Kiddushin Le-Achar Lamed Yom

Translated by Zev Jacobson

 

 

            The mishna states: "If one is mekadesh a woman so that the kiddushin should take effect only after thirty days [le-achar lamed yom] and, in the interim, she accepts kiddushin from another man, she is married to the second."

 

            There are two possible explanations for this din: 

 

1. Theoretically, one could have claimed that the kiddushin of the first had no effect whatsoever ,and it as if they never took place.  Therefore, the woman is free to marry whoever she pleases.

2. The original kiddushin are valid and, had they run their course uninterrupted, they would have taken effect after thirty days.  However, since in the interim the woman is not considered married she can accept kiddushin from another man.

 

            Rav and Shmuel [59a] agree that kiddushin le-achar lamed do take effect after the prescribed time period has passed, even if the kesef kiddushin is no longer in existence at this time. It is clear, therefore, that the first possibility is rejected, and kiddushin le-achar lamed yom are valid unless interrupted and nullified by a subsequent kiddushin within the thirty day period.

 

            The Yerushalmi (3:1) goes a step further: In the case of the mishna, if the second man died or divorced the woman  before the thirty day period had passed, the kiddushin of the first still take effect. In other words, even if a second kiddushin interrupted the first temporarily, since she is no longer married to the second man on the thirtieth day, the first kiddushin take effect.

 

            According to the above, it is possible to distinguish between the physical act of being mekadesh the woman [ma'aseh ha-kiddushin] and its consequences [the chalut].  In general the relationship between  ma'aseh and chalut is causal. The ma'aseh is the cause and the chalut is the effect. Accordingly, we must attempt to explain how in our mishna the chalut can be separated from the ma'aseh. (We are dealing with this problem from the limited perspective of kiddushin. For a broader picture, see Tosafot, Ketubot 82a s.v. Ha, Tosafot Yevamot 93a s.v. kenuya, Bekhorot 49.)

 

            The Rishonim argue as to the extent a split between the ma'aseh and the chalut kiddushin actually exists.

 

Rashba and Ramban:

 

            According to the Rashba, a distinction must be made between the physical transfer of the money [ma'aseh kiddushin] and the money with which the woman is mekudeshet [kesef kiddushin].  If the woman goes back on the kiddushin, she has to return the money to the man; therefore, by agreeing to the marriage, she benefits by not having to pay him back.  Thus, she actually receives hana'a at the time the kiddushin take effect, and this hana'a serves as the kesef ha-kiddushin.  Even though the ma'aseh ha-kiddushin takes place earlier, she is not mekudeshet with the money transferred then, but rather with the hana'a received le-achar lamed. Therefore, according to the Rashba, we can view the hana'a as the cause which effects the kiddushin.

 

            Similarly, the Ramban explains that the woman actually receives the money on loan and it only becomes hers when the kiddushin take effect.  This applies even if the money is no longer in her possession at the time.  Kiddushin le-achar lamed differ from marrying a woman with an already existing loan, since in the former, the money is given be-torat kiddushin (see shiurim # 9 and # 13.)  This explanation is similar to the Rashba: the kesef kiddushin is received at the time of the chalut. Whereas according to the Rashba the kesef kiddushin is the hana'a, the Ramban views the loan itself as the kesef kiddushin.

 

Ran and Ritva:

 

            The Ran, in his commentary on the Rif, makes it clear that the woman is mekudeshet with the money she receives at the time of the kiddushin and there is no split between the ma'aseh kiddushin and the kesef kiddushin.  This is precisely what the mishna is teaching us: It is possible for the ma'aseh to take place now even though the kiddushin will only take effect le-achar lamed.  The Ran rejects the possibility that the woman receives the kesef kiddushin at the time of the chalut as the gemara states that kiddushin take effect even if the money is no longer in existence at this time.

 

            Also according to the Ritva, the ma'aseh kiddushin is fully completed when the money is physically transferred as the man expresses his intent to betroth the woman with the money he gives her now.  However, in distinction to the Ran, the Ritva explains that the women is mekudeshet with the hana'a she receives from being able to spend the money as she pleases and not with the actual coins themselves.  This is despite the fact that she will have to return the money should she renege on the kiddushin at a later stage.

 

            To gain a greater appreciation of this opinion, let us examine another source.

 

            Kiddushin 60b: If a man divorces his wife le-achar lamed and the 'get' (divorce document) is destroyed before the allotted time passes, the divorce does not take effect.  The same is true if one was mekadesh a woman le-achar lamed using a shtar, or if one transferred ownership of a field le-achar lamed using a shtar.  The shtar must be in existence at the time of the chalut for the kinyan to take effect.

 

            This is understandable according to the Ramban and the Rashba who hold that the ma'aseh cannot be separated from the chalut and, therefore, the initial transfer of the shtar  cannot help to effect the gerushin le-achar lamed, if by that time the shtar has been lost or destroyed.  However, this gemara seems to contradict the view of the Ritva and the Ran that it is possible to do the ma'aseh now even though the chalut only takes place le-achar lamed.  One would have expected that the gerushin would take effect even though the get is no longer in existence.

 

            In order to solve this problem, we must modify our understanding of the Ritva and the Ran.  Even these two Rishonim agree that the chalut must be connected in some way to the ma'aseh.  There can be no effect without a cause  linked to it in some way. When the shtar is destroyed, this link is lost and the kinyan cannot take effect.  It is for this reason, too, that there can be no delayed effect when using  kinyan meshikha and kinyan chalipin, since the ma'aseh is momentary in nature, there is no cause that can effect the chalut thirty days later.  However, kinyan kesef has a different status.  As mentioned previously, if the woman decides to renege on the kiddushin she is obligated to return the money to the man.  As a result, there is a remnant of the kinyan kesef at the time of the chalut, and this is the chiddush of Rav and Shmuel.

 

            Tosafot (Yevamot 92b) express this viewpoint as follows: "Even though the money is no longer in existence, it is considered to be in the possession of the seller since, if the kinyan does not take place, he is obligated to return it and it is considered to be in existence with regards to kiddushin."  The Rashba (63a) and Tosafot (Ketubot 84a) use the same expression to describe the status of the kesef on the thirtieth day.

 

            Therefore, kinyan le-achar lamed, according to all opinions, will only take effect if the kinyan is done with kesef.  There is no distinction between kiddushei kesef and other kinyanim that are effected by kesef [such as the acquisition of property, for example].  It must be stressed, however, that a fundamental difference still exists between the opinion of the Ramban/Rashba and that of the Ritva/Ran.  The former do not recognize the possibility of separating the ma'aseh and the chalut whereas the latter hold that it is possible to separate ma'aseh and chalut, as long as there is some sort of connection between the two.

 

Gradual Development:

 

            Aside from the two basic explanations cited above, there is a third possibility that explains the din of le-achar lamed in a different manner: Instead of seeing the ma'aseh as taking place only initially (Ran), or only le-achar lamed (Rashba), one can view it as a gradual process.  The ma'aseh kiddushin begin initially, and becomes complete le-achar lamed.  This, however, can only happen if there is some remnant of the original ma'aseh.   Kinyan kissed fulfills this criterion as does kinyan shtar when the shtar has not been destroyed.  Kinyan meshikha and kinyan chalipin, though, cannot take effect le-achar lamed as once the act is completed there is no continuation to which one can contribute the gradual process of the ma'aseh.

 

            According to this explanation, there needs to be a continuous, uninterrupted link between the ma'aseh and the chalut.  Therefore, if another man was mekadesh the woman before lamed, this link would be broken and even if he subsequently died or divorced the woman, the kiddushin of the first would not take effect le-achar lamed.  This is in opposition to the opinion of the Yerushalmi. (see Rashba)

 

Summary:

 

            We suggested three approaches to understand kiddushin le-achar lamed:

 

1. We view the ma'aseh kiddushin as taking place at the point of the chalut, on the thirtieth day (Rashba).

 

2. The ma'aseh takes place immediately, but can nevertheless effect a delayed chalut (Ran).

 

3. The ma'aseh develops gradually.  It begins right away, however is considered to be complete only on the thirtieth day.

 

For further study:

How are the various descriptions of le-achar lamed relevant to the argument between Resh Lakish and Rav Yochanan regarding retraction before the thirtieth day (59a)?

 

 

SOURCES FOR NEXT WEEK'S SHIUR:

1. Kiddushin 59b "Mekudeshet le-sheni...cheshashah de-rabanan hu."

2. Gittin 82b "Ba'i Rebbi Abba...ba'inan ve-yatz'a ve-hayeta".

3. Rashba Kiddushin 59b s.v. Meitiv, Tosafot Rid s.v. Ve-R. Yochanan.

4. Rambam Hilkhot Ishut 7:12-13; 4:16.

 

            How is it possible for a woman to be married to two men simultaneously?  What are the two interpretations of R. Yochanan mentioned by the Rashba?

            What is the difficulty with the Rambam's ruling?