Kiddushin, Daf Mem Daled, Part 1

 

Introduction

This week s daf continues to discuss whether or not ma amar, betrothal in the case of levirate marriage, can be done without the woman s consent. Normally, betrothal cannot be done without the consent of both parties. But ma amar is different.

 

מאי טעמיה דרבי גמר מביאה דיבמה מה ביאה דיבמה בעל כרחה אף הכא נמי בע"כ

 

What is Rabbi s reason? He deduces it from intercourse with a yevamah: just as intercourse with a yevamah [acquires her even] against her will, so here too [ma amar is valid even] against her will.

 

If a yavam has sex with his yevamah against her will, the act of yibbum is considered to be performed (I want to emphasize that this is not saying that he is allowed to rape her, just that if he does, the act has legal validity). According to Rabbi, the same is true when it comes to ma amar it is valid even if it is done against her will.

 

ורבנן סברי ילפינן מקידושין מה קידושין דמדעתה אף ה"נ דמדעתה

 

But the Rabbis hold: We learn from kiddushin: just as kiddushin must be done with her consent, so too [ma maar] must be done with her consent.

 

The other rabbis, who hold that ma amar cannot be performed against a woman s will, compare it with regular kiddushin, which also cannot be performed against a woman s will.

 

במאי קמיפלגי רבי סבר מילי דיבמה מיבמה הוה ליה למילף

ורבנן סברי קידושין מקידושין הוה ליה למילף

 

What are they arguing about? Rabbi holds: Matters related to a yevamah should be learned from a yevamah. But the Rabbis hold: Kiddushin should be learned from kiddushin.

 

Rabbi and the other rabbis disagree about what to compare ma amar with other laws related to the yevamah or other laws related to kiddushin.

 

ה"נ מסתברא כדקא מתרץ רבי יוחנן מדקתני סיפא מה שאין כן בקידושין אלא נימא תיהוי תיובתא דר"ל

 

Reason too supports R. Yohanan’s response, since the second clause teaches: Which is not so in the case of kiddushin.

Shall we then say that this refutes Resh Lakish?

 

R. Yohanan holds that when it comes to betrothal of a na arah, only her father can accept the betrothal. This is directly supported by the second clause of the baraita we learned last week when it comes to divorce, both the daughter and her father can accept the get. But when it comes to betrothal, only her father can.

Moreover, this baraita now seems to be a difficulty on Resh Lakish who said that a na arah can also accept her own betrothal.

 

אמר לך ר"ל הא מני רבי יהודה היא דאמר אין שתי ידים זוכות כאחת

 

Resh Lakish could say to you: That agrees with R. Judah, who ruled: Two hands cannot merit simultaneously.

 

Resh Lakish tries to ascribe that baraita to R. Judah, who holds that we can never have a case of two people having the right to accept the same document or legally binding object.

 

אי רבי יהודה מה שאין כן בקידושין מה שאין כן בגירושין מיבעי ליה

 

If [this clause is] R. Judah, [why state,] which is not so in the case of kiddushin ; let it teach, which is not so in the case of divorce?

 

R. Judah was referring to divorce, not kiddushin. So why does the baraita say which is not so in the case of kiddushin !

 

אין ה"נ איידי דתנא מאמר דדמי לקידושין תנא נמי מה שאין כן בקידושין

 

That indeed is so, but since he teaches [the laws of] ma amar, which are similar to kiddushin, he also states: which is not so in the case of kiddushin.

 

The Talmud admits that the baraita really should have stated which is not so in the case of divorce but since the topic was ma amar, kiddushin for a woman awaiting levirate marriage, the baraita taught which is not so in the case of kiddushin.

Thus the Talmud has defended Resh Lakish, who holds that according to the rabbis both the na arah and her father can accept her kiddushin.

 

ורבי יהודה מאי שנא מאמר הואיל וזקוקה ועומדת

השתא דאתית להכי ר’ יוחנן נמי לא תיקשי לך מעיקרא שאני מאמר הואיל וזקוקה ועומדת

 

Now, to R. Judah, why is ma amar different? Since she is already tied [to the yabam].

Now that you have come to this, you should also have no difficulty on R. Yohanan at the very outset ma amar is different, because is already tied.

 

R. Judah holds that the rules governing ma amar are different from divorce–she can accept the former but not the latter. This is because she is already tied to the yavam as soon as her husband dies.

The Talmud now notes that this logic can also be used to explain why R. Yohanan holds that either she or her father can accept ma amar but in ordinary betrothal only the father can. In the former case she is already tied to the yavam, and therefore the acceptance is less consequential.