Kiddushin 5b (ה:) — the Talmud in English

The ḥuppah,

whose power is greater,

so that

it

completes

the process of removing the daughter from her father's authority [for once she has been given over to ḥuppah, her earnings and inheritance no longer belong to her father], and

is it not logical that it should acquire

the acquisition of kiddushin?!

And from here Rav Huna learned that ḥuppah effects the acquisition of kiddushin.

And we challenge this: The kal va-chomer can be rejected, by saying:

Consider

what

is the reason

money

effects the acquisition of kiddushin? —

Because

it is the case that

consecrated property and second tithe are redeemed with it.

Therefore, its power is great, and it is also effective for acquiring the woman. But ḥuppah, with which consecrated property and second tithe cannot be redeemed, should likewise not effect the acquisition of the woman!

And we answer:

Intercourse proves it!

The acquisition of kiddushin does not depend on the fact that consecrated property and second tithe can be redeemed with it, for consecrated property and second tithe cannot be redeemed through intercourse, and nevertheless intercourse effects the acquisition! And the same may be said of ḥuppah.

But this can be rejected, by saying:

What

is the reason

intercourse

effects the acquisition of kiddushin? It is because its power is great,

because

intercourse

effects the acquisition of a yevama.

But ḥuppah, which does not effect the acquisition of a yevama, should likewise not effect the acquisition of the woman!

And we answer:

Money proves it!

The acquisition of kiddushin does not depend on the fact that it effects the acquisition of a yevama, for money does not effect the acquisition of a yevama, and nevertheless it effects the acquisition of a woman; and the same may be said of ḥuppah.

And the argument returns [

we must return and ask whether perhaps specifically money effects acquisition because consecrated property and second tithe are redeemed with it, and again prove the matter from intercourse, and again raise the aforementioned question concerning intercourse—and so on forever].

Therefore we say:

The proof of this is not like the proof of that.

The stringency of money is not identical to the stringency of intercourse.

And the proof of this is not like the proof of that.

The stringency of intercourse is not identical to the stringency of money.

But

the common factor between them is that

they

effect acquisition in other contexts [

money, in the case of a Hebrew maidservant, and intercourse, in the case of a yevama],

and they effect acquisition

also

here,

in the kiddushin of a woman.

Therefore,

I too will include [

learn by analogy]

ḥuppah, which effects acquisition in another context [

in marriage], and therefore it

effects acquisition

also

here,

in the kiddushin of a woman.

And we refute this:

What is the common factor between them? Their benefit is substantial [

for when the woman receives the money or the intercourse, her benefit is substantial]. But ḥuppah does not provide substantial benefit. Therefore, it should not effect the acquisition of a woman through kiddushin!

And we answer:

A document proves it,

for the acquisition of kiddushin does not depend on its providing substantial benefit [since receiving a document does not provide substantial benefit].

And we refute this: It is impossible to derive the law of ḥuppah from a document, for one can say:

What

is the reason

that

the

document

effects acquisition? It is because

it removes her from the status of a daughter of Israel,

but ḥuppah, which does not remove her from that status, does not have the power to effect the acquisition of kiddushin!

And we answer:

Money and intercourse prove it,

for the acquisition of kiddushin does not depend on the fact that it removes her from the status of a daughter of Israel, since money and intercourse do not remove her from that status, and nevertheless they bring her in [and therefore ḥuppah, which does not remove her from the status of a daughter of Israel, likewise has the power to effect the acquisition].

And the argument returns [

we must return and ask whether perhaps specifically money and intercourse effect acquisition because their benefit is substantial; and again prove the matter from a document, and again raise the aforementioned question concerning the document—and so on forever].

Therefore we say:

The proof of this is not like the proof of that,

for the stringency of money and intercourse is not identical to the stringency of a document.

And the proof of this is not like the proof of that.

The stringency of a document is not identical to the stringency of money and intercourse.

But

the common factor between them is that they effect acquisition in other contexts [

money and a document, in the case of a Hebrew maidservant, and intercourse, in the case of a yevama],

and they effect acquisition

also

here,

in the kiddushin of a woman.

Therefore,

I too will include [

learn by analogy about]

ḥuppah, which effects acquisition in another context [

in marriage],

and

therefore it

effects acquisition

also

here,

in the kiddushin of a woman.

And we reject this:

What is the common factor between them?

The reason they effect acquisition here is

that they are found,

that they effect acquisition in another context,

against her will:

money effects the acquisition of a Hebrew maidservant against her will, a document effects divorce, and intercourse effects the acquisition of a yevama, and therefore their power is great. By virtue of this, they effect acquisition even in kiddushin.

But ḥuppah is not effective against the woman’s will, and therefore one might say that it likewise should not effect the acquisition of kiddushin!

And we resolve the words of Rav Huna:

And Rav Huna,

who learned the law of ḥuppah from the common factor, will answer: The acquisition of

money, at least,

in any event,

in the context of marriage—

we have not found [

we have not found it]

against her will

of the woman. [

We do not take into consideration the fact that a Hebrew maidservant is acquired through money against her will, since that is not a matter of marriage].

Therefore, one can prove from the acquisition effected by money that kiddushin does not depend on its being against her will, for money does not effect acquisition in the context of marriage against her will.

Rava, however, disagrees with Rav Huna, and maintains that ḥuppah does not effect the acquisition of kiddushin:

Rava said: There are two answers to the matter!

The kal va-chomer stated by Rav Huna can be rejected on the basis of two arguments:

One,

one argument:

For “

the woman is acquired in

three

ways,”

we learned, and

if there were

four

ways,

we did not learn that.

This proves that a woman is not acquired through ḥuppah [for according to Rav Huna, who maintains that a woman is acquired through ḥuppah, it would have been appropriate for the Mishna to teach four ways]!

And further,

another argument:

Is it at all the case that

we have not found that

ḥuppah completes the process except through

having been preceded by

kiddushin [

for marriage cannot be performed except after kiddushin].

If so, this is difficult:

Do we derive [

learn]

the law of ḥuppah

that it should effect acquisition

without kiddushin, from ḥuppah that

completes the process

through

the

kiddushin

that preceded it?!

Abaye said to him,

Rava: Your arguments can be rejected:

a.

As for

the first argument,

that you said: “

Three

ways”

we learned, and “

four

ways”

we did not learn!

One can say:

The tanna teaches only a matter explicitly written

in the Torah. The tanna taught only forms of acquisition that are explicitly derived in the Torah. But ḥuppah, which is

a matter not explicitly written

in the Torah, but which we learned through a kal va-chomer,

he did not teach.

b.

And

as for the second argument,

that you said: “Is it at all the case that ḥuppah

does not

complete the process except through kiddushin,”

and therefore one cannot derive from it that ḥuppah effects acquisition even without kiddushin! One can say:

Rav Huna too

included all this in the kal va-chomer.

And this is what he said:

Just as money, which does not complete the process [

of marriage], even

after money

for kiddushin, nevertheless

effects acquisition [

without being preceded by kiddushin],

ḥuppah, which completes the process

of marriage

after

the acquisition of kiddushin through

money,

should it not

logically effect acquisition

even without kiddushin preceding it?! And from here Rav Huna learned that ḥuppah effects acquisition.

We learned in the Mishna:

The Gemara cites a beraita explaining how the acquisition through money is performed:

The Sages taught:

How is it performed through money?

If he gave her

the woman

money or an item of monetary value, and said to her, “

Behold, you are betrothed to me,”

or

“Behold, you are engaged to me,”

or “

Behold, you are mine as my wife” [

as a wife]”—

she is betrothed.

But if she [

the woman]

gave

the money

and she said

to the man, “

Behold, I am betrothed to you,”

or “

Behold, I am engaged to you,”

or “

Behold, I am yours as your wife” [

as a wife]”—

she is not betrothed.

Rav Pappa raised an objection:

The beginning of the beraita contradicts its end:

For at first the beraita explained that kiddushin through money is performed by the man giving the money and saying, “Behold, you are betrothed to me”:

And it follows

by implication—

the reason the kiddushin takes effect is

that he gave

the money

and

also

he said

the formula of kiddushin.

But

if

he gave

the money

and she said, “

Behold, I am betrothed to you”—

she is not betrothed.

Now say the latter clause,

that is, state the end of the beraita:

But if she gave him

money

and she said, “

Behold, I am betrothed to you”—

the kiddushin does not take effect.

And it follows

by implication—

the reason these are not kiddushin is

that she gave

the money

and

also

she said

the formula of kiddushin. But

if

he gave and she said,

the kiddushin takes effect.

Thus, the first clause and the latter clause contradict one another with regard to the case in which he gave and she said! For the first clause implies that it is not kiddushin, whereas the latter clause implies that it is kiddushin.

And we resolve the words of the beraita:

The first clause—

precisely.

The first clause was stated precisely, so that we should infer from it that if he gave and she said, she is not betrothed.

But

the latter clause—

it was mentioned incidentally.

The tanna stated the latter clause “for no particular reason” [since the first clause taught “he gave and he said,” the contrasting case was taught in the latter clause: “she gave and she said,” which is the case opposed to the first clause. But the latter clause was not written so that we should infer from it the law where he gave and she said].

And we ask: It is true that in several places we find that the tanna teaches the latter clause incidentally to the words of the first clause. But we find this only when no law contradicting the first clause can be inferred from the latter clause. Here, however [where we have said that the latter clause was taught incidentally to the first], a law contradicting the first clause can be inferred from the latter clause. Therefore, this is difficult:

And

is it appropriate

to teach in the latter clause a matter that contradicts the first clause?!

Is it appropriate to teach in the latter clause a law that implies that it contradicts the first clause?!

And we answer:

Rather, this is what he said:

This is what the tanna [who taught the beraita] intended to say:

If he gave and he said—

it is obvious that the kiddushin takes effect.

This was taught first in order to continue and state the novelty in the latter clause—

That if

he gave and she said—it

is treated as though “

she gave and she said,”

and the kiddushin does not take effect.

And this is what the beraita said in its latter clause: “But”—the law differs from what we stated in the first clause, for if he gave and she said, the matter is treated as though “she gave and she said,” and therefore “she is not betrothed.”

Alternatively, you may say,

there is another way to answer:

This is what the tanna said:

If he gave and he said—

certainly

she is betrothed.

If she gave and she said—

certainly

she is not betrothed.

And we infer from here that if

he gave and she said—

it is uncertain.

This is a case of doubtful kiddushin, and

we are stringent by rabbinic ordinance.

If he gave and she said, and afterward another man came and betrothed her in accordance with the law, we are stringent by rabbinic ordinance and are concerned that perhaps the first kiddushin was not kiddushin, so that the second kiddushin took effect and, by virtue of it, she became forbidden to the first man.

We are likewise concerned that perhaps the first kiddushin was valid, so that by virtue of it she became forbidden to the second man. It follows that the woman is forbidden to both of them. If she wishes to marry another man, she requires a bill of divorce from both of them.

We learned in a beraita: He said to her, “Behold, you are betrothed to me,” “Behold, you are engaged to me,” and so on. Since the beraita mentioned several formulations of kiddushin, the Gemara discusses at length several other formulations, whether they are effective for kiddushin:

Shmuel said: Regarding

the matter of

kiddushin:

If

he gave her money or an item of monetary value and said to her: “Behold, you are betrothed,”

or

“Behold, you are engaged,”

or

“Behold, you are mine as my wife

[as a wife],” and he did not conclude by saying “to me”—

she is betrothed

to him, and we are not concerned that perhaps he intended to betroth her to someone else.

And if he said:

“I am your husband,”

or

“I am your master,”

or

“I am your betrothed,”—

there is

not even

a basis for concern [a concern] regarding a possible divorce. This is because it is stated in the Torah [Deuteronomy 24]: “When a man takes a woman,” which implies that he must take her into his domain, and not that he takes himself into hers [and the woman is permitted to marry anyone without a get].

[a concern] about the possibility that she was divorced. For the Torah says [Deuteronomy 24]: “When a man takes a woman,” which indicates that he must take her into his possession, and not take himself into hers [and the woman is permitted to marry anyone without a bill of divorce].

Likewise, regarding

the matter of

divorce:

if he

gave her

a get,

and said to her: “You are hereby released,”

or

“You are hereby divorced,”

or

“You are hereby permitted to any man,” \-

she is divorced.

But if he said:

“I am not your husband,”

or

“I am not

your master,”

or

“I am not your betrothed,” there is

not even

a basis for concern [a concern] regarding a possible divorce. And if the woman was an Israelite woman married to a kohen, she may eat teruma and need not be concerned that perhaps she is divorced.

[a concern] about the possibility of divorce. And if the woman was an Israelite married to a kohen, a member of the priestly family with the right to perform the Temple service, she may eat teruma, the food given to a kohen, and need not be concerned that perhaps she is divorced.

Likewise, if she is widowed by her husband, she is permitted to marry a kohen, and there is no concern that she is subject to the prohibition of a divorced woman. These are Shmuel’s words.

At the beginning of his statement, Shmuel said that if one says, “You are betrothed,” and does not say, “to me,” she is betrothed to him, and we are not concerned that he intended to betroth her to another person.

We learned at the beginning of tractate Nedarim [2a, and in the Gemara there on 2b]: “All abbreviated formulations of vows are equivalent to vows.” That is, if one uses a partial expression from which it appears that he intends to make a vow, but he did not state a complete formulation of a vow, it is nevertheless considered a complete vow.

And the term “abbreviated formulations of vows” (yadot nedarim, literally, “handles of vows”) was applied to them because they are like the handle of a vessel: when one grasps the handle and lifts it, the entire vessel rises with it, even though he is not grasping the vessel itself. [Similarly, when one uses an incomplete formulation, it serves as a handle for the vow, as though he had stated the entire vow.] [Explanation of the Rosh, Nedarim 2a].

Abaye and Rava disputed [there, 5b] the status of “unestablished abbreviated formulations,” an expression that does not establish with certainty that the speaker intended to make a vow.

Abaye said: Unestablished abbreviated formulations are valid abbreviated formulations. And Rava said: They are not valid abbreviated formulations.

Rav Pappa said

to Abaye: Does this mean

that Shmuel’s reasoning [when he said that if one says, “You are betrothed,” and does not say “to me,” the kiddushin is valid] was

that Shmuel holds that unestablished abbreviated formulations are valid abbreviated formulations?

For although there is no proof that the man performing the kiddushin intended to betroth the woman to himself, it is considered an “abbreviated formulation,” and she is betrothed to him?

And

there is a contradiction to this:

we learned [Nazir 2b]:

the one who

One who says “

I shall be” [

I shall be ]

is a nazirite.

And we raised this difficulty

in tractate Nazir: Why is one who says, “I shall be,” a nazirite?

Perhaps

he said,

“I shall be fasting,”

and did not intend to say, “I shall be a nazirite”!

And Shmuel said:

An additional condition must be added to the statement of our Mishna:

“And this is the case when a nazirite was passing before him,”

specifically, when a nazirite passed before him, making it evident that he intended to say, “I too shall be like this.”

Rav Pappa inferred from Shmuel’s statement:

The reason

that he is a nazirite is specifically because

a nazirite was passing before him.

And it follows that

if this were not so, he would not be.

This demonstrates that Shmuel holds that unestablished abbreviated formulations are not included among “abbreviated formulations.”

But this contradicts what Shmuel said regarding kiddushin: that if one says, “You are betrothed,” and does not say, “to me,” the kiddushin is valid [even though there is no indication to whom he intended to betroth her]!

Abaye answered Rav Pappa:

What are we dealing with here—

what was Shmuel speaking about?

He said

“You are betrothed

‘to me.’”

And this is a complete formulation of kiddushin.

Rav Pappa returned and raised an objection:

If so,

if the case is indeed one in which he said, “to me,”

what does he teach us?

What is Shmuel teaching us? There is a complete formulation of kiddushin here, and it is obvious that she is betrothed!