We left off yesterday with a question: Tosfos says the term kiddushin applies to a woman because through the kinyan of kiddushin she becomes off-limits to all other suitors. Tosfos, however, says the term kiddushin cannot apply to an object, e.g. you can't say, "This talis is mekudeshes to me." Why not? Doesn't the talis become similarly off-limits to all others (there is now an issur gezel for them to take it) through the kinyan?
Those of you who are Telzers probably were thinking something like this: the act of kiddushin is the cause (sibah - the magic word behind half of R' Shimon Shkop's sefer) of two independent halachos: 1) a woman becoming one's wife; 2) the prohibition of her marrying anyone else. It is this second aspect which allows us to invoke the term "kiddushin," excluded from others. The same is not true with respect to other kinyanim. The issur for others to use an object is not an independent halacha, but is simply an extension of the definition of ownership. An easy proof that this distinction holds water can be brought from the question Achronim ask of why not apply to every case of safeik in dinei mamonos the rule of sfeika d'oraysa l'chumra - safeik gezel - and force the money to be turned over. Where do we get this idea of "hamotzi m'chaveiro alav ha'araya" from? R' Shimon Shkop explains that gezel is a function of faulty/false ownership. You can't claim someone is a gazlan or even a safeik gazlan unless you can first raise doubts about their ownership rights. Gezel is simply the absence of ownership, not an independent halacha. (For more on this idea, see previous post here.)
My son intuitively liked this idea, but I wanted a Brisker answer. Here's my two cents (the more I think about it the more I convince myself it's not that different than the first answer): the issur for others to be with a married woman is a function of the woman's status; it's an issur cheftza. The issur gezel on an object is an issur gavra on others -- the Torah wants you to not be a thief, not for objects not to be stolen. It's not kinyanim which "create" the issur gezel -- kinyanim merely create the metziyus, the practical context in which people can either ability to curb their desire to steal or to exercise power to take what belongs to others.
My son's rebbe had a different pshat in Tosfos that I don't understand. If I get a chance to ask him maybe I will update this.
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where is this R'Shimon?
ReplyDeleteThe Or Sameach (in explaining how aseh doche lo taaseh works) maintains that issurei arayos are issueri cheftza.
ReplyDeleteRe: gezel, I remember RTwersky suggesting years ago that there could be an issur cheftza component there too. One of his rayos was from the lashon hamishnah at the beginning of the 3rd perek of sukkah -- lulav hagazul -- that it was a din in the cheftza. There is also support for the notion that the din of hashta behemtan shel tzadikim only seems to apply to issurei cheftza (see tosfos daf 7 in gitin and in chulin) but the klal also applies to the issur of gezel (see medresh rabbah and rashi on the pasuk in chayei sarah vayefatach es hagemalim; see also Ramban who argues). Veyesh lehaarich.
Both explanations seem entirely too convoluted, and there is a simple explanation. Kiddushin and hekdesh create an absolute prohibition for others to use it--it can't be waived without terminating the status: by death or divorce in the case of kiddushin; by pidyon or completing the avodah in the case of hekdesh. The owner of a garment, in contrast, can lend or rent the garment to another without relinquishing ownership. This is why the Tosfos uses the phrase: "the term is inapplicable (lo shayech)" refering to objects. Objects are not subject to such an absolute prohibition by any kind of private ownership claim.
ReplyDeleteReferring to a woman as a "cheftza" by the way, seems insensitive at a minimum.
The R' Shimon is in Sha'ar 5, towards the beginning.
ReplyDeleteI don't see the diyuk from the term "lulav hagazul". R"Y Engel says the same hesber of the Midrash in Chayei Sarah (and he discussed the sugya of behemtam as well.)
>>>Referring to a woman as a "cheftza" by the way, seems insensitive at a minimum.
No more so than the application of kinyan as derived from a field to women.
I hear what you are saying, but bottom line: absent the decision to lend out an object, is it not "ne'eseres la'kol"?
The gemara, if I recall correctly, explicitly addresses the use of kinyan and points out that the parallel is not precise as it cannot be done without her will (or her father's if she is under the age of 12)
ReplyDeleteabsent the decision to lend out an object, is it not "ne'eseres la'kol"? Yes, but "absent the decision to lend out" is a big kicker. I think Tosfos's point is precisely that the root "kuf daled shin" denotes that the prohibition is inherent in the status, and cannot be lifted without terminating the status. Not a result of the status plus a decision not to lend or rent it out, as is the case of a garment.
Marriage by definition is an exclusive relationship between a man and a woman. Through marriage, a woman becomes exclusively her husband’s and everyone else is excluded. The only other are where this is found is hekdesh – when you’re makdesh something it goes to govo’ha to the exclusion of everyone else. The definition of marriage is a relationship exclusive of others.
ReplyDeleteAll other relationships of ownership, however, are not by definition intrinsically exclusive of others. You own your tallis, others can use it. Although it is your right and ability to exclude others from its use, their exclusion is not the definitive part of your ownership, but rather a resulting option of your ownership. You certainly have the power to exclude, but that falls under the category of Nedarim.
R' Amiel (talmid of R' Shimon) makes exactly the same chiluk as you do, Mr. Last of the Telzers, so you are in good Telzer company. With respect to kiddushin, the exclusion of others is intrinsic to the definition of marriage; in the case of kinyanim it is a "davar ha'mista'ef".
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ReplyDeleteThe difference in kinyan between a talks and woman is a tali's can have multiple kinyanim and shutfus. A woman can't. So made. Tos is saying the lashon kiddush is reserved for a mutually exclusive kinyan that can't share and be mshtatif.
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