Kiddushin, Daf Samekh Bet, Part 4

 

Introduction

Today s section continues to raise difficulties on R. Yohanan s position, whatever lies in his power to do, is not as though that act were lacking.

 

מתקיף לה ר’ אבא בר ממל אלא מעתה הנותן פרוטה לשפחתו ואמר הרי את מקודשת לי לאחר שאשתחרריך ה"נ דהוו קידושין

הכי השתא התם מעיקרא בהמה השתא דעת אחרת

 

R. Abba b. Mamal raised a difficulty: If so, if a man gives a perutah to his slave woman and says to her, Behold, you are betrothed to me after I free you, it should be [valid] kiddushin?

Is that so! There, she was originally like an animal, whereas now [after being set free] she is an independent mind.

 

If R. Yohanan is correct, that if a person can do something, it is not as if that act is lacking even if he had not yet performed the act, then a man should be able to marry his slave woman, saying to her that she ll be betrothed after he frees her. After all, he has the power to do so.

The Talmud rejects this (you probably won t like the answer). Slaves are not considered to have the ability to consent. They are like animals. But after she is freed she is considered to have an independent mind. She would need to consent as a free woman in order to be betrothed.

 

ואלא הא דאמר ר’ אושעיא הנותן פרוטה לאשתו ואמר לה הרי את מקודשת לי לאחר שאגרשיך אינה מקודשת ה"נ לר’ יוחנן דהוו קידושין

נהי דבידו לגרשה בידו לקדשה

 

Then when R. Oshaia said: If one gives his wife a perutah and says to her, Behold, you are betrothed to me after I divorce you she is not betrothed: according to R. Yohanan she should be betrothed?

Granted that it he has the power to divorce her, does he have the power to betroth her?

 

It would seem that R. Yohanan should disagree with R. Oshaia. However, the Talmud resolves that R. Yohanan agrees because while a man can divorce his wife against her will (according to Talmudic law), he cannot marry her against her will. Therefore, this is not something that he can do.

 

תפשוט דבעי רב אושעיא הנותן שתי פרוטות לאשה באחת אמר לה התקדשי לי היום ובאחת אמר לה התקדשי לי לאחר שאגרשיך תפשוט מינה דלא הוו קידושין

דלמא כי היכי דתפסי קידושין השתא תפסי נמי לאחר כן

 

Then solve what R. Oshaia asked: [What] if one gives two perutoth to a woman: With one he says to her, Be betrothed to me today and with the other he says to her, Be betrothed to me after I divorce you from this [then] deduce that it is not [valid] kiddushin!

[No.] Perhaps just as kiddushin can be effective now, it can be effective afterwards.

 

If R. Yohanan agrees with R. Oshaia in the earlier case, then maybe we would have our answer to this other case, where a man tries to betroth a woman now and again after he divorces her, all within one act of betrothal. R. Oshaia did not know the answer to this, but it would seem that since he can t marry her against her will after he divorces her, even if she consents now, the second kiddushin would not be valid.

The Talmud answers that maybe in this case her consent could carry over to the second kiddushin. Thus this question still remains.