Kiddushin Daf Nun Bet, Part 2

 

Introduction

Today s sugya discusses one of the halakhot Rav derived from the mishnah betrothal by stolen goods.

 

כי סליק ר’ זירא אמרה להא שמעתא קמיה דר’ יוחנן

אמר ליה מי אמר רב הכי

 

When R. Zera went up [to Eretz Yisrael, from Babylonia], he recited this teaching [of Rav] before R. Yohanan. He said to him: Did Rav really say this!

 

R. Yohanan is surprised that Rav would have said that one cannot betroth with a stolen object.

 

והוא לא אמר והאמר ר’ יוחנן גזל ולא נתייאשו הבעלים שניהם אינם יכולים להקדיש זה לפי שאינו שלו וזה לפי שאינו ברשותו

הכי קא"ל מי אמר רב כוותי

 

But did he not say the same? Didn t R. Yohanan say: If one stole [an article] and the owner did not despair of recovery, both cannot consecrate it: the one [the thief], because it is not his; the other, because it is not [actually] in his possession!

This is what he said to him: Did Rav rule as I [did]?

 

R. Yohanan also holds that stolen property is not the possession of the thief, as long as the owner does not despair of recovery. The thief cannot consecrate it, and therefore he cannot use it for betrothal. So why would R. Yohanan have been surprised by Rav s ruling?

The answer is that he was not surprised by the ruling, he just didn t realize that Rav ruled in the same way he did.

 

מיתיבי קידשה בגזל בחמס ובגניבה או שחטף סלע מידה וקדשה מקודשת

התם בגזל דידה

 

They raised an objection: If one betroths a woman with an article of robbery, violence, or theft, or if he snatches a sela out of her hand and betroths her with it, she is betrothed?

There it refers to her own stolen goods.

 

A baraita states explicitly that a woman can be betrothed with stolen goods.

The Talmud resolves this by saying it refers to goods stolen from her. When she accepts the goods she forgives him for having stolen them.

 

הא מדקתני סיפא או שחטף סלע משלה מכלל דרישא בגזל דעלמא עסקינן

פירושי קא מפרש קידשה בגזל בחמס ובגניבה כיצד כגון שחטף סלע מידה וקדשה בו

 

But since the second clause teaches or if he snatches a sela out of her hand, it follows that the first clause refers to robbery in general [from others]?

It is an explanation. If one betroths a woman with robbery. How so? If he snatches an article out of her hand and betroths her with it.

 

The baraita is read so that the entire baraita refers to goods stolen from her. Only in this case is she betrothed.

 

והא מתניתין דגזל דידה וקאמר רב אינה מקודשת לא קשיא הא דשדיך הא דלא שדיך

 

But our Mishnah [deals with] her own robbery, yet Rav said: She is not betrothed?

There is no difficulty: in the one case, he had arranged marriage with her, but in this case he did not arrange marriage with her.

 

The problem is that the story in the mishnah was a case where he stole an object from her and tried to use it to betroth her. Nevertheless she is not betrothed. This was the source Rav used to prove his halakhah. So how can we say that she is betrothed if the stolen item was hers.

The resolution is that the mishnah refers to a case where the marriage had not been arranged. In such a case, we don t know if by accepting the article she is agreeing to marriage. She might just want her object back and this is the best way to do so. But if the marriage was already arranged, then we can assume that she wanted to get married. Only in such a case can we assume that by accepting it as kiddushin, she was forgiving him from having to pay her back.