SHIUR # 25: Yeshna Li-sekhirut Mi-tchila Ve-ad Sof

                     by Rav Ezra Bick

 [The sugya of sekhirut is first discussed on Kiddushin 48a-b.   You should prepare that sugya before beginning the shiur.]

The mishna (63a) states that if one says, "you are  betrothed to me on the condition that I speak on your behalf  to the ruler, or that I serve as a worker for you," the  kiddushin is valid if he fulfills the stipulation.  Abbaye  explains that this is true only if he also gave her a peruta.   In other words, the action he performs is a condition, a tnai,  of the kiddushin, but is not itself the kesef, which effects  the kiddushin.  A peruta must be given independently of the  services he renders.  However, he must also perform that  service since he stipulated that kiddushin would not take  effect otherwise.

The gemara asks why the service rendered cannot serve as  kesef kiddushin, since it presumably is worth a peruta, and  supports this question with a braita which in fact appears to  validate such a case without requiring an additional peruta.   Abbaye answers that this question depends on a disagreement  concerning the nature of the obligation to pay wages to a  worker.  If "yeshna li-sekhirut mi-tchila ve-ad sof" (YLMVS) -  wages are incurred incrementally as the work is performed,  then labor cannot serve as kesef kiddushin; if "eina li- sekhirut ela ba-sof" (SOF) - wages are incurred only at the  conclusion (of the work) - then the labor can effect kiddushin  without any additional kesef.

Understanding the Argument - YLMVS or SOF

This distinction, and its connection to kiddushin, was  first stated in the second chapter of Kiddushin (48a).  The  case there reads as follows: "(She says) 'make me... (jewelry)  and I will be betrothed to you' - when he makes them, she is  betrothed.  This is the opinion of R. Meir.  The Chachamim say  that she is not betrothed until "money comes into her  possession."  The gemara raises several explanations of the  controversy.  The second one is: "Both sides maintain that  mekadesh be-milveh (betrothing with a loan) is not effective.   The argument here concerns yeshna li-sekhirut mi-tchila ve-ad  sof.  One side maintains that wages are incurred only at the  conclusion of the work, and one side maintains that wages are  incurred incrementally.  Rashi explains:

"YLMVS - every peruta (worth of work), when it is completed,  the owner is obligated to pay it to the worker as wages for  the performance of the work; hence, when he returns it to her,  it is retroactively like a loan.  Eina li-sekhirut ela ba-sof  - When he returns it to her, and then he is waiving it for the  sake of kiddushin; so there is no loan when he returns it to  her."

At first glance, the explanation appears simple.  The  difference between the two positions concerns the TIME of the  obligation to pay.  If the obligation to pay the worker or  provider of a service is incurred continuously in an  incremental fashion, i.e. YLMVS, whereas the kiddushin is to  be effected only at the conclusion of all the work, then in  the meantime she only has a monetary obligation - i.e. a loan.   At the end, when he wants to betroth her, he is in effect  canceling the monetary obligation, and this is mekadesh be- milveh, which, as we have previously (6b) seen, is invalid  (see shiur #9).  However, according to SOF, the total  obligation is incurred at the same moment that kiddushin is  meant to occur, so the woman has no prior monetary obligation  - she is immediately betrothed.

There are a number of problems with this explanation.   Some are technical - what if the service provided is not a  drawn-out process, but one single action which is immediately  beneficial to the woman?  The case of "speaking to the ruler"  might be understood this way.  In such a case, there is no  difference in TIME between the two positions.  Or suppose the  work consists of distinct units which are each individually  worth a peruta?  Then even according to YLMVS there should be  kiddushin based on the last unit, even if the previous units  had turned into loans.

There is, however, a more basic problem.  We saw in the  first mishna of this perek that one may effect delayed  kiddushin - "le-achar shloshim."  One can give a ring today  and state that the kiddushin should be effected thirty days  later.  In such a case we do not say that the ring has become  a loan, and thirty days later it is a case of mekadesh be- milveh.  The gemara (59a) asked this question, and explained  that here the ring has been given explicitly for the purpose  of kiddushin from the beginning, whereas, mekadesh be-milveh  refers to a case where the money was originally given under  the assumption that it would be paid back in kind, and only  later does the man suggest that instead of repayment she  should be betrothed.  We see that the crucial point is that  the "peruta" be given with the understanding that it will  engender kiddushin and not a monetary re-payment.  Hence, the  distinction between YLMVS and SOF is no longer clear.  In both  cases, he is working under the understanding that she will not  pay him money, but be married instead.  What difference does  it make if the kesef kiddushin is given in installments -  incrementally - or in one large sum - at the end of the work?   The Tosafot Rid asks this question, and cites the gemara (47a)  that says that if one says: Be betrothed with these (a number  of  fruit), even if she eats each of them immediately, before  they add up to a  peruta, she is betrothed.  Using a drawn-out  service, or using a number of small objects, would appear to  be equivalent cases.

I. The Ritva

The Ritva (48a) states that according to SOF, the  obligation is incurred when the object is returned to the  owner and not when the work is finished.  Were this not true,  he claims, it would be a case of milveh even according to SOF,  since the obligation is a loan from the time the work is  finished while kiddushin is only effected when he delivers the  object.  This problem is, in effect, the other side of our  question.  Assuming that YLMVS is a milveh, then SOF is also a  milveh.  His answer is to delay the onset of the obligation to  the time that the worker returns the object to the owner.   Essentially the same position is maintained by the Tosafot Rid  (48a).

The Ritva is assuming that kiddushin takes place only  when the object is handed over to the woman.  It is clear,  however, that the object per se is not the kesef kiddushin.   The object belongs to the woman and therefore cannot effect  kiddushin.  The next explanation offered in the gemara (48b)  is "uman koneh bi-shvach kli" - an artisan is the owner of the  value added to the improved utensil.  THIS latter explanation  assumes that the object, or rather that part of the object  which actually belongs to the worker, is the kesef kiddushin.   However, the answer we are discussing does not assume that  uman koneh bi-shvach kli - in other words, the worker has no  monetary interest in the object itself.  What role, then, does  the return of the object serve in effecting kiddushin?

The answer, it would seem, is that according to the  Ritva the argument of YLMVS and SOF is not only one of the  time of the obligation, but of the nature of the obligation  itself.  According to SOF, a worker is giving something - his  labor - to the one who ordered the work.  The actual work is  performed over a period of time, but it is received by the  owner upon delivery of the object.  Although the object is  totally the property of the owner, the labor, treated as an  object of value, belongs to the worker and is given to the  owner as an inherent aspect of the giving of the object.  The  obligation to pay a worker derives from your having received  something from him - one pays in exchange for the work.   Hence, the obligation is engendered only "ba-sof" - when the  object is delivered, which is also when the work is delivered.   The labor, considered an object of value, can also serve as  kesef kiddushin, if it is given for the purpose of kiddushin.   Any object of value can serve as kesef kiddushin, and in this  case the work of the laborer takes the place of a peruta.

However, the opinion of YLMVS differs on the nature of  work and its concomitant obligation.  If I work for you, I  have not given you an object.  Nothing is being transferred  between us.  Your obligation to pay derives from your  agreement to do so - it is a pure 'hitchayvut,' a self-imposed  obligation.  You are paying me in order to work, not in  exchange for my work.  If I agree to do something, you agree  to pay me.  Hence, the obligation to pay is continuous - every  bit of work performed is compensated, even though the owner  has not received anything from the worker.  On the other hand,  there is no object that can serve as kesef kiddushin here,  since the worker is not giving the owner anything.  It is true  that he is waiving the obligation to pay, which is surely  worth a great deal to the woman, but that is precisely milveh  - the release from payment rather than the transfer of a new  object of value.

In this way, our original questions are answered.   Defining an object as kesef kiddushin in order to perform a  delayed kiddushin only works if an object was initially  transferred.  According to YLMVS, there is no such object.   Only if an obligation to repay money takes effect, and then is  waived, is there any such object - but then it is defined as  milveh.  This is true even if all the work, worth more than a  peruta, is performed in a single act, so that there is no time  delay between the obligation and the kiddushin.  If there is  no object transferred between the man and the woman, there can  be no kiddushin.  On the other hand, according to SOF, when  the jewelry is delivered, the woman receives an object - the  work - which is worth a peruta and she can be betrothed in  return.

II. The Rambam

The Rambam (Hilkhot Ishut 5:19-20) divides the halakhot  of this sugya into two:

"If he said to her: 'You are betrothed to me in lieu of  payment for my speaking to the ruler on your behalf,' and he  spoke to the ruler and the ruler relented and did not sue her  - she is not betrothed unless he gave her a peruta of his own,  as the benefit (hana'a) which accrues to her from his speaking  is like a loan, and if one betrothes with a loan (mekadesh be- milveh) she is not betrothed (5,19). 'You are betrothed to me with the work that I will do for  you,' and he did it - she is not betrothed unless he gave her  a peruta of his own; for wages encrue to a worker  incrementally - as he does a bit of the work he acquires a  right to a bit of the wage; hence the entire wage is a loan by  her, and if one betroths with a loan she is not mekudeshet  (5:20)."

It is striking that the first section does not mention  the principle of YLMVS in order to explain why it is a loan.   Rather, the Rambam writes that the hana'a here is like a loan.   This Rambam should be studied in the context of the previous  six halakhot (ibid. 13-18), where the Rambam outlines his  position that kiddushin requires not only kesef, but also  hana'a.  Accordingly, the Rambam explains that mekadesh be- milveh is invalid because there is no hana'a at present (13 -  "there is no existent thing from which to benefit at this  time").  The reason for the ineffectiveness of speaking to the  ruler is that there is no hana'a at this time - the benefit to  the woman is that the ruler DID NOT SUE HER; i.e., she will  not have to pay out money.  Hence, the Rambam stipulates that  the ruler agreed not to sue her - in other words, the kesef  kiddushin is not the work he is doing (speaking to the ruler)  or the wages she owes him, but the attendant benefit from the  actions of the ruler, for which he is responsible.  Since that  benefit is a negative one - the prevention of an anticipated  loss - it does not meet the criterion of hana'a, similar to  milveh, where the hana'a - exemption from repaying the loan -  is negative as well.  The wages that the woman owes the man in  return for his service have nothing to do with this case, and  therefore YLMVS or SOF are irrelevant.  (The reason that the  service provided by the man is not a candidate for kesef  kiddushin is, I think, because it is not a commercial service;  there is benefit but it is not shaveh peruta in the sense that  it is not something that has commercial value.  But that is  another topic, which was discussed in the first perek.)

On the other hand, the benefit she derives from the  ruler, were it positive in nature, could serve as kesef  kiddushin.  Since it is received at once, is worth more than a  peruta, and apparently can be considered to arise from the  actions of the man, it is the equivalent of a peruta given by  the man to the woman.  There is no incremental problem here,  as a full peruta accrues to the woman at once.  The problem is  that this peruta carries no positive hana'a, and hence she is  not betrothed.

Only in the next section does the Rambam need the  principle of YLMVS.  Here the work he performs is the intended  kesef kiddushin.  This work carries a positive benefit for the  woman and hence does not suffer the disability of the previous  case.  Here the reason is that the wages are incremental.  The  Rambam emphasizes the fact that the increment is continuous -  for every small bit of work there is a small bit of wage; in  other words, there is never a peruta at one time.  It appears  to me that in the previous case, where the service of the man  consists of his intercession with the ruler, were that to have  been an acceptable example of kesef, it would not have been  disallowed because of YLMVS (which the Rambam has not yet  revealed).  The reason is that, as we pointed out in our  original questions, the benefit of a peruta here is in "one  blow," so that there is no problem of incrementality.  (New  word!!!!)  In other words, I am claiming that according to the  Rambam the problem with YLMVS is that the individual  increments are all less than a peruta.  The case of speaking  to the ruler is not a contradiction, since the Rambam explains  the case differently.

Why are the individual less-than-a-peruta increments not  integrated into one drawn-out act of giving (the question of  the Tosafot Rid)?  I would like to suggest an answer based on  the approach of the Tosafot Rid himself.

III. Tosafot Rid

In discussing the Ritva above, I referred to the Tosafot  Rid on the sugya in the second perek (48a).  The original  question posed in the beginning of the shiur was taken from  the Tosafot Rid in the third perek (63a).  I am unable to  fully explain his answer there.  He writes a great deal, and I  fail to understand the function of parts of what he writes.   Hence, what follows cannot claim to be the position of the  Tosafot Rid.  I shall focus solely on the last few lines of  his discussion, expanding on a distinction he makes in order  to explain the Rambam.

There (a case of mekadesh be-milveh), the groom did not  propose and did not inform her originally (before performing  the service) that he was doing so in order to betroth her;  hence it is a case of mekadesh be-milveh.  But here, however,  he proposed and said that he will betroth her with that wage  in the future; hence it is not a loan owed to her since he is  doing it with the intent to betroth her with that wage.

However, if we say YLMVS, since he does not betroth her  before the conclusion, it is a milveh, even though he informed  her that he wants to betroth her with that wage, as we see in  the previous perek (46a): "Be betrothed to me with this and  this and this, and she ate them consecutively, she is not  betrothed unless the last one is worth a peruta," as the  earlier ones are milveh.

Earlier the Rid had compared our case to one where he  said: Be betrothed with these (referring to several fruit),  where she is betrothed even though she has eaten them in turn  before they could add up to a peruta.  He is referring to a  distinction offered by Rava (47a).  "Rava said: (She is not  betrothed if she has eaten them consecutively) in a case where  he said, 'this and this and this;' but if he said 'with  these,' even if she has eaten them she is betrothed."   Linguistically, our case, where he says she should be  betrothed with his work, appears to be more similar to  'these,' where one phrase includes all the separate objects,  than to 'this and this and this,' where they are distinct.   Nonetheless, the Rid's conclusion is that the case of 'this  and this and this,' where the kiddushin is invalid, is the  proper comparison.

In both cases, all the dates are given in order to effect  kiddushin.  The difference would appear to be that in the case  of 'these,' there is only one act of giving, albeit a drawn- out one.  Where he has said 'this and this and this,' each act  of giving her a fruit constitutes a separate act.  Since  kiddushin is not effected after the first (since he wants her  to be betrothed with all of them), and the act is conceptually  complete, it is defined as an act of milveh.  However, where  he has said 'these,' the giving is one long act and as one act  it effects kiddushin.  Hence, all of it is defined as an act  of kiddushin, not milveh.

In the case of the giving of work, rather than an object,  the Rid seems to be arguing that ipso facto there are many  individual acts of giving.  Even if he has expressed himself  in a single word, the acts cannot be integrated into one.  The  Rambam hints at the reason - each bit of work obligates a bit  of wage.  This is precisely the position of YLMVS according to  the Rambam - the work is not seen as a single drawn-out  action, which would engender a single obligation at its  conclusion, but rather as a series of actions, each one of  which can engender a separate obligation.  Hence, since an  individual act of work is complete, and kiddushin is not  effected, it must be defined as a milveh.  On the other hand,  the opinion of SOF maintains that there is only one wage- obligation engendered by the work taken as a whole.  In other  words, there is only one act of work, drawn-out in time.   Since that single act effects kiddushin at its conclusion, it  may be defined as a single drawn out act of kiddushin and not  as milveh.

Accordingly, the argument of YLMVS and SOF is how to  understand the continuum of work - as a single act defined by  its purpose and effect, or as the equivalent of a series of  distinct mini-actions, each one of which must be defined  separately.

Why, according to YLMVS, does the use of a single  unifying description not achieve integration, as it does with  fruit, which are physically more distinct and less continuous  than the work?  The answer, I believe, is simple.  Physical  objects can be combined into one.  He could have given all of  them together in one bunch at a single time.  The parts of a  drawn-out action, however (if you define them as having parts,  as YLMVS does) cannot be unified.  By definition, a process  must be drawn-out.  This is precisely the argument.  SOF sees  a process as, by definition, a unity.  YLMVS sees it by  definition as a series which defies integration.  The separate  fruit are more distinct physically, but are not essentially  so.  Hence they are subject to the arbitrary definition of the  groom.

Summation: We have presented two approaches to the disagreement of  YLMVS and SOF:

1. They argue about the nature of hire.  One sees it as an  exchange of objects - work in return for moneys, while the  other views it as an obligation assumed on the condition that  the work be performed.  Aside from the question of when the  obligation is incurred, this results in a disagreement whether  the work can be kesef kiddushin.

2. They argue about the nature of a process - the services  rendered when taken as a whole.  One sees it as an integrated  unity (and hence a peruta-worth object), while the other views  it as a series of distinct objects, each of which is less than  a peruta.

 Sources and Questions for next week's shiur: Topic - "Himneih Rachmana Le-av:"

1) Mishna 64a "Kiddashti...," gemara until next mishna.   What are the two possible ways of understanding the  relationship between the first suggestion and that of Rav  Ashi?  See Ritva (Ketuvot 22a s.v. Minayin).

2) Ramban s.v. Ha, Ritva s.v. Nishbeit.   How does this issue reflect the disparate understandings of  Rav Ashi?

3) Mishna 63b, gemara "Iba'i... (64a) matni."   How might the machloket between Rav and Rav Asi relate to  the previous issue?

4) Rambam Hilkhot Sanhedrin 16:6.   How can this concept be used to suggest an alternative  explanation of Rav Asi?