Avodah Mailing List

Volume 05 : Number 078

Wednesday, July 5 2000

• Re: Ran
• Ran in Nedarim
• gut feelings and "hefkerut"

1. See Kid. 44a that Kiddushin is m'da'ata of the woman, Rashi explains
that is requires her ratzon to be chal. This really echoes the gemara on
9b regarding shtar eirusin. The need for ratzon is a far cry from a pure
concept of hefker - you don't need your chametz's ratzon to be mafkir it
on erev pesach. See R' Sh. Shkop on that Ran (don't know if he discusses
Kid. 5, but I'm pretty sure you can find his comments on the Ran).

2. The gemara in Kid. 7 is mefurash in the case of adam chashuv that the
woman does the amira as well as the nesina and kiddushei vaday is chal (see
Tos. on daf 5 as well). The Ran did not categorically deny amira/nesina
by the woman, as that would be againt an explicit gemara. The Ran said that
a woman does not need *da'as* makneh for the kiddushin to be chal. In the
case of adam chashuv where she does everything, it is still the man's da'as
which causes the chalos kiddushin.

3. Chazal were concerned that even a shifcha should not be hefker (4th
perek of Gittin), but that not hefker in the sense of da'as and kinyanin -
the supposed irony seems to be a result of confusing terminology.

Apologies if any of this has been said - it is hard to follow as it seems
half the inyan is on areivim (which I don't subscribe to) and half on avodah.

-CB

I don't understand RYGB's position on the question of a kallah saying "I
accept this ring according to the laws of Moshe and Israel" after the
chatan says "You are hereby betrothed to me with this ring..." and
places the ring on her finger".  That act of the chatan with the
cooperation of the kallah who extends her finger in the presence of
witnesses constitutes kiddushin.  How does her later words invalidate
anything?  Even if we assume that the Ran (Rabbenu Nachman Gerondi) in
T.B. Nedarim (30a) actually requires a woman to relinquish any rights of
a "seller" in order to allow the marriage "acquisition" to proceed.  How
does a simple statement of fact that the extending of one's finger
betokens acceptance of the ring interfere with the mechanism of rights
relinquishment?  It is a mere announcement of what has been done and
should have no legal implications.  Even the conclusion of the kallah's
statement, "according to the laws of Moshe and Israel" can be considered
equivalent to "according to customary procedure" - and not an halachic
type statement.

On the other hand, a declaration of the kallah under the chupah that she
is betrothed to her chatan after he gives her the ring without making
any declaration could have been seen as a problem according to the above
Ran.  For the Ran's position is based on a reading of the text, "If a
man takes a woman (in marriage)" which is taken to exclude the idea of a
woman allowing a man to take her.  By her making the betrothal
declaration instead of him, she would seem to be violating the above
biblical procedure.  Yet, if the context of the declaration is about
marriage, and it is clear that a marriage is to be effected, then his
giving the ring and her making the declaration constitutes a perfectly
valid kiddushin according to the Shulchan Aruch (Even Ha'ezer 27).  The
reason given by the GRA and the Aruch Hashulchan for this halacha is
that such a declaration is no worse than silence at the time of the
giving of the ring by the chatan, which is effective in the context of a
marriage discussion.  No one that I have seen has raised the issue of
the above Ran with regard to this ruling (even RYGB does not take issue
with it).  Then why raise the issue with regard to a simple announcement
on the part of the kallah?

Yitzchok Zlochower

There are some issues that have, to my surprise, been missed by most of  the
erudite participants on this topic. (After writing this, I see that RMB
addresses some of it.)

E. Krischer's statement of irony is somewhat misplaced.  The notion of
protecting bnos yisrael so that they not be hefker, is one of fact, i.e.
those takonos were promulgated and concerns aired (in gemara) were made
because bnos yisrael would become literally involved in prostitution or
fornication.  That is one use of the word hefker.

The irony does not exist. E.Krischer latched on  to the word hefker
cited as being used by the RaN.  However, as presented by RYGB, the RaN
requires that the woman make hereself halachikally hefker in order to
enable the keddushin to become efficacious (chal in yeshivishe reyd).
That is a different hefker, I think.

The situation where the two may dovetail--and which may prove me wrong--is
the case where (I'm fuzzy on the details) she is inflagrante etc. with one
guy and she extends her hand to accept kiddushin from another.

To RYGB, I pose the following queries:
Are we expected to concern ourselves with every opinion found in Rishonim if
a majority of of Rishonim disagree with RaN or at least do not specifically
agree with him?   (This is a general paskening question anyway.)

Do no other Rishonim or poskim reach a conclusion different than yours that
would validate Rabbi Berman's ceremony?

Does the nachas ru-ach le-nashim (Chagiga) carry any weight in reaching a
conclusion here?

********************


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