Kesef Kidushin on the Floor

Kidushin (1:1) | Yisrael Bankier | 3 years ago

This week we began masechet Kidushin. The first Mishnah opens with the three ways that kiddushin can be performed. In previous cycles we have discussed both kesef (money, vol. 3, iss. 38) and shtar (contract, vol. 9 iss. 39). When discussing the method of shtar, we mentioned that since the Torah teaches regarding divorce “…and she leaves his house (by way of divorce) and goes [and marries] another man” (Devarim 24b) it connects marriage and divorce. From this "hekesh" we learn that just as divorce is affected through a document, so can kiddushin. Due to the hekesh, other details that apply to a get also apply to shtar kiddushin. For example, we have seen in the previous article the debate whether a shtar kiddushin can be written on an issur hanaah – an object one is not allowed to derive benefit from. One law that is derived, is just like a get must be handed to the wife, so too the shtar kiddushin must be handed over. In other words, one cannot place the shtar on the floor and ask her to retrieve it. The question posed by the achronim is does that law also apply to kiddushin performed with kesef? Would kiddushin work if the man placed, e.g. the ring on the table and she retrieved it?

The Beit Shmuel (EH 27:3) is uncertain, and rules that the kiddushin is in doubt – safek mekudeshet. The Pitchei Teshuva (27:3) cites the Teshuvat Rashach who rules that there is no doubt and the kiddushin works, and that the debate is connected to the debate regarding whether kidushei kesef can be performed with something that is attached to the ground. Recall that one cannot write a get on part of a plant that is attached to the ground, since there cannot be any intermediary action (cutting it off the tree) in between writing and handing over the get. Due to the hekesh, we learn that this law also applies to a shtar kiddushin. The point that is debated is whether the hekesh also affects kiddushin performed with money. Consequently, those that maintain that kesef kiddushin1 that is attached to the ground can be used, would also maintain that if the kesef kiddushin was placed on the ground for her to retrieve, it would also work.

The Beit Shmuel, who we cited previously as being uncertain with this law, earlier (27:1) writes that kesef kiddushin that is attached to the ground can be used. Considering the comment of the Teshuvat Rashach above, it should be clear to the Beit Shmuel that kesef kiddushin placed on the ground should work. Why then is he in doubt regarding this law?

To explain, there are two reasons why Beit Shmuel rules that kesef kiddushin attached to the ground is valid. One is that we do not find the usage of money in divorce. Consequently, a law that applies in divorce does not apply to kesef kiddushin. The second answer is that this issue of the shtar being attached to the ground does not apply to money. A shtar must be handed to her, whereas money need not need to be handed to her directly. For example, kiddushin can work even if she instructs him to give the money to someone else (even if he is not her shaliach).

The Yalkut Biurim (Kiddushin 2a) explains that the above two reasons are the basis for the Beit Shmuel's doubt. According to the first answer, since kesef is not relevant to gittin, laws that apply to gittin do not apply to kesef kiddushin. Consequently, there would be no issue with placing the kesef kiddushin on the floor for her retrieve. According to the second answer however, the issue with a get being attached to the ground is not applicable to kesef kiddushin. This however does not preclude other laws that apply to get from applying to kesef kiddushin, and kesef kiddushin placed on the ground could not be used to affect kiddushin. Consequently, despite being definite that kesef kiddushin attached to the ground works, since each of the reasons could lead to a different conclusion regarding kesef kiddushin placed on the ground, he leaves the ruling as a case of doubt.

1 The term is used loosely here to include also objects that have monetary value.


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