SHIUR #9: KIDDUSHIN BY MEANS OF A LOAN [TO THE WOMAN]

SHIUR #9: KIDDUSHIN BY MEANS OF A LOAN [TO THE WOMAN] 6A Based on Shiurim by Rav Baruch Gigi

When speaking about marriage by means of a "loan," there are three different possibilities that must be considered: a) the money that has already been lent, b) the loan itself, as abstract property or c) monetary benefit derived through cancellation of the debt.

I. Using the Money Lent

We will try to explain why kiddushin with a loan is or is not valid, but first we must understand the limits the gemara places on the discussion, based on some basics from the laws of loans.

In Kiddushin 47a we find a disagreement among the Tannaim regarding one who effects kiddushin with a loan. According to he who says that "a loan is given to be spent, " the woman is not married, whereas for he who believes that it is not given to be spent, she is.

A Loan is Not Given to be Spent

There is a disagreement among the Rishonim how to understand this opinion that "a loan is not given to be spent" (according to which, kiddushin with a loan would be valid):

Tosafot Ri Ha-zaken explains: The phrase "a loan is not given to be spent" means that the lender has the right to renege as long as the borrower has not yet spent the money. However, once the money has been spent, there is no practical difference between this opinion and the one maintaining that it is 'given to be spent.' Hence, the disagreement in the gemara whether kiddushin with a loan is valid, pertains only to the interim case in which the money has not yet been spent by the borrower. [As explained earlier, it is possible to understand why, in such a case, kiddushin with a loan would be valid. The gemara says that as long as the money has not been spent, a loan is considered the property of the lender, insofar as he can demand its return, and therefore the groom still owns the money and can be said to be now giving it to her.] If the money has already been spent, it is clear that the kiddushin are not valid.

Rashi explains: "Not given to be spent" means that the borrower is required to invest the borrowed money only in a transaction from which he can redeem it upon demand by the lender. Thus, the woman would be married even if the groom marries her with the loan after the money has been spent (ha- ma'ot einam be'ein). This can be explained in one of two ways: a) this opinion sees a loan as a type of "deposit," and even after the borrower spends the money to purchase an object, we see that acquired object as an exchange of, or a replacement for, the borrowed money (chalipei ma'ot ha- halva'a), for it can be translated at any time into cash; or b) we do not view the purchased object as an exchange for the money, but it does have a lien (shi'abud) on it, a strong pledge similar to an explicitly-declared mortgage (apotiki meforash.) With such an item one can effect kiddushin, as opposed to a regular loan, for in this case the "debt" is tangible and has already come into existence (ba la-olam), but this requires further clarification. (See also our further discussion regarding the flaw in this type of kiddushin, according to the one who says a loan is given to be spent.)

Summary

From all this we see that in the case of one who does kiddushin with a loan, according to he who says that a loan is not given to be spent, the Ri Ha-zaken believes that she is married when the money is unspent, while for Rashi she is married even if it was spent. From the continuation of the sugya it is clear that according to the opinion that a loan is given to be spent, the woman is not married even when the money remains unspent.

A Loan is Given to be Spent

Since we accept as halakha the opinion that a loan is given to be spent, we must attempt to understand why the woman is not married even when the money is still in its original state, i.e., unspent. There are two ways to explain this:

1. When the money is lent, the borrower legally acquires the money immediately, and it is DIFFERENT MONEY which he is then obligated to repay the lender. Hence, it is as if the would- be bridegroom were attempting to do kiddushin with something which is no longer his. So writes the Ritva, "Since his intention was directed toward the money [that he already gave her], he is doing the kiddushin with something which is not his own, for a loan is given to be spent."

2. According to Rashi, apparently an alternate approach must be suggested. We can infer from his comments on Bava Metzia 4a in the sugya of "hailach" ("here is for you") that he holds even according to the opinion that a loan is given to be spent, the borrower does not acquire the money immediately but only at the time that he spends it (this is not the place to go into a lengthy proof). We can not say, then, that the money is immediately no longer the lender's. Therefore, we must say according to Rashi, that although the borrower has not yet acquired full ownership of the money, he does have the right to spend it and the lender cannot prevent him from doing so. From the legal perspective of ownership, the money remains the lender's, and therefore the woman cannot become married with it, for we require another condition in order to effect kiddushin - one must GIVE something at the time of kiddushin. We learn this from Avraham's acquisition of the field of Efron, where the Torah states that he gave the money for the field to Efron. We learn from there that it is not enough for the groom to have already given the money for kiddushin; rather, A NEW ACT OF GIVING MUST TAKE PLACE AT THE TIME OF THE KIDDUSHIN. Since, in our case, this money is already in her possession and she already has the right to spend it as she wishes, there is no such new act.

II. Using the Loan Itself

We must now examine a further question. Granted that the woman is not married by use of the original money of the loan, why is she not married by means of the debt that she owes to him? Can a debt be considered property in an abstract sense? If so, can transfer of such property effect kiddushin? (This question applies even when the money has already been spent.) There are various approaches to this issue.

1) The Ramban maintains that a debt cannot be considered abstract property. The Ramban addresses this issue in Bava Kama (Milchamot 18a in the pages of the Rif), "... and they further said that when one does kiddushin with a loan, she is not married, (and similarly for business transactions) so we see that it is considered as something which lacks existence." Since this money does not exist, there is nothing with which to effect the acquisition.

2) If a debt is indeed viewed as money, the matter might rest upon the definition of "money": If "money" is anything with worth or monetary value, then apparently one could say that a debt is money. But if "money" must be specifically an OBJECT of money (cf. shiur 3 on Shveh Kesef, goods of equivalent value being considered as money), then it is unlikely that a debt, which is an abstract concept and not an actual object, can be considered money.

(In like fashion, one can explain the above-mentioned opinion of Rashi, that for he who believes that a loan is not given to be spent, kiddushin done with a loan is valid. Since the debt is no longer abstract, but rather connected to the specific object bought with the money of the loan, perhaps it is possible to see the loan as money.)

The Ramban, in the sugya (8a) relating to collateral (mashkon), compares the discussion there with the one in our sugya, and writes, "...for it is to her as a loan, which is intangible." And further on, when he compares one who does kiddushin via a loan, to one who does kiddushin via a loan owed by a third party, in which case she is married (see the sugya in the gemara 47b-48a), he writes, "In any case, it is only with a loan owed by a third party [that she can be married], for then he is transferring the lien from himself to the woman, but in the case of his own lien [i.e. the debt that he holds over her] ...she is not married with it, similar to collateral, for here [in the case of the collateral], nothing comes into her possession, while here [in the case of the loan], nothing leaves his possession, for a pledge is considered to be in the possession of the borrower, ...and since it is bound to him, the kiddushin are not kiddushin ."

There are two ways to explain his words:

1) Rav Y. Gustman: The flaw, according to the Ramban, is that there is no money in this transaction, which is demonstrated by the fact that nothing enters her possession (cf. Kuntresei Shiurim 74b s.v. ve-haRamban, in which he explains the words of the Ramban).

2) There are others who explain that the flaw lies in the lack of giving from the husband to the wife, despite the fact that the loan is considered money. (This can be inferred from the words of the Rashba in the sugya of collateral, and in 47b s.v. le-olam.)

III. The Rambam's Opinion

In Hilkhot Ishut (5:13), the Rambam rules that if one does kiddushin with a loan, the woman is not married, while in Hilkhot Mekhira (7:4) he rules that land can be purchased with a loan and movable objects with an oral agreement. This seemingly contradicts the thrust of our sugya (47a) which equates a commercial sale to kiddushin, specifically, that both do not take effect.

To resolve this discrepancy in the Rambam, one can explain as follows:

A debt is money, but only with regards to its value and worth, and not in the sense of being an "object" of money. One must distinguish between the money required for commercial acquisitions and the money necessary for kiddushin. In the acquisition of land, the money serves as repayment, and for this, value and therefore a debt suffices, while the money used in kiddushin is for acquisition (kinyan) and for this function, a debt is not considered money. (Even Ha-azel, et. al., and cf. Tosafot Ri Ha-zaken 47.)(For an alternate approach see the end of this shiur.)

IV. Using the Forgiving of the Debt

In Ketubot 74a, Rashi explains, "One who does kiddushin with a loan, i.e. cancels a loan which she owes to him, [is not married]... [because] at this moment [he] is giving her nothing at all." Tosafot, on the other hand, disagree, maintaining that when one does kiddushin by cancelling the woman's loan, she is married. According to them, there are no grounds for distinguishing this from the case of one who does kiddushin with the BENEFIT of the forgiving of a loan, where all agree that she is married. In order to define the basis of the dispute, one might say:

1) The disagreement of Rashi and Tosafot is on the literal level; namely, how to understand the words of the groom when he says, "You are married to me with the forgiving of a loan." Is he referring to her BENEFIT from this forgiving or the forgiving of the loan per se? The latter option resembles doing kiddushin with a debt, in which case she is not married (for any of the reasons discussed above).

2) Or, it might be possible to say that Tosafot do indeed claim that a woman can be married with the actual cancellation of the debt, but only because this cancellation necessarily entails benefit on her part. (This is different from doing kiddushin with the debt itself where she doesn't receive anything that is concrete.) Rashi, then, believes that even though she receives benefit, since he did not expressly state that the kiddushin is with this benefit, but rather with the forgiving of the loan, she is not married.

This argument is parallel to a controversy between Tosafot and Tosafot Rid in the sugya on 7b, regarding one who does kiddushin on behalf of his two sons, to another's two daughters. The focus of that debate lies in whether the criterion (for determining the validity of the transaction) is based on both the giver and the receiver, or the receiver alone (cf. Tosafot s.v. Shtei). According to Tosafot we look only at the receiver, and since in our case the receiver does indeed receive benefit from the cancellation of the debt, this is sufficient to render her married. Rashi, however, judges by the giver, and the groom did not explicitly marry her with the benefit derived from the cancellation of the loan. He does not provide her any benefit, but merely forgives the loan, from which she derives indirect benefit. Hence, she is not married.

V. Extending the Deadline

"With the benefit of a loan, she is married... where he extends her time (allotted for the repayment)." [6a]

For the phrase, "... he extends her time" the Rishonim offer various explanations:

1) Rashi explains that he is effecting the kiddushin with the money she would willingly give to him, or to another, in order to pacify him so that he would extend the deadline on her repayment of the loan.

2) Tosafot reject this and explain that she owed money to a third party, when along came the groom and convinced the lender to postpone the date of repayment. With this benefit, the kiddushin were effected.

3) Rabbeinu Channanel disagrees, pointing out that the benefit of a loan should be no more effective than the loan itself. Therefore, he envisions a scenario in which, upon the arrival of the deadline, he grants her more time by means of her actually handing over the borrowed sum and him returning it to her again, with the kiddushin resulting from the benefit she receives from the extension of the loan.

4) The Ra'avad (in his gloss to Hilkhot Ishut 5:15; also quoted in the Rashba) avers that the deadline did indeed arrive, but he does the kiddushin simply with the benefit of leaving the money in her possession. There is no need for him to take it from her, for since he has the power to forcibly collect his debt, it is considered as if he had.

5) The Rambam (ibid 5:15) explains that we are dealing with one who is lending her money now, and he does the kiddushin with the benefit she derives from the duration of the loan, i.e., that it will be in her possession for a specified number of days.

When analyzing this debate, I submit that two key issues must be addressed:

1) Is it sufficient for the woman to receive benefit, or do we require the groom to GIVE her benefit at the time of kiddushin (i.e., a possible flaw in the giving)?

2) Is any benefit considered as "money" for the purpose of kiddushin, or must there be a special type of benefit which may be defined as "money" (a possible flaw in the "money")?

The Analysis:

A. It appears that those Rishonim who require that he give her the money at the time of kiddushin, as per the opinion of the Rambam and the Rach (and in my humble opinion, there is no substantive difference between them, though this needs further examination,) perceive that if he does the kiddushin through the benefit of money which is already in her possession, the actual giving is lacking. Even if the money stands ready to be returned to him, and even though the benefit is currently being renewed, the fact remains that HE gave her nothing. In this case, then, there is a receiver but no giver.

As far as the Ra'avad goes, one of two things may be said:

a) He agrees, in principle, with this approach, but he views the groom as if he actually collected the money and then returned it to her, or

b) He fundamentally disagrees, and believes that since he has the power to take the money from her, it is considered a new benefit for her. The lack of giving on his part might be explained away by the above-mentioned opinion of Tosafot, that we consider only the receiver.

[The difference between the Rambam and the Rach might possibly rest upon this point: When she hands over the money not as repayment, but in order for him to return them and thus extend the loan, is this called "giving" on his part or not, but this requires further analysis.]

The other Rishonim, who say that it was neither specifically the time of repayment nor the time of the loan, maintain that any extension serves as benefit, and can thus be used for kiddushin.

B. One might suggest a slightly different explanation. Not every benefit has the status of "money" for kiddushin. Kiddushin requires that the benefit be in the form of a paid service which is provided to her at that moment. For example, he could, upon her request, jest and sport before her (see 63a). Alternatively, the benefit could be connected to something of monetary value which he gives her at that time, and is then considered "money." But when the money is already in her possession and her sole benefit is the ability to return it later instead of now, this is benefit which lacks the status of money.

The Rishonim who differ and allow such a marriage, believe, of course, that any benefit for which one would be prepared to pay, is categorized as money.

[There is an insightful point of disagreement between Rashi and Tosafot regarding the prohibition of interest, (though a discussion of the laws of interest mentioned in our sugya is beyond the scope of this shiur,) which will be clarified by a comparison with another debate between them. It appears that Tosafot believe that a husband has some form of monetary acquisition of his wife - see Tosafot Ha-rosh at the beginning of Ketubot regarding one whose "field was flooded," and others. But Rashi apparently understands kiddushin to be purely an issue of forbidden and permitted relations, and not a matter of monetary acquisition at all (though here is not the place for a lengthy discussion - see shiur 2 and 3 - ed.). With this in mind we can explain their respective opinions in our sugya. According to Tosafot, were he to do kiddushin with the coin which she would have given to him in order to extend her loan, it would be a clear-cut form of usury, since his assets are thereby multiplied, for she is considered his acquisition. In Rashi's opinion, however, his assets are not increased, in accordance with the sages of Sefarad (the Ramban, the Rashba, and the Ritva) in our sugya who declare, "... and if it is because she transfers possession of herself to him, behold he has in fact acquired for himself a master," or, "since her actual self is not acquired by him, it is not his interest, but is still prohibited rabbinically because it is a sly way to evade the law of usury."]

VI. Using A Gift on the Condition that It Be Returned

At the very end of our sugya, the law of one who does kiddushin with a gift which is meant to be returned appears. We will relate to it only briefly without delving into the heart of the matter, as it is reflected throughout Shas.

a) The initial version of Rava's ruling was that such a gift is not effective for sales or for kiddushin, but only for teruma. The reason for this is that such a gift lacks the status of "money" to effect a transfer, and only can serve this purpose for teruma because teruma might require simply an act of giving without transference of ownership, since immediately upon separation, teruma is considered to belong to the tribe of Priests, and all the owner can do is decide which particular priest will receive it.

However, the conclusion reached is that a gift which is meant to be returned certainly is considered money for the purposes of acquisitions, although poskim still dispute whether the acquisition of the gift is temporary o.k. or permanent in nature with an external stipulation requiring its return (cf Ketzot Ha-choshen 241:6).

b) The conclusion regarding kiddushin is that she is not married and the Rishonim debate whether this law is biblical or rabbinic in origin. Tosafot (s.v. Le-var me-isha) rule that it is rabbinically proscribed since, because chalipin (a symbolic exchange which effects transfer) are generally returned and as such resemble a gift which is meant to be returned, people will eventually believe that a woman can be married with chalipin. Accordingly, several Rishonim cite the version of the Geonim which reads, "... a rabbinic decree lest people say...." In order to explain our accepted edition which implies that the prohibition is biblical (and this is also implied in the comments of Rashi and the Rambam), the Ramban writes, "... For every chalipin with reference to the woman is considered as chalipin of less than the minimum value (shaveh peruta), since a gift which is meant to be returned is not effective for (the acquisition of) a wife, since the ultimate benefit is critical and thus she is not willing to transfer ownership of herself [these are the words of the sugya of chalipin, 3a]."

From this it appears that he believes that the money necessary for the acquisition of a wife must necessarily be money which involves practical benefit. We find a similar idea in the Rambam (5:24) who rules, "If the condition was fulfilled and then she returned it, she has in fact NOT BENEFITED and nothing entered her possession (cf. what we wrote above regarding his opinion vis-a-vis a loan)."

The transactions of matrimony are transactions in which benefit constitutes a central component. Therefore, even though both a gift which is meant to be returned and a loan are technically considered "money," we further require specifically money which entails actual benefit. As the gemara writes (5a) "These are not comparable because their benefit is greater," which has significance only if we say that the element of benefit is essential in the procedural transactions of matrimony.

This can be better understood if we consider kiddushin not as a monetary relationship, but basically as an interpersonal one. Therefore, the money is required not merely as payment, but as a symbol and generator of agreement by the woman to enter a matrimonial relationship.

Based on this one can offer another explanation for the discrepancy bound in the Rambam between marrying and buying with a loan. According to the Rambam, a debt is considered as money, but even so, the woman is not married, because for kiddushin we require money which brings benefit (hana'a), while in a debt the benefit has already passed, and no new benefit is now derived by her. As the Rambam himself puts it, "...and there is nothing currently in existence to provide benefit, for she has already spent the money in question and ITS BENEFIT HAS PASSED." (see Avnei Milu'im 22:16)

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BASIC MEKOROT FOR NEXT WEEK'S SHIUR ("Arev" in Kiddushin and Guaranteeship):

Kiddushin 6b (bottom) "Amar Rava"; Rashba ibid. s.v. Ten; Ritva 7a s.v. Arev;

Bava Batra 173a (bottom) mishna and gemara until the colon 173b (in particular "Amar Ameimar etc."); optional - Bava Metzia 73b (bottom) "Amar Rav Hama", Ritva ("ha-chadashim") ibid. s.v. Hai Man.