SHIUR #18: KIDDUSHIN LE-ACHAR LAMED YOM

                    by Rav Shlomo Brin

                Translated by Zev Jacobson

 The mishna states: "If one is mekadesh a woman so that  the kiddushin should take effect only after thirty days [le- achar lamed yom] and, in the interim, she accepts kiddushin  from another man, she is married to the second." There are two possible explanations for this din:   1. Theoretically, one could have claimed that the kiddushin of  the first had no effect whatsoever ,and it as if they never  took place.  Therefore, the woman is free to marry whoever she  pleases. 2. The original kiddushin are valid and, had they run their  course uninterrupted, they would have taken effect after  thirty days.  However, since in the interim the woman is not  considered married she can accept kiddushin from another man.

Rav and Shmuel [59a] agree that kiddushin le-achar lamed  do take effect after the prescribed time period has passed,  even if the kesef kiddushin is no longer in existence at this  time. It is clear, therefore, that the first possibility is  rejected, and kiddushin le-achar lamed yom are valid unless  interrupted and nullified by a subsequent kiddushin within the  thirty day period.

The Yerushalmi (3:1) goes a step further: In the case of  the mishna, if the second man died or divorced the woman   before the thirty day period had passed, the kiddushin of the  first still take effect. In other words, even if a second  kiddushin interrupted the first temporarily, since she is no  longer married to the second man on the thirtieth day, the  first kiddushin take effect.

According to the above, it is possible to distinguish  between the physical act of being mekadesh the woman [ma'aseh  ha-kiddushin] and its consequences [the chalut].  In general  the relationship between  ma'aseh and chalut is causal. The  ma'aseh is the cause and the chalut is the effect. Accordingly,  we must attempt to explain how in our mishna the chalut can be  separated from the ma'aseh. (We are dealing with this problem  from the limited perspective of kiddushin. For a broader  picture, see Tosafot, Ketubot 82a s.v. Ha, Tosafot Yevamot 93a  s.v. kenuya, Bekhorot 49.)

The Rishonim argue as to the extent a split between the  ma'aseh and the chalut kiddushin actually exists.

Rashba and Ramban:

According to the Rashba, a distinction must be made  between the physical transfer of the money [ma'aseh kiddushin]  and the money with which the woman is mekudeshet [kesef  kiddushin].  If the woman goes back on the kiddushin, she has  to return the money to the man; therefore, by agreeing to the  marriage, she benefits by not having to pay him back.  Thus,  she actually receives hana'a at the time the kiddushin take  effect, and this hana'a serves as the kesef ha-kiddushin.  Even  though the ma'aseh ha-kiddushin takes place earlier, she is not  mekudeshet with the money transferred then, but rather with the  hana'a received le-achar lamed. Therefore, according to the  Rashba, we can view the hana'a as the cause which effects the  kiddushin.

Similarly, the Ramban explains that the woman actually  receives the money on loan and it only becomes hers when the  kiddushin take effect.  This applies even if the money is no  longer in her possession at the time.  Kiddushin le-achar  lamed differ from marrying a woman with an already existing  loan, since in the former, the money is given be-torat  kiddushin (see shiurim # 9 and # 13.)  This explanation is  similar to the Rashba: the kesef kiddushin is received at the  time of the chalut. Whereas according to the Rashba the kesef  kiddushin is the hana'a, the Ramban views the loan itself as  the kesef kiddushin.

Ran and Ritva:

The Ran, in his commentary on the Rif, makes it clear  that the woman is mekudeshet with the money she receives at  the time of the kiddushin and there is no split between the  ma'aseh kiddushin and the kesef kiddushin.  This is precisely  what the mishna is teaching us: It is possible for the ma'aseh  to take place now even though the kiddushin will only take  effect le-achar lamed.  The Ran rejects the possibility that  the woman receives the kesef kiddushin at the time of the  chalut as the gemara states that kiddushin take effect even if  the money is no longer in existence at this time.

Also according to the Ritva, the ma'aseh kiddushin is  fully completed when the money is physically transferred as  the man expresses his intent to betroth the woman with the  money he gives her now.  However, in distinction to the Ran,  the Ritva explains that the women is mekudeshet with the  hana'a she receives from being able to spend the money as she  pleases and not with the actual coins themselves.  This is  despite the fact that she will have to return the money should  she renege on the kiddushin at a later stage.

To gain a greater appreciation of this opinion, let us  examine another source.

Kiddushin 60b: If a man divorces his wife le-achar lamed  and the 'get' (divorce document) is destroyed before the  allotted time passes, the divorce does not take effect.  The  same is true if one was mekadesh a woman le-achar lamed using  a shtar, or if one transferred ownership of a field le-achar  lamed using a shtar.  The shtar must be in existence at the  time of the chalut for the kinyan to take effect.

This is understandable according to the Ramban and the  Rashba who hold that the ma'aseh cannot be separated from the  chalut and, therefore, the initial transfer of the shtar   cannot help to effect the gerushin le-achar lamed, if by that  time the shtar has been lost or destroyed.  However, this  gemara seems to contradict the view of the Ritva and the Ran  that it is possible to do the ma'aseh now even though the  chalut only takes place le-achar lamed.  One would have  expected that the gerushin would take effect even though the  get is no longer in existence.

In order to solve this problem, we must modify our  understanding of the Ritva and the Ran.  Even these two  Rishonim agree that the chalut must be connected in some way  to the ma'aseh.  There can be no effect without a cause   linked to it in some way. When the shtar is destroyed, this  link is lost and the kinyan cannot take effect.  It is for  this reason, too, that there can be no delayed effect when  using  kinyan meshikha and kinyan chalipin, since the ma'aseh  is momentary in nature, there is no cause that can effect the  chalut thirty days later.  However, kinyan kesef has a  different status.  As mentioned previously, if the woman  decides to renege on the kiddushin she is obligated to return  the money to the man.  As a result, there is a remnant of the  kinyan kesef at the time of the chalut, and this is the  chiddush of Rav and Shmuel.

Tosafot (Yevamot 92b) express this viewpoint as follows:  "Even though the money is no longer in existence, it is  considered to be in the possession of the seller since, if the  kinyan does not take place, he is obligated to return it and  it is considered to be in existence with regards to  kiddushin."  The Rashba (63a) and Tosafot (Ketubot 84a) use  the same expression to describe the status of the kesef on the  thirtieth day.

Therefore, kinyan le-achar lamed, according to all  opinions, will only take effect if the kinyan is done with  kesef.  There is no distinction between kiddushei kesef and  other kinyanim that are effected by kesef [such as the  acquisition of property, for example].  It must be stressed,  however, that a fundamental difference still exists between  the opinion of the Ramban/Rashba and that of the Ritva/Ran.   The former do not recognize the possibility of separating the  ma'aseh and the chalut whereas the latter hold that it is  possible to separate ma'aseh and chalut, as long as there is  some sort of connection between the two.

Gradual Development:

Aside from the two basic explanations cited above, there  is a third possibility that explains the din of le-achar lamed  in a different manner: Instead of seeing the ma'aseh as taking  place only initially (Ran), or only le-achar lamed (Rashba),  one can view it as a gradual process.  The ma'aseh kiddushin  begin initially, and becomes complete le-achar lamed.  This,  however, can only happen if there is some remnant of the  original ma'aseh.   Kinyan kissed fulfills this criterion as  does kinyan shtar when the shtar has not been destroyed.   Kinyan meshikha and kinyan chalipin, though, cannot take  effect le-achar lamed as once the act is completed there is no  continuation to which one can contribute the gradual process  of the ma'aseh.

According to this explanation, there needs to be a  continuous, uninterrupted link between the ma'aseh and the  chalut.  Therefore, if another man was mekadesh the woman  before lamed, this link would be broken and even if he  subsequently died or divorced the woman, the kiddushin of the  first would not take effect le-achar lamed.  This is in  opposition to the opinion of the Yerushalmi. (see Rashba)

Summary:

We suggested three approaches to understand kiddushin le- achar lamed:

1. We view the ma'aseh kiddushin as taking place at the point  of the chalut, on the thirtieth day (Rashba).

2. The ma'aseh takes place immediately, but can nevertheless  effect a delayed chalut (Ran).

3. The ma'aseh develops gradually.  It begins right away,  however is considered to be complete only on the thirtieth  day.

For further study:

How are the various descriptions of le-achar lamed relevant to  the argument between Resh Lakish and Rav Yochanan regarding  retraction before the thirtieth day (59a)?

 SOURCES FOR NEXT WEEK'S SHIUR: ------------------------------ 1. Kiddushin 59b "Mekudeshet le-sheni...cheshashah de-rabanan  hu." 2. Gittin 82b "Ba'i Rebbi Abba...ba'inan ve-yatz'a ve-hayeta". 3. Rashba Kiddushin 59b s.v. Meitiv, Tosafot Rid s.v. Ve-R.  Yochanan. 4. Rambam Hilkhot Ishut 7:12-13; 4:16.

How is it possible for a woman to be married to two men  simultaneously?  What are the two interpretations of R.  Yochanan mentioned by the Rashba?  What is the difficulty with the Rambam's ruling?