Kiddushin - Daf 5
- The source for שטר for kiddushin, and that money cannot effect divorce
The Gemara discusses the source that a shtar can effect kiddushin. After a kal vachomer from money is rejected, it is learned from a hekesh: "ויצאה" "והיתה" – “she shall leave” “and she will become [married],” מקיש הויה ליציאה – it compares “being” (kiddushin) to “leaving” (divorce). מה יציאה בשטר אף הויה נמי בשטר – Just as “leaving” is achieved with a document, so too, “being” can be achieved with a document. The Gemara asks that the same hekesh should also teach that just as money can effect kiddushin, it should also effect divorce!? Abaye answers that it is illogical that money can both create and terminate marriage: סניגור יעשה קטיגור – can a defender become an accuser? Although a document can effect both, they have distinctly different texts, whereas regarding money (although different statements are made for each process), טיבעא מיהא חד הוא – the imprint of the coin is the same (i.e., the money itself is identical). Rava answers that the passuk says: "וכתב לה" – and he shall write for her [a get], teaching: בכתיבה מתגרשת ואינה מתגרשת בכסף – only with writing [a get] can she be divorced, but she cannot be divorced with money.
- חופה קונה מקל וחומר
Rav Huna says that chuppah can effect kiddushin, based on a kal vachomer from money: ומה כסף שאינו גומר קונה – money, which cannot complete a marriage as nisuin, yet can acquire for kiddushin, חופה שגומרת אינו דין שתקנה – chuppah, which can complete marriage as nisuin, certainly can acquire for kiddushin! The Gemara clarifies that chuppah cannot be derived from any single kiddushin method, and is derived from all three: הצד השוה שבהן שקונין בעלמא וקונין כאן – the common characteristic of all three of them is that they acquire elsewhere, and acquire here for kiddushin, so we may also include chuppah, which acquires elsewhere (for nisuin), that it can effect kiddushin. Although the other methods can effect a transaction against the will of one party (a document of divorce, relations of yibum, and money redeeming a Jewish maidservant), Rav Huna responds that there is no marital transaction which money can effect against someone’s will. Rava poses two challenges, and Abaye answers them: the Mishnah lists only three methods of kiddushin, because it only lists methods taught explicitly by the Torah. Although chuppah only “completes” marriage when preceded by kiddushin, the kal vachomer can be reformulated: מה כסף שאינו גומר אחר כסף - if money, which does not complete marriage, even after money effected kiddushin, קונה – yet it acquires for kiddushin, חופה שגומרת אחר כסף – then chuppah, which completes marriage after money, אינו דין שתקנה – certainly should acquire for kiddushin.
- נתן הוא ואמרה היא
It was taught in a Baraisa: כיצד בכסף – How is kiddushin accomplished with money? נתן לה כסף או שוה כסף – If he gave her money, or items worth money, ואמר לה הרי את מקודשת לי - and said to her, “You are hereby married to me,” or another declaration of kiddushin, she is married. אבל היא שנתנה - But if she gave him money, ואמרה היא הריני מקודשת לך – and she said, “I am hereby married to you,” or a similar declaration, it is ineffective. Rav Pappa asks that there are contradictory implications about a middle case: The first case, which taught that kiddushin is valid where he both gave money and said the declaration, implies that נתן הוא ואמרה היא – where he gave her money, and she said the kiddushin declaration, it would be invalid. But the second case implies that it is only invalid if she both gave money and said the declaration. The Gemara answers that the Baraisa means that if she merely said the declaration, נעשה כמי שנתנה היא ואמרה היא – it is like a case where she gave and said and is invalid. Alternatively, the halachah of this middle case is unknown, and we are concerned, Rabbinically speaking, for the kiddushin.
