Yeshna Li-sekhirut Mi-tchila Ve-ad Sof

  • Rav Ezra Bick
[The sugya of sekhirut is first discussed on Kiddushin 48a-b.  You should prepare that sugya before beginning the shiur.]
            The mishna (63a) states that if one says, "you are betrothed to me on the condition that I speak on your behalf to the ruler, or that I serve as a worker for you," the kiddushin is valid if he fulfills the stipulation.  Abbaye explains that this is true only if he also gave her a peruta.  In other words, the action he performs is a condition, a tnai, of the kiddushin, but is not itself the kesef, which effects the kiddushin.  A peruta must be given independently of the services he renders.  However, he must also perform that service since he stipulated that kiddushin would not take effect otherwise.
            The gemara asks why the service rendered cannot serve as kesef kiddushin, since it presumably is worth a peruta, and supports this question with a braita which in fact appears to validate such a case without requiring an additional peruta.  Abbaye answers that this question depends on a disagreement concerning the nature of the obligation to pay wages to a worker.  If "yeshna li-sekhirut mi-tchila ve-ad sof" (YLMVS) - wages are incurred incrementally as the work is performed, then labor cannot serve as kesef kiddushin; if "eina li-sekhirut ela ba-sof" (SOF) - wages are incurred only at the conclusion (of the work) - then the labor can effect kiddushin without any additional kesef.
Understanding the Argument - YLMVS or SOF
            This distinction, and its connection to kiddushin, was first stated in the second chapter of Kiddushin (48a).  The case there reads as follows: "(She says) 'make me... (jewelry) and I will be betrothed to you' - when he makes them, she is betrothed.  This is the opinion of R. Meir.  The Chachamim say that she is not betrothed until "money comes into her possession."  The gemara raises several explanations of the controversy.  The second one is: "Both sides maintain that mekadesh be-milveh (betrothing with a loan) is not effective.  The argument here concerns yeshna li-sekhirut mi-tchila ve-ad sof.  One side maintains that wages are incurred only at the conclusion of the work, and one side maintains that wages are incurred incrementally.  Rashi explains:
"YLMVS - every peruta (worth of work), when it is completed, the owner is obligated to pay it to the worker as wages for the performance of the work; hence, when he returns it to her, it is retroactively like a loan.  Eina li-sekhirut ela ba-sof - When he returns it to her, and then he is waiving it for the sake of kiddushin; so there is no loan when he returns it to her."
            At first glance, the explanation appears simple.  The difference between the two positions concerns the TIME of the obligation to pay.  If the obligation to pay the worker or provider of a service is incurred continuously in an incremental fashion, i.e. YLMVS, whereas the kiddushin is to be effected only at the conclusion of all the work, then in the meantime she only has a monetary obligation - i.e. a loan.  At the end, when he wants to betroth her, he is in effect canceling the monetary obligation, and this is mekadesh be-milveh, which, as we have previously (6b) seen, is invalid (see shiur #9).  However, according to SOF, the total obligation is incurred at the same moment that kiddushin is meant to occur, so the woman has no prior monetary obligation - she is immediately betrothed.
            There are a number of problems with this explanation.  Some are technical - what if the service provided is not a drawn-out process, but one single action which is immediately beneficial to the woman?  The case of "speaking to the ruler" might be understood this way.  In such a case, there is no difference in TIME between the two positions.  Or suppose the work consists of distinct units which are each individually worth a peruta?  Then even according to YLMVS there should be kiddushin based on the last unit, even if the previous units had turned into loans.
            There is, however, a more basic problem.  We saw in the first mishna of this perek that one may effect delayed kiddushin - "le-achar shloshim."  One can give a ring today and state that the kiddushin should be effected thirty days later.  In such a case we do not say that the ring has become a loan, and thirty days later it is a case of mekadesh be-milveh.  The gemara (59a) asked this question, and explained that here the ring has been given explicitly for the purpose of kiddushin from the beginning, whereas, mekadesh be-milveh refers to a case where the money was originally given under the assumption that it would be paid back in kind, and only later does the man suggest that instead of repayment she should be betrothed.  We see that the crucial point is that the "peruta" be given with the understanding that it will engender kiddushin and not a monetary re-payment.  Hence, the distinction between YLMVS and SOF is no longer clear.  In both cases, he is working under the understanding that she will not pay him money, but be married instead.  What difference does it make if the kesef kiddushin is given in installments - incrementally - or in one large sum - at the end of the work?  The Tosafot Rid asks this question, and cites the gemara (47a) that says that if one says: Be betrothed with these (a number of  fruit), even if she eats each of them immediately, before they add up to a  peruta, she is betrothed.  Using a drawn-out service, or using a number of small objects, would appear to be equivalent cases.
I. The Ritva
            The Ritva (48a) states that according to SOF, the obligation is incurred when the object is returned to the owner and not when the work is finished.  Were this not true, he claims, it would be a case of milveh even according to SOF, since the obligation is a loan from the time the work is finished while kiddushin is only effected when he delivers the object.  This problem is, in effect, the other side of our question.  Assuming that YLMVS is a milveh, then SOF is also a milveh.  His answer is to delay the onset of the obligation to the time that the worker returns the object to the owner.  Essentially the same position is maintained by the Tosafot Rid (48a).
            The Ritva is assuming that kiddushin takes place only when the object is handed over to the woman.  It is clear, however, that the object per se is not the kesef kiddushin.  The object belongs to the woman and therefore cannot effect kiddushin.  The next explanation offered in the gemara (48b) is "uman koneh bi-shvach kli" - an artisan is the owner of the value added to the improved utensil.  THIS latter explanation assumes that the object, or rather that part of the object which actually belongs to the worker, is the kesef kiddushin.  However, the answer we are discussing does not assume that uman koneh bi-shvach kli - in other words, the worker has no monetary interest in the object itself.  What role, then, does the return of the object serve in effecting kiddushin?
            The answer, it would seem, is that according to the Ritva the argument of YLMVS and SOF is not only one of the time of the obligation, but of the nature of the obligation itself.  According to SOF, a worker is giving something - his labor - to the one who ordered the work.  The actual work is performed over a period of time, but it is received by the owner upon delivery of the object.  Although the object is totally the property of the owner, the labor, treated as an object of value, belongs to the worker and is given to the owner as an inherent aspect of the giving of the object.  The obligation to pay a worker derives from your having received something from him - one pays in exchange for the work.  Hence, the obligation is engendered only "ba-sof" - when the object is delivered, which is also when the work is delivered.  The labor, considered an object of value, can also serve as kesef kiddushin, if it is given for the purpose of kiddushin.  Any object of value can serve as kesef kiddushin, and in this case the work of the laborer takes the place of a peruta.
            However, the opinion of YLMVS differs on the nature of work and its concomitant obligation.  If I work for you, I have not given you an object.  Nothing is being transferred between us.  Your obligation to pay derives from your agreement to do so - it is a pure 'hitchayvut,' a self-imposed obligation.  You are paying me in order to work, not in exchange for my work.  If I agree to do something, you agree to pay me.  Hence, the obligation to pay is continuous - every bit of work performed is compensated, even though the owner has not received anything from the worker.  On the other hand, there is no object that can serve as kesef kiddushin here, since the worker is not giving the owner anything.  It is true that he is waiving the obligation to pay, which is surely worth a great deal to the woman, but that is precisely milveh - the release from payment rather than the transfer of a new object of value.
            In this way, our original questions are answered.  Defining an object as kesef kiddushin in order to perform a delayed kiddushin only works if an object was initially transferred.  According to YLMVS, there is no such object.  Only if an obligation to repay money takes effect, and then is waived, is there any such object - but then it is defined as milveh.  This is true even if all the work, worth more than a peruta, is performed in a single act, so that there is no time delay between the obligation and the kiddushin.  If there is no object transferred between the man and the woman, there can be no kiddushin.  On the other hand, according to SOF, when the jewelry is delivered, the woman receives an object - the work - which is worth a peruta and she can be betrothed in return.
II. The Rambam
            The Rambam (Hilkhot Ishut 5:19-20) divides the halakhot of this sugya into two:
"If he said to her: 'You are betrothed to me in lieu of payment for my speaking to the ruler on your behalf,' and he spoke to the ruler and the ruler relented and did not sue her - she is not betrothed unless he gave her a peruta of his own, as the benefit (hana'a) which accrues to her from his speaking is like a loan, and if one betrothes with a loan (mekadesh be-milveh) she is not betrothed (5,19).'You are betrothed to me with the work that I will do for you,' and he did it - she is not betrothed unless he gave her a peruta of his own; for wages encrue to a worker incrementally - as he does a bit of the work he acquires a right to a bit of the wage; hence the entire wage is a loan by her, and if one betroths with a loan she is not mekudeshet (5:20)."
            It is striking that the first section does not mention the principle of YLMVS in order to explain why it is a loan.  Rather, the Rambam writes that the hana'a here is like a loan.  This Rambam should be studied in the context of the previous six halakhot (ibid. 13-18), where the Rambam outlines his position that kiddushin requires not only kesef, but also hana'a.  Accordingly, the Rambam explains that mekadesh be-milveh is invalid because there is no hana'a at present (13 - "there is no existent thing from which to benefit at this time").  The reason for the ineffectiveness of speaking to the ruler is that there is no hana'a at this time - the benefit to the woman is that the ruler DID NOT SUE HER; i.e., she will not have to pay out money.  Hence, the Rambam stipulates that the ruler agreed not to sue her - in other words, the kesef kiddushin is not the work he is doing (speaking to the ruler) or the wages she owes him, but the attendant benefit from the actions of the ruler, for which he is responsible.  Since that benefit is a negative one - the prevention of an anticipated loss - it does not meet the criterion of hana'a, similar to milveh, where the hana'a - exemption from repaying the loan - is negative as well.  The wages that the woman owes the man in return for his service have nothing to do with this case, and therefore YLMVS or SOF are irrelevant.  (The reason that the service provided by the man is not a candidate for kesef kiddushin is, I think, because it is not a commercial service; there is benefit but it is not shaveh peruta in the sense that it is not something that has commercial value.  But that is another topic, which was discussed in the first perek.)
            On the other hand, the benefit she derives from the ruler, were it positive in nature, could serve as kesef kiddushin.  Since it is received at once, is worth more than a peruta, and apparently can be considered to arise from the actions of the man, it is the equivalent of a peruta given by the man to the woman.  There is no incremental problem here, as a full peruta accrues to the woman at once.  The problem is that this peruta carries no positive hana'a, and hence she is not betrothed.
            Only in the next section does the Rambam need the principle of YLMVS.  Here the work he performs is the intended kesef kiddushin.  This work carries a positive benefit for the woman and hence does not suffer the disability of the previous case.  Here the reason is that the wages are incremental.  The Rambam emphasizes the fact that the increment is continuous - for every small bit of work there is a small bit of wage; in other words, there is never a peruta at one time.  It appears to me that in the previous case, where the service of the man consists of his intercession with the ruler, were that to have been an acceptable example of kesef, it would not have been disallowed because of YLMVS (which the Rambam has not yet revealed).  The reason is that, as we pointed out in our original questions, the benefit of a peruta here is in "one blow," so that there is no problem of incrementality.  (New word!!!!)  In other words, I am claiming that according to the Rambam the problem with YLMVS is that the individual increments are all less than a peruta.  The case of speaking to the ruler is not a contradiction, since the Rambam explains the case differently.
            Why are the individual less-than-a-peruta increments not integrated into one drawn-out act of giving (the question of the Tosafot Rid)?  I would like to suggest an answer based on the approach of the Tosafot Rid himself.
III. Tosafot Rid
            In discussing the Ritva above, I referred to the Tosafot Rid on the sugya in the second perek (48a).  The original question posed in the beginning of the shiur was taken from the Tosafot Rid in the third perek (63a).  I am unable to fully explain his answer there.  He writes a great deal, and I fail to understand the function of parts of what he writes.  Hence, what follows cannot claim to be the position of the Tosafot Rid.  I shall focus solely on the last few lines of his discussion, expanding on a distinction he makes in order to explain the Rambam.
            There (a case of mekadesh be-milveh), the groom did not propose and did not inform her originally (before performing the service) that he was doing so in order to betroth her; hence it is a case of mekadesh be-milveh.  But here, however, he proposed and said that he will betroth her with that wage in the future; hence it is not a loan owed to her since he is doing it with the intent to betroth her with that wage.
            However, if we say YLMVS, since he does not betroth her before the conclusion, it is a milveh, even though he informed her that he wants to betroth her with that wage, as we see in the previous perek (46a): "Be betrothed to me with this and this and this, and she ate them consecutively, she is not betrothed unless the last one is worth a peruta," as the earlier ones are milveh.
            Earlier the Rid had compared our case to one where he said: Be betrothed with these (referring to several fruit), where she is betrothed even though she has eaten them in turn before they could add up to a peruta.  He is referring to a distinction offered by Rava (47a).  "Rava said: (She is not betrothed if she has eaten them consecutively) in a case where he said, 'this and this and this;' but if he said 'with these,' even if she has eaten them she is betrothed."  Linguistically, our case, where he says she should be betrothed with his work, appears to be more similar to 'these,' where one phrase includes all the separate objects, than to 'this and this and this,' where they are distinct.  Nonetheless, the Rid's conclusion is that the case of 'this and this and this,' where the kiddushin is invalid, is the proper comparison.
            In both cases, all the dates are given in order to effect kiddushin.  The difference would appear to be that in the case of 'these,' there is only one act of giving, albeit a drawn-out one.  Where he has said 'this and this and this,' each act of giving her a fruit constitutes a separate act.  Since kiddushin is not effected after the first (since he wants her to be betrothed with all of them), and the act is conceptually complete, it is defined as an act of milveh.  However, where he has said 'these,' the giving is one long act and as one act it effects kiddushin.  Hence, all of it is defined as an act of kiddushin, not milveh.
            In the case of the giving of work, rather than an object, the Rid seems to be arguing that ipso facto there are many individual acts of giving.  Even if he has expressed himself in a single word, the acts cannot be integrated into one.  The Rambam hints at the reason - each bit of work obligates a bit of wage.  This is precisely the position of YLMVS according to the Rambam - the work is not seen as a single drawn-out action, which would engender a single obligation at its conclusion, but rather as a series of actions, each one of which can engender a separate obligation.  Hence, since an individual act of work is complete, and kiddushin is not effected, it must be defined as a milveh.  On the other hand, the opinion of SOF maintains that there is only one wage-obligation engendered by the work taken as a whole.  In other words, there is only one act of work, drawn-out in time.  Since that single act effects kiddushin at its conclusion, it may be defined as a single drawn out act of kiddushin and not as milveh.
            Accordingly, the argument of YLMVS and SOF is how to understand the continuum of work - as a single act defined by its purpose and effect, or as the equivalent of a series of distinct mini-actions, each one of which must be defined separately.
            Why, according to YLMVS, does the use of a single unifying description not achieve integration, as it does with fruit, which are physically more distinct and less continuous than the work?  The answer, I believe, is simple.  Physical objects can be combined into one.  He could have given all of them together in one bunch at a single time.  The parts of a drawn-out action, however (if you define them as having parts, as YLMVS does) cannot be unified.  By definition, a process must be drawn-out.  This is precisely the argument.  SOF sees a process as, by definition, a unity.  YLMVS sees it by definition as a series which defies integration.  The separate fruit are more distinct physically, but are not essentially so.  Hence they are subject to the arbitrary definition of the groom.
            We have presented two approaches to the disagreement of YLMVS and SOF:
1. They argue about the nature of hire.  One sees it as an exchange of objects - work in return for moneys, while the other views it as an obligation assumed on the condition that the work be performed.  Aside from the question of when the obligation is incurred, this results in a disagreement whether the work can be kesef kiddushin.
2. They argue about the nature of a process - the services rendered when taken as a whole.  One sees it as an integrated unity (and hence a peruta-worth object), while the other views it as a series of distinct objects, each of which is less than a peruta.
Sources and Questions for next week's shiur:
Topic - "Himneih Rachmana Le-av:"
1) Mishna 64a "Kiddashti...," gemara until next mishna.  What are the two possible ways of understanding the relationship between the first suggestion and that of Rav Ashi?  See Ritva (Ketuvot 22a s.v. Minayin).
2) Ramban s.v. Ha, Ritva s.v. Nishbeit.  How does this issue reflect the disparate understandings of Rav Ashi?
3) Mishna 63b, gemara "Iba'i... (64a) matni."  How might the machloket between Rav and Rav Asi relate to the previous issue?
4) Rambam Hilkhot Sanhedrin 16:6.  How can this concept be used to suggest an alternative explanation of Rav Asi?
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