The Eddie and Bessie Sitt edition, an audio series of the Talmud Bavli. Masechet Kiddushin (Tractate Kiddushin) has been sponsored by our good friend, Mr. Haimie Danah, Hashem yishmerehu veyachayehu, in honor of his wife, Dinah bat Rivkah, that she have many years of shalom bayit (peace in the home), and hatzlachah (success), parnasah (livelihood), and all good things: health, happiness, nachat (joy and satisfaction) from the children, and all the berachot (blessings). Amen. Daf nun bet (Page fifty-two). Today's daf is being studied le'ilui nishmat (for the elevation of the soul) mor zekeni Yosef ben Sarah (my grandfather Yosef son of Sarah) and marat zekenati Yaffa bat Sarah (Yaffa daughter of Sarah), and le'ilui nishmat Avi Avraham ben Ester (my father Avraham son of Ester), veruach Hashem tenichem beGan Eden (May the spirit of Hashem place them in the Garden of Eden). Amen. Today's daf is being studied lirefu'ah shelemah (for a complete recovery) Sarah bat Rachel (Sarah daughter of Rachel), Sarah Ruchamah bat Rachel (Sarah Ruchamah daughter of Rachel), and Moshe ben Dinah (Moshe son of Dinah). El na refa na lahem (Please, Hashem, heal them, please), El na refa na lahem, El na refa na (Please, Hashem, heal, please), refu'at hanefesh urefu'at haguf (healing of soul and body), va'adathem kerovah lavo (and their appointed time is near). Yehi ratzon venomar amen (may it be the will; let us say amen).
We begin today's daf on nun alef amud bet (fifty-one, side two), five lines from the bottom, starting from the words ta shema (Come and hear). Now let's review the sugya that we're involved in. We are in a sugya of a machloket between Abaye and Rava on kiddushin she'en mesurin lebi'ah, a type of kiddushin where, after the kiddushin is made, you're still not allowed to make bi'ah (marital relations), for whatever reason. So the question is: Is such a kiddushin, which does not allow you to make bi'ah, considered kiddushin? This is a type of safek (doubt): you made kiddushin, but you can't make bi'ah. Abaye holds that kiddushin she'en mesurin lebi'ah havu kiddushin; it is kiddushin. Rava, however, holds that kiddushin she'en mesurin lebi'ah lo havu kiddushin; it is not kiddushin. Basically, what the Gemara did on the last amud was challenge Rava: You say that it's not kiddushin, but aren't there cases where, even though bi'ah is forbidden after the kiddushin, the kiddushin still is chal? The Gemara answered every challenge it brought against Rava.
Now the Gemara continues along that same derech (way). Ta shema: Shenayim shekidshu shte achayot (Two men betrothed two sisters). You have two fellows who are not related; they made kiddushin with two sisters. Zeh eno yode'a eizo kiddesh, vezeh eno yode'a eizo kiddesh (this one does not know which one he betrothed, and this one does not know which one he betrothed). They don't know which woman they gave kiddushin to. They know they got married to one of them, but they don't know which one they gave kiddushin to. Obviously, each man is forbidden to be with either woman, because either one might be married to somebody else—to the other man. This is the classical case of kiddushin she'en mesurin lebi'ah. They made kiddushin, but they are certainly not allowed to have bi'ah, because they might have bi'ah with somebody else's wife. The baraita says clearly: zeh noten shene gittin, vezeh noten shene gittin (this one gives two divorce documents, and this one gives two divorce documents). Both men have to give two gittin (divorce documents) to the respective women. What do you see? The kiddushin was chal; they are considered married. This is a question against Rava.
The Gemara says: hacha nami shehukru ulesof nit'arvu (they were identified and later became mixed up). No, the case was talking about a situation where there wasn't a safek initially. At first, they knew whom they had married: they had married the respective women, and at the time of the kiddushin, it was known. Therefore, at the time of the marriage, it was considered kiddushin shemesurin lebi'ah. Only later did they forget. It was hukru ulesof nit'arvu; only later did it get mixed up. Dayka nami dekatani (it is also precise from what it teaches): this makes sense because the baraita says ve'eno yode'a (and he does not know). It says that now they don't know which woman they married. It doesn't say en yadua (it is not known). En yadua sounds like they never knew; it was never known. But ve'eno yode'a means that now they don't know. Shema minah (infer from this). Therefore, we can answer that Mishnah, and it is not a question against Rava.
The Gemara asks: i hachi, mai lememra? (If so, what is it teaching us?) So what's the chiddush? It's a very simple case: two unrelated men got married to two women, and later they forgot which one they gave kiddushin to, so of course they need two gittin. What's the chiddush of the case? The Gemara gives a chiddush: sefa itzterikha leh, desefa hava (the latter part was needed, for the latter part was). That case is indeed the chiddush. Met (he died). Now let's say both these mekadeshim—both these men who gave the kiddushin—died, ve-lazeh ach ve-lazeh ach (and one has a brother, and the other has a brother). Zeh choletz lishteihen ve-zeh choletz lishteihen (this one performs chalitzah for both of them, and this one performs chalitzah for both of them). Let's stop there.
If you look in your books, you should have a chart of this case. It's not difficult, but the chart shows two sisters, Leah and Rachel, who initially married Reuven and Yosef. Reuven and Yosef did not know which women they had given kiddushin to; later on, they forgot, and then Reuven and Yosef died. Yosef had a brother, Binyamin, and Reuven had a brother, Shimon. The law is that both brothers have to make chalitzah to both sisters. Shimon makes chalitzah to Leah and Rachel because maybe his brother was married to one of them; therefore, he has to make chalitzah to break the zikah. Binyamin has to do the same, because maybe his brother Yosef was married to one of them.
Obviously, they cannot make yibbum (levirate marriage), because they don't know which woman is the one they have to make yibbum with. Therefore, he might be going with achot zekukato, the sister of his zekukah. You're not allowed to go with the sister of your zekukah. For example, if Shimon makes yibbum with Rachel, maybe he was really supposed to make yibbum with Leah, and therefore he is pogea be-achot zekukato (encounters the sister of his levirate-bound woman), which is assur. The same applies to Binyamin. Therefore, the only advice is to have them both make chalitzah to both women.
The case continues: le-zeh echad ve-le-zeh shenayim (one has one, and the other has two). It's the same case, but one of the men who made kiddushin has two brothers, and the other has only one. Again, we have a chart. The same people are involved: Rachel and Leah, the two sisters; Yosef and Reuven, who made the initial kiddushin and both died; Yosef, in this case, has two brothers, Asher and Binyamin; and Reuven has only one brother, Shimon. The Mishnah says that the one brother, Shimon, the brother of Reuven, makes chalitzah to both women, Rachel and Leah. Then, u-shenayim (and the two), the two brothers, Asher and Binyamin, echad choletz ve-echad meyabbem (one performs chalitzah and one performs yibbum). We'll explain how that logic works in a moment. Im kadmu ve-chansu (if they went ahead and married them first), if Asher and Binyamin both married the women without first performing chalitzah and yibbum, ein motzi'in otam mi-yadam (we do not take them from their hands).
The chiddush of the Mishnah is that in this last case, davka mechlatz ve-hadar yibbumei (specifically, he performs chalitzah and afterward yibbum): we allow the two brothers to perform chalitzah and then yibbum. Aval yibbumei ve-hadar mechlatz lo (but yibbum and afterward chalitzah, no): that is no good, de-ka-paga bi-yevamah la-shuk, because he might be taking a yevamah la-shuk, a woman who is supposed to make yibbum. You're not allowed to marry a woman who is supposed to make yibbum to somebody else. Maybe she was supposed to make yibbum to somebody else. Therefore, the first brother has to make chalitzah. If that was the brother who was supposed to make yibbum, then he has performed chalitzah. Now the second brother, mi-mah nafshecha, is okay. If that was the one who was supposed to make yibbum, chalitzah has already been performed, so there's no problem. Chalitzah was performed for the other man's brother, Shimon, Reuven's brother, and has now been performed by one of his brothers; therefore, vaddai shehi mutteret (permitted). But if he makes yibbum first, de-ka-paga bi-yevamah la-shuk, he will be over on an isur de'oraita (biblical prohibition).
I should clarify the case. Before the two brothers, Asher and Binyamin, do their process of chalitzah and yibbum, Reuven's brother, Shimon, has to make chalitzah to both women. That's what the Gemara is saying: the two brothers should not start their process before Shimon makes chalitzah to both. That's the point, because if Shimon doesn't make chalitzah to both, one of them could be his yevamah. When the other brother then makes yibbum, he might be taking somebody else's yevamah, and that's assur. You're not allowed to go with a woman who has fallen to yibbum to somebody else. So Shimon has to make chalitzah to both. If one of them was his, she's covered; he has performed chalitzah for both. Once Shimon performs chalitzah, the other two brothers begin their procedure. The first one performs chalitzah and then yibbum, in that order, and then everything is fine.
The point is that when we read the baraita, the language is davka machlatz va'hadar yabumei (specifically, he performs chalitzah and afterward yibbum). One brother must first perform chalitzah, and then the other brothers can make yibbum with one of the sisters. However, aval yabumei va'hadar machlatz (but yibbum and afterward chalitzah): one of the pairs cannot make yibbum first, because maybe she really belongs to the other man, the single brother, and therefore they would be taking a woman who is waiting for yibbum. That is the chiddush of the case.
Now let's read Rashi on the top line, the second line on Rashi, nun bet: davka katani deha'echad choletz lishteihen techilah (it specifically teaches that the one performs chalitzah for both of them first). That's right: first the single brother has to perform chalitzah for both. Vehadar (and afterward), yabumei achat mehashtayim achar chalitzat achiv (one of the two is taken in yibbum after his brother's chalitzah). Then the two brothers, one performs chalitzah and one performs yibbum. Aval yabumei achat mehashtayim techilah (but for one of them to make yibbum first), afillu le'achar chalitzat achiv (even after his brother performs chalitzah), is no good. She'ein kan achot zekukah (there is no sister of his levirate-bound woman here): at least he has taken care of the achot zekukah on his side. Lo mishteri (it is not permitted). Decheivan delo chalatz yachid lishteihen (since the single brother has not performed chalitzah for both), ika lemeichash bizo shemityabemet shema zo hi yevamto shel yachid, shel yechidi (there is concern that, with the one who is taken in yibbum, perhaps she is the yevamah of the single brother). Nimtza kones (it turns out he is marrying) a woman who is a yevamah la-shuk, someone else's yevamah. Kelomar lemi she'eino yevamah (that is, he takes a woman who is not his yevamah), venosei otah belo chalitzah (and marries her without chalitzah). Umeshum hakdamat chalitzat echad min hashtayim leyibum shel sheni lo itzterich lematnyah (and because of the need for one of the two to perform chalitzah before the second performs yibbum, it was not necessary to teach this in the Mishnah); deha defgi'at achot zekukah meireisha sham'inan (for we already learn from the beginning about encountering the sister of his levirate-bound woman).
That's fine. After the first guy, whom we'll call Shimon, performs chalitzah for both, one of the brothers performs chalitzah, which takes care of that side of the equation. If their brother was really married to her, chalitzah has been performed. The yibbum with the second woman is mi-mah nafshecha: if that's the one he is supposed to make yibbum with, then he has made yibbum. If not, the other brother has already performed chalitzah for the other woman. Therefore, there's no problem of achot chalutzato (the sister of the woman released by him), because it's forbidden only for one man to marry his sister's chalitzah; the other brother is mutar (permitted). So there's no problem in this scenario. That's the chiddush in this case, and Rava is again protected from the questions.
Ta shema, we bring another question from a baraita against Rava: detani Tabyomei. Tabyomei is the name of a tanna. We learned: lezeh chamishah vanim ulezeh chamishah vanot (one has five sons, and the other has five daughters). One man has five sons, and another man has five daughters. The man with the five sons gave money to the man with the five daughters and said, achat mibenotecha mekudeshet le'echad mibanai (one of your daughters is betrothed to one of my sons). So it says, kol achat ve'achat tzrichah chamishah gittin (each one needs five divorce documents). Since it's a safek—he didn't say which one—each of the girls has to get five gittin from the brothers. We don't know; maybe one of the brothers is married to her. Each girl needs a get from each man.
Now, met echad mehem (one of them died), if one of the five men died without children, there's a yibbum situation. Kol achat va'achat tzrichah arba'ah gittin (each one needs four divorce documents): all the girls now need four gittin from the remaining four brothers, vachalitzah me'echad mehem (and chalitzah from one of them). One of the brothers has to perform chalitzah to break the zikah, because for sure one of the brothers was married to one of these sisters. Therefore, they all need chalitzah, at least from one of them, to break the zikah.
What do you see here? Clearly, even with this kiddushin she'einam mesurim levi'ah, none of the brothers are allowed to have bi'ah with any of these women, because perhaps a particular woman is his brother's wife. She could be achot ishto, eshet achiv, or achot ishto—his wife's sister. Mi-mah nafshecha, he cannot have relations with any of these women. And still, what are you saying? They need a get. That's a question against Rava. Vechi teima hacha nami keshehayu makirin ulevasof nit'arvu (and perhaps here, too, they knew at first and later became mixed up)? Maybe they knew whom they gave kiddushin to, and only later forgot, so that at the time of kiddushin it was mesurin levi'ah. You can't say that in this case, because it says ha achat mibnotecha le'echad mibanai katani (it teaches, “one of your daughters to one of my sons”). It clearly says there was a safek from the beginning, and it was never ra'ui for bi'ah. So what do you see? A question against Rava. The Gemara says: tiyuvta deRava tiyuvta (the refutation of Rava is a refutation). This is indeed a knockout against Rava, and the Gemara refutes him.
Still, the Gemara concludes lehalachah ulema'aseh (in law and in practice) that, once we have knocked out Rava, vehilcheta kevatei de'Abaye beYa'al Kagam (the law follows Abaye in Ya'al Kagam). Normally, we have a rule: in a machloket between Abaye and Rava, halachah (law) keRava, except for six exceptions. The way to remember the six exceptions is the acronym shesh teivot, Ya'al Kagam. The yud stands for ye'ush shelo mida'at; the ayin stands for ed zomem demifre'a hu nifsal; the lamed stands for lechi ha'omed me'eilav; the kof is our case, kiddushin shelo nimseru levi'ah; the gimel stands for gilui da'at begirushin; and the mem stands for mumar ochel neveilot lehach'is. We don't have to go through all the cases now, but there are six cases where Abaye and Rava argue, and these are exceptions in which we follow halachah ke'Abaye. The one we need to know today is the kof, kiddushin shelo nimseru levi'ah. Abaye says hi mekudeshet; Rava says no. The halachah is ke'Abaye.
The Gemara continues with a quote from the Mishnah. Let's remember that Mishnah: ma'aseh bechamesh nashim (an incident involving five women). There was a group of five women, including two sisters. A man took a basket of te'enim and the basket actually belonged to the women. It was shevi'it fruit, shemitah fruit. He told them, harei kulchem mekudashot li bekhalkalah zo (behold, all of you are betrothed to me with this basket), and one of them received it on behalf of all of them. The Chachamim said that the sisters are not considered mekudashot (betrothed) in the group, but everybody else is mekudeshet.
Amar Rav: Shema minah mimatnitin arba (infer four things from our Mishnah). We can learn from our Mishnah, from that last case, four dinim (laws). Venakit Rav beyadei telata (Rav kept three in his hand): Rav knew that three of them were clear, and therefore he would state those three. He wasn't sure of the fourth, so he didn't state it. He says there are four things to learn, but he's sure of three. What are they? Number one: Shema minah, mekadesh befeirot shevi'it, mekudeshet (infer that a woman betrothed with seventh-year produce is betrothed). You see here that you can use peirot of shevi'it. Even though the Torah says that shevi'it fruit can be used only le'ochlah, for eating purposes, and not for another purpose, our Mishnah clearly shows that the fruit is considered his mamon, his property, enough to betroth a woman. Of course, lechat-chilah (ideally), it would be assur. You're only allowed to eat the fruit of shemitah; you can't use it for business and things like that. However, bedi'avad (after the fact), the woman will be mekudeshet.
Ushema minah: Kideshah begezel, einah mekudeshet (infer that if he betrothed her with stolen goods, she is not betrothed). If a person betroths a woman with stolen goods—let's say he stole something from somebody else—it's no good; there is no kiddushin. Ve'afillu begezel didah (and even if it was her own stolen property): you might say, when he gave it back and she accepted it, that shows she was mochel. No; she could be accepting it as repayment for the gezelah, and therefore she's not waiving her claim.
How do you learn from this Mishnah that if you betroth a woman with gezel, even her own gezel, she is not mekudeshet? Mimai? Midekatani shelahen haytah veshel shevi'it haytah (from the fact that it teaches that the fruit was theirs and was seventh-year produce). The fact that the case says the fruit was the women's and was shemitah fruit—ta'ama deshevi'it dehfkera hu (the reason is that shevi'it produce is ownerless). It's really not theirs. Therefore, that's why the kiddushin works. Ha dishar shene shavu'a lo (but otherwise, if it were from another year, no). If the fruit were from another year, she would not be mekudeshet. The only reason it's mekudeshet is that, even though it was theirs, it was shemitah fruit. Shemitah fruit is really not theirs now, because it's hefker (ownerless). That's why we say she is mekudeshet. Shema minah. What do we learn from there? That if a person betroths with gezel, she is not mekudeshet.
Ushema minah, ishah na'asit shaliach lachavertah (infer that a woman can become an agent for her friend), a shaliach to accept kiddushin for her friend, ve'afillu bimkom shena'asit lah tzarah (even in a situation where she becomes a co-wife to her). One of the five women is accepting kiddushin for herself and all the other four. You see that she can accept the kiddushin even though she will become mekudeshet to the man along with the other co-wives, even though they become tzarot. Therefore, you see that such a woman can be a valid shaliach.
Even though tzarot hate each other, as we learned in Masechet Yevamot (Tractate Yevamot), they are not believed to say met ba'alech (your husband has died). Even though we trust one witness, a tzarah is not believed to come along and say that the husband died in order to let the other woman get married, because she wants to trip her up. Maybe the husband is really alive, and she's lying because she wants the other woman to go and marry another man even though she's still married. Still, the shelichut (agency) is kesherah (valid).
Ve'idach mai? What's the fourth chiddush that you can learn from our Mishnah? That kiddushin she'ein mesurin levi'ah are not kiddushin. You clearly see here that the sisters are not mekudeshet out of the five. Why? He obviously cannot have relations with these sisters. Kiddushin with two sisters is forbidden. So you see that kiddushin that are ein mesurin levi'ah are obviously going to be asur. The Gemara asks: venachshevah (so why not count it?). How come Rav didn't count that fourth item? It's a chiddush as well.
The Gemara answers: mishum demesapka leh, i ke'Abaye i keRava (because he was uncertain about it: whether the case follows Abaye or Rava). He had a safek about how to understand the case. Do we follow Abaye or Rava? According to Abaye, kiddushin she'einan mesurin levi'ah is considered kiddushin. Therefore, the reason the sisters are not married is something else. We learned earlier the rule kol she'eino bzeh achar zeh eino bebat achat (what cannot take effect one after another cannot take effect simultaneously). Any type of kiddushin that cannot be done successively, one after the other—like marrying two sisters, because you cannot marry one sister and then marry another sister—cannot be done bebat achat, simultaneously, either. It's a different rule. Abaye really holds that kiddushin she'einan mesurin levi'ah havu kiddushin. In this case, it cannot be done bebat achat because it cannot be done successively.
Or do you explain the Mishnah like Rava? If you remember, on the last amud Rava understood the Mishnah as discussing a man who betrothed one of the two sisters. If he betrothed one of these sisters but didn't know which one, that's a classic case where the kiddushin is chal, but it is kiddushin she'einan mesurin levi'ah. That's why the Mishnah says the sisters are not mekudashot. Rav had a safek about how to explain the Mishnah: like Abaye or like Rava. If you explain it like Abaye, it has nothing to do with kiddushin she'einan mesurin levi'ah. The sisters are not mekudashot because he married them bebat achat, and we have a rule: kol she'eino bzeh achar zeh. If you cannot do the kiddushin successively, you cannot do it bebat achat. So it has nothing to do with kiddushin she'einan mesurin levi'ah. Or do you explain the Mishnah like Rava? No, Rava learned the case over there, the reason why the sisters are not mekudashot 'cause he married one of...
When Rebbi Zeira came from Eretz Yisrael to Bavel, amrah leha shema'ata (he said the teaching), the chiddush of Rav, kamei de-Rebbi Yochanan (in front of Rabbi Yochanan). The teaching was that a man who betroths with gezel has not betrothed her. A man who betroths with gezel has no kiddushin. When Rebbi Yochanan heard it, he said: amar lei, mi amar Rav hachi? (He said to him, “Did Rav really say this?”)
The Gemara asks: what do you mean? Vehu lo amar? Does Rebbi Yochanan not hold that way? What do you mean, he's surprised Rav said it? He also holds that way. Rebbi Yochanan said: gezal (if someone stole from his friend), velo nityashu hab'alim (and the owners have not given up hope), shneihem einam yecholim lehakdish (neither of them can consecrate it). The thief and the person who was stolen from cannot make the item hekdesh (consecrated property). Why? Zeh lefi she'eino shelo (this one, because it is not his): the thief cannot make it hekdesh because it doesn't belong to him. Vezeh lefi she'eino birshuto (and this one, because it is not in his domain): the person who was stolen from cannot consecrate it either, even though it belongs to him, because it's not in his possession, in his reshut. So what do you see? Rebbi Yochanan also agrees that, just as you cannot make a stolen item hekdesh, you obviously cannot make kiddushin with it either. So why is he surprised about Rav?
The Gemara explains: hachi ka'amar lei, mi amar Rav kevati? (This is what he said to him: “Did Rav say according to my view?”) I know that you can't make kiddushin with gezel, but I didn't know Rav holds like me. That's why it was a chiddush to Rebbi Yochanan. He was saying, “Does Rav hold like me, that gezel is really asur?”
Meitivei: the Gemara now asks a question against both shitot (positions), Rav and Rebbi Yochanan. Both opinions hold that if you betroth with gezel, it's no good. Meitivei: kiddeshah begezel, gezel (if he betrothed her with a stolen item), bechamas (by coercion), chamas being when you force a man to sell you something against his will—a type of thievery, because he really didn't want to sell it, but you forced him—uvegeneivah (or with theft), such as stealing something from a man at night while he's sleeping, o shechataf sela miyadah vekiddeshah (or he snatched a coin from her hand and betrothed her with it), mekudeshet. In all these cases, it is kiddushin. What do you see? It works.
The Gemara says: no, hatam, begezel didah (there, it is her own stolen property). This case is talking about where the stolen item was hers. The pshat is that when she accepts it, she accepts it for the sake of kiddushin, and she must be mochel; that's why she accepted it back. Therefore, you have no re'ayah (proof). Our Mishnah, Rav, and Rebbi Yochanan were talking about when you stole something from other people. That's a problem. But when you stole her item and gave it back to her, that's when you say it's okay, because she's mochel; that's why she accepted it.
The Gemara says it can't be so: ha midekatni seifa, o shechataf sela mishelah (the end teaches, “or he snatched a coin that was hers”). Since the last case is talking about where you stole her item, it follows that the beginning is talking about ordinary gezel. Only the last case is about her item. It must be that the initial cases are talking about even when you stole from somebody else, and still it says she will be mekudeshet.
The Gemara says no: peirusha ka mefaresh (it is explaining itself). The baraita says kiddeshah begezel bechamas uvegeneivah (if he betrothed her with a stolen item, by coercion, or by theft); what's the case? Kegon, keitzad, kegon shechataf sela miyadah vekiddeshah bo (for example, he snatched a coin from her hand and betrothed her with it). The whole baraita is talking about a case of gezel didah. The chiddush of the baraita is that since she accepted it—it's her item, he stole it from her and gave it back—by accepting it, it's as if she was mochel. Therefore, we have no question against Rav and Rabbi Yochanan. When they said gezel, they were talking about stealing from somebody else, while this baraita is talking about stealing from her.
The Gemara says it can't be: veha matnitin degezel didah (but our Mishnah is about her own stolen property). In the case of the five women, what happened? He stole from them and gave it back. The only reason we said she is mekudeshet is that it was peirot shevi'it. Peirot shevi'it is hefker. But if it wasn't peirot shevi'it, the Mishnah implies that even if he gave back their own item, it would be gezel. Rav and Rabbi Yochanan learn from there that gezel didah is considered gezel, and Rav says einah mekudeshet. It's only because it was shevi'it fruit that she's mekudeshet. If it wasn't shevi'it fruit, even her own gezel would be no good.
Lo kashya, ha deshadeich, ha delo shadeich (there is no difficulty: this case is where there was a prior match arrangement, and that case is where there wasn't). The Gemara answers that our Mishnah is talking about lo shadeich: the man never spoke to the women. They hadn't accepted that they would marry him. Therefore, when he takes their items and gives them back, they aren't mekudeshet, because we don't say she's mochel. She doesn't even know the man well. Now, all of a sudden, he steals an item and gives it back to her as kiddushin. Aderaba, she takes it back because she wants to retrieve her stolen item. The other case, which says she is mekudeshet, was talking about a situation where they had already been speaking and had gone out together; she had already agreed to marry him. Therefore, when he takes her item and gives it back, since there was already a shidduch (match arrangement), we say that when she received it, she must have received it betorat mechilah (as a waiver). Therefore, the kiddushin is indeed kiddushin.
So it depends. According to Rav, if you steal an item from somebody else, she is certainly not mekudeshet. If you steal it from her, it depends: if it was shadeich, if they were already going out and she had agreed to marry him, then you steal an item from her and give it back, and we assume that by accepting it, she's mochel; therefore, it is kiddushin. Mah she'ein ken (unlike that), if it was lo shadeich, you simply took an item from her and gave it back. Of course she accepted it, because she wants to retrieve her item, and therefore she is not mekudeshet.
Hahi iteta (that woman): the Gemara tells a story about a woman who dahava ka mashya kar'ah (was washing her legs), bemashikhla demaya (in a bucket of water). A man came, chataf zuzei mechavereih (snatched coins from his friend), threw them to her, and said, “Mekudeshet li,” “I want you to be mekudeshet to me with them.” She accepted them. The man came before Rava to ask whether she was indeed mekudash or not. Rava said: leit dechash leha deRabbi Shimon (there is no one concerned about Rabbi Shimon's view). What was Rabbi Shimon's view? De'amar setam gezeilah, ye'ush be'alim havei (he says that with an ordinary stolen item, the owners are assumed to have given up hope). When you steal something, you can assume the owner made ye'ush, gave up hope. According to Rabbi Shimon, she is mekudeshet, because you can assume the man who was robbed made ye'ush. Then the item becomes the woman's. We have a rule that ye'ush of the owner plus a shinui reshut (change of domain)—the item went from the person who was robbed to the woman—means that there is both the man's ye'ush and a change of domain, and therefore she acquires it. However, when they asked Rava, he said nobody here follows Rabbi Shimon's view. We do not assume the man made ye'ush. Therefore, the kiddushin is not kiddushin, because it's not his money; it's gezel. You don't even have to give a get; there is no kiddushin at all.
The Gemara gives another story: hahu arisa. An arisa is a sharecropper; the man works and gets a percentage of the profits, which he shares with the owner of the field. Dekaddish bemoza deshamkhei: he took a handful of onions, betzalim, which were part of his percentage. He didn't discuss it with the ba'al habayit, but took some of the share for himself and went to betroth a woman with it. He came before Rava to ask whether she was indeed mekudash. Rava said to him, “Man achlakh?” (“Who waived the claim to that portion for you?”) Since you haven't officially divided it yet, some of the betzalim you took without asking permission belong to the ba'al habayit. You can't just take them without asking permission; you have to divide them. The woman accepted them thinking they all belonged to you, but they don't; some belong to somebody else. Therefore, it's kiddushin based on a false assumption, and it is not kiddushin.
Vehanei milei bemoza (this applies when you took the actual onions). With the onions themselves, the ba'al habayit says they have to be divided evenly. But aval keisha (if, instead, you took a stalk of onions), a bundle of them, then he didn't take the onions individually; he took the stalks, the bundles. Matzi amar leih (he can say to him), ana shaklei kisha shekil at kisha (I took one bundle; you take one bundle). With those items, they're not makpid (particular about it). When you take individual onions, one is bigger and one is smaller, so they have to divide them separately. Mah she'ein ken (unlike that), when they're taking bundles, there is kisha kikisha (one bundle for another bundle). Every bundle is basically the same. Therefore, it's not a problem for him to take a bundle and make kiddushin with it. That's the difference between taking the actual onion bulbs and taking the stalks. He can take the stalks without asking; they're like his, because the owner is surely mochel, since everything is equal in that case. Therefore, the kiddushin is kiddushin.
Hahu sarsaya: that's a man who makes beer, a brewer. In the olden days, they used to make beer from tmarim, dates. He was making beer for the ba'al habayit. He didn't own the dates, but he was the brewer. Dekaddish bifruma deshichra: after the dates had been used to make beer, he took the used dates and gave them to a woman, saying, “Harei at mekudeshet li.” The dates weren't his. The owner of the beer found out what he had done and said, “Amai lo teitei mehai charifa?” (“Why didn't you give her the better ones?”) There were some other dates that hadn't been used as much to make beer, so they were still stronger. “You should have given her the better dates.” We don't know what he meant. Was he being sarcastic? Did he mean to waive his claim? We have to understand what the ba'al habayit meant. The brewer came before Rava to ask if the kiddushin was really kiddushin: was that like a mechilah, like the owner saying, “No problem,” or not?
Rava said: lo amru kelach etzel yafot ela le'inyan terumah bilvad (they said “You should have taken the better fruit” only with regard to terumah). The Gemara explains: detanya, we have a baraita: keitzad amru torem shelo mida'at terumato terumah? (How did they say that terumah given without the owner's knowledge is valid?) The question is how the law works when a worker takes terumah for the ba'al habayit without asking him. He didn't ask; he took terumah without asking. In what case is the terumah valid?
Harei sheyarad letoch sedeh chaveiro (if someone went down into his friend's field), velikat, vetaram shelo birshut (picked produce and gave terumah without permission). Im choshesh mishum gezel (if the ba'al habayit is concerned that this is theft), ein terumato terumah (his terumah is not valid). But if the ba'al habayit is not concerned, terumato terumah. Uminayin hayah yodei'a im choshesh mishum gezel im lav? (How would we know whether the ba'al habayit is concerned that it is theft?) Harei sheba ba'al habayit umatza'o (if the ba'al habayit came and found him), and said to him, “Kelach etzel yafot” (“You should have taken the better fruit”). Why did you take the inferior fruit? You should have taken the better fruit. What does he mean? Is he being sarcastic, saying, “Why did you take the best fruit? Who asked you to take anything?” Or is he saying, “No, really, I wish you had taken the better fruit”? How do you know what he means?
The Gemara says: im nimtze'u yafot meihem (if there is better fruit among them), then he means it legitimately. You should have taken the better fruit. Therefore, terumato terumah; retroactively, we say he was mochel, and there's no problem. Ve'im lav (but if not), if there is no better fruit, then he's being sarcastic. He means, “Why did you take the better fruit? Why did you take the best fruit? What are you doing?” So ein terumato terumah. Hayu haba'alim melaktim umosifim (if the owners were picking and adding to it), if the owners themselves were adding to the terumah that the shaliach or the other person had taken, bein kach uvein kach terumato terumah (either way, his terumah is valid). Here you see clearly whether there's better fruit or not; from the fact that the ba'al habayit is adding to the pile of terumah, you see that he agrees.
That's only by terumah, because in any case he has to give terumah. Fine, someone else gave it. Therefore, you can say that he doesn't mean it sarcastically if there's better fruit. Aval hacha (but here), mishum kisufa hu de'avad, ve'einah mekudeshet (he did it because of embarrassment, and she is not betrothed). He doesn't want to embarrass his friend who took some of the dates without asking permission. He says, “Why didn't you take the better ones?” but he doesn't really mean it. Even if there are better ones, he doesn't mean it, because he just doesn't want to embarrass the man. He's not obligated to give his dates for kiddushin. By terumah, the man is obligated to give terumah, so one way or another he'll have to give it. Therefore, if he says, “You should have taken the better ones,” and there were indeed better ones, you can say he means it, and then it's okay. But here, when he says, “You should have taken the better ones,” even if there were better dates, he's only trying not to embarrass the man. He wasn't happy. Who asked you to take my dates to give kiddushin? You can't argue, “I had to give them to you anyway.” I don't have to give you anything; it's not terumah. What's my obligation to give you dates so you can betroth a woman? He did it only to avoid embarrassing the man. Therefore, the cases are not equivalent; they're not comparable. Einah mekudeshet.
The next Mishnah discusses a person making kiddushin with korbanot. Ha-mekadesh be-chelko (one who betroths with his portion), taking his chelek from the korbanot, the basar of the korbanot, whether kodshei kodashim, most holy offerings, such as korban chatat (sin offering) and korban asham (guilt offering). Those types of korbanot are only allowed to be eaten by the kohanim, and they can only be eaten within the azarah. Or kodashim kalim, lesser holy offerings, such as korban shelamim (peace offering), korban todah (thanksgiving offering), bechor (firstborn offering), ma'aser (tithe), and korban pesach (Passover offering). In all these cases, einah mekudeshet, because it isn't considered the kohen's or the owner's. Even though he's allowed to eat it, he's eating it from shulchan gavoha, God's table. It's God's goods, and therefore he cannot be mekadesh with it. It's not considered his money, which is what you can use to betroth a woman.
The Mishnah continues: u-ve-ma'aser sheni (and with second tithe). Ma'aser sheni is the ma'aser that you have to give in the first, second, fourth, and fifth years of the shemitah cycle. Bein shogeg bein mezid (whether he did it by mistake or intentionally), there is no kiddushin, because again, ma'aser sheni is considered mamon gavoha, God's property. You cannot be mekadesh with it. Divrei Rabbi Meir. Rabbi Yehudah omer: be-shogeg lo kidesh, if he did it by mistake, he did not betroth her; be-mezid kidesh, if he did it on purpose, he betrothed her. We have to see what the difference is between shogeg and mezid: why is it no good by mistake, but good intentionally? We'll see. U-ve-hekdesh (and with consecrated property), let's say a man consecrated articles to the Beit Ha-Mikdash as hekdesh le-vedek ha-bayit, consecrated for Temple repairs. If he then uses those items to betroth a woman, be-mezid (intentionally), kidesh (he betrothed her); the kiddushin is chal. Be-shogeg lo kidesh (by mistake, he did not betroth her), divrei Rabbi Meir. Rabbi Yehudah omer: be-shogeg kidesh, be-mezid lo kidesh. We don't understand the sevarot (reasonings) yet. We have to wait for the Gemara. What's the difference between shogeg and mezid? It's a machloket. The Gemara will explain it. But let's go one step at a time.
Neima matnitin dela ke-Rabbi Yose Ha-Gelili? (Shall we say that our Mishnah is not according to Rabbi Yose Ha-Gelili?) Our Mishnah just said that if you make kiddushin with your chelek of the korban, there's no kiddushin, whether it's kodshei kodashim or kodashim kalim. It must not follow Rabbi Yose Ha-Gelili. De-tanya (for it was taught): here we have a Torah law called shevu'at ha-pikadon, an oath concerning a deposit. What is the law of shevu'at ha-pikadon? Let's say a person has a claim against his friend: “I gave you something to watch. I want it back.” The other man says, “What are you talking about? I don't have it.” “You have to swear.” He swears, and then admits that the truth is, “I really have your item.” The man made an oath, and the Torah clearly says that if he's guilty and swore falsely, he has to pay back the item, ve-chamishito yosef alav (and he shall add a fifth to it). He has to pay a penalty of a fifth, and he also has to bring a korban asham to Ha-Kadosh Baruch Hu (the Holy One, blessed is He).
The pasuk (verse) says, u-ma'alah ma'al ba-Hashem (he has acted unfaithfully against Hashem). That means the man was mo'el; he stole—even from Hashem? What does that have to do with a pikadon, a deposit? What kind of deposit is it talking about when it says ma'al ba-Hashem, that you stole something from Hashem? What is this talking about? Le-rabot kodashim kalim (to include lesser holy offerings). Even if a person swore falsely against his friend who said, “You stole my korban shelamim,” and the man said, “What are you talking about? I didn't take your korban shelamim,” then swore, and it was found that he really took the kodashim kalim, he has to bring a korban, because shehen mamono (they are his property). Just as shevu'at ha-pikadon applies to ordinary items taken from a person because that's his mamon, so too shelamim is considered a person's mamon. That's why it's subject to the laws of shevu'at ha-pikadon. So what do you see according to Rabbi Yose Ha-Gelili? If it's considered a person's mamon, he could make kiddushin with it too! So our Mishnah obviously isn't following Rabbi Yose Ha-Gelili.
The Gemara answers: afilu teima Rabbi Yose Ha-Gelili (you can even say it's according to Rabbi Yose Ha-Gelili). Ki ka'amar Rabbi Yose Ha-Gelili (when Rabbi Yose Ha-Gelili said this), that was only while the animal was alive. It was designated for korban shelamim. Aval le'achar shechitah (but after the slaughter), even he agrees that kodashim kalim is considered mamon gavoha. Why? Ki ka zachu, mishulchan gavoah ka zachu (when they acquire it, they acquire it from the table of Heaven). After it has been slaughtered, the meat the person eats is considered to come from shulchan gavoha. Therefore, it's not your mamon, and you cannot eat it.
So the Gemara says it makes sense to explain the Mishnah that way, and the Mishnah could even follow Rabbi Yose. Our Mishnah is talking about portions, not an animal that is still alive. How do we know? Dayka nami: I'll prove it to you from the structure of the Mishnah. It says, hamikadesh bechelko, bein kadshei kodashim bein kodashim kalim lo kidesh. The fact that the Mishnah says chelko, his portion, is mashma (implies) that it's talking about the portion. It doesn't say kodashim kalim, which would mean the animal itself. Chelko means the parts that come from the animal. So only the portions are not his, because they're considered to belong to God, from God's table. Shema minah: specifically in that case, it's not considered his mamon, but the animal itself is considered a person's mamon.
Tanu rabanan (we have a baraita): le'achar petirato shel Rabbi Meir (after Rabbi Meir's passing), Rabbi Yehudah told his students, al yikanesu talmidei Rabbi Meir lechan (do not let Rabbi Meir's students enter here), mipnei shekanteranim hem (because they are argumentative), because their way is to be mekanter, to challenge and needle me in halachah, velo lilmod Torah hem ba'im, ela lekappecheini behalachot hem ba'im (they have not come to learn Torah, but to defeat me in matters of law). They're trying to cut my legs, so to speak, with their sharpness, to knock me down in halachah.
Dachak Sumchos venichnas (Sumchos pushed his way in). Sumchos, even though he was a student of Rabbi Meir, pushed his way into the beit midrash. He announced to the beit midrash: kach shana li Rabbi Meir (this is what Rabbi Meir taught me): hamikadesh bechelko, a person who takes the chelek of the korbanot, bein kadshei kodashim bein kodashim kalim, whether it's korban chatat or korban shelamim, whatever level of korban it is, lo kidesh. The kiddushin is not kiddushin. That's exactly our Mishnah!
Ka'as Rabbi Yehudah aleihem (Rabbi Yehudah became angry with them). He said, “Didn't I tell you already, al yikanesu mitalmidei Rabbi Meir lechan? Don't bring these students in, mipnei shekanteranim hem, velo lilmod Torah hem ba'im ela lekappecheini behalachot hen ba'ot. These people are coming over here just to knock me down. They're coming to be mezalzel (disrespect) me. Why did you let them into the midrash? What kind of halachah is he quoting here, that you can betroth a woman with kodashim, kodesh kodashim? What kind of halachah is that? Vechi ishah ba'azarah minayin? What kind of case is that? How could you even think you could betroth a woman with korban chatat? Can a woman go into the azarah? We know a woman is not allowed to walk into the azarah. So how would you ever betroth a woman with meat of a korban chatat? You can never take korban chatat out of the azarah. What is Sumchos talking about, saying you cannot betroth a woman with kodshei kodashim? Chazak uvaruch, of course you're not going to betroth a woman! Can a woman walk into the azarah? What are you even talking about? They're just trying to come in and knock me down with these halachot, these tricky halachot to trick us. Why did you let him in?”
Amar Rabbi Yosei (Rabbi Yosei said): “Yomeru” (if I don't respond), the people are going to say the following: “Meir shachav, Yehudah ka'as, veyosei shatak” (Meir passed away, Yehudah got angry, and Yosei kept quiet). We have to answer this question. Rabbi Yehudah is asking, “Can a woman be in the azarah?” So I have to explain exactly what Rabbi Meir meant. Divrei Torah mah tehei aleha? What will become of the words of Torah? I have to explain Rabbi Meir's case. We can't just let Rabbi Yehudah get angry without explaining what Rabbi Meir meant in the Mishnah. He says: vechi ein adam asui lekabel kiddushin debito ba'azarah, ve'ein ishah asuyah la'asot lah shaliach lekabel kiddusheha ba'azarah? (Can a person not receive kiddushin for his daughter in the azarah, or can a woman not appoint an agent to receive her kiddushin in the azarah?) What's the problem with asking, “Can a woman go into the azarah?” Maybe the girl is a ketanah (minor girl) and her father accepts the kiddushin for her. The father can walk into the azarah; that's not a problem. Or she is a na'arah (young woman), and the father can go into the azarah to accept it. Or she is a gedolah (adult woman) who appointed a shaliach to accept it for her. So what's the problem? You're asking how there's a case of a woman receiving kiddushin in the azarah? Her father went and accepted it on her behalf. What's the problem?
Ve'od (and furthermore), dachakah venichnesah mai? Vos iz? She made an issur. She pushed herself into the azarah and accepted the kiddushin. The case we want to know about is whether she's mekudeshet or not. You're right, she's not allowed to go into the azarah, but she pushed her way in. She made an issur, but the she'elah (question) is whether the kiddushin is still kiddushin. So Rabbi Yose felt that he had to answer. You could ask: even though Rabbi Yehudah knew these scenarios, like we just said in the name of Rabbi Yose, he was angry because he felt Sumchos was coming to be a mekanter, just to knock them down. So he knocked him out with a small dichui (rejection), even though he knew the answer. He was upset and wanted to throw Sumchos out of the beit midrash altogether, because he felt it wasn't leshem Shamayim (for the sake of Heaven) and that Sumchos was against him. Rabbi Yose said, “I have to at least say something. What, are they going to say that Rabbi Meir died and nobody could explain his words? I have to explain his words so they make sense.” So he explained them. In the end, hacha nami, it's a case where the woman herself doesn't go into the azarah, but her agent or father does. Or she goes in without permission.
Tanya: Rebbi Yehudah omer mekudeshet, Rebbi Yose omer einah mekudeshet (it was taught: Rabbi Yehudah says she is betrothed; Rabbi Yose says she is not betrothed). The Gemara brings a baraita that teaches a machloket tanna'im (dispute among Tannaitic sages). In a case where a man betroths with kodshei kodashim, Rabbi Yehudah indeed holds mekudeshet, and Rabbi Yose holds einah mekudeshet. What's the machloket? Rabbi Yochanan says sheneihem mikra echad darshu (they both learn it from the same pasuk): Ve-zeh yihyeh lecha mikodesh hakodashim min ha'esh. It says to Aharon and his children, “Ve-zeh yihyeh lecha mikodesh hakodashim”—the meat of the korban belongs to you.
Rabbi Yehudah holds lecha lechol tzorchecha: the meat belongs to you for all your needs. You can do whatever you want with it; you can even betroth a woman. The pasuk says ve-zeh lecha; it belongs to you. Rabbi Yose holds no: it belongs to you ka'esh, like the fire. Mah esh la'achilah (just as fire is for eating), meaning the fire of the mizbe'ach consumes the korban, af hu nami la'achilah (so too, it is for eating). The portion of the korban is for achilah (eating) purposes, and nothing else. Therefore, you cannot use it to betroth a woman. Both of them are learning from the same pasuk. One, Rabbi Yehudah, learns that it's mamash lecha (literally yours), and therefore you can make kiddushin. The other Rabbi says no: lecha is like esh, because the pasuk says esh. Just as the esh is only for eating—the fire consumes the korban—so too, the kohanim's meat can only be used for eating, not for making kiddushin. Baruch Hashem le'olam amen ve'amen.