushin to gerushin. When all has been derived, just as gerushin must be kritut – a total separation of the couple from each other, so too kiddushin must be a total connection, with no exceptions.

 

 

Gittin 03

1. Gemara 83a “Tam Rabbanan …” until 83b “…zaken echad ka matni,” Rashi.

2. Rashba 83a s.v. “Nimtza,” Rama s.v. “tanu rabbanan.”  (Ofek ed: p. 309, Mossad HaRav Kook ed. of the Ritva, p..365).

3. Tosafot 82b s.v. “kigon”

4. Rashba s.v. “ve-avra.”