Kiddushin 52aקידושין נ״ב א
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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52aנ״ב א

האחד חולץ לשתיהן והשנים אחד חולץ ואחד מיבם אם קדמו וכנסו אין מוציאין אותן מידם

the one brother performs ḥalitza with both of them, and of the two brothers, one performs ḥalitza with one of the sisters and one, if he so desires, performs levirate marriage with the other sister. If they married the widows before consulting the court, the court does not remove them from the marriage, and they are permitted to remain married.

דוקא מיחלץ והדר יבומי אבל יבומי והדר מיחלץ לא דקא פגע ביבמה לשוק

The Gemara explains the novelty of the latter clause: This is effective specifically if one of the two brothers first performs ḥalitza and afterward the other brother performs levirate marriage, but if one of the two brothers first performs levirate marriage and afterward the other brother performs ḥalitza, the levirate marriage would not take effect, as he is possibly encountering a yevama getting married to a member of the public. This is because it is possible that the woman he married was not his yevama but someone else’s yevama, and until the other man’s brother performs ḥalitza with her it is still prohibited for her to marry other men.

ת"ש דתני טביומי לזה חמשה בנים ולזה חמשה בנות ואמר אחת מבנותיך מקודשת לאחד מבני כל אחת ואחת צריכה חמשה גיטין מת אחד מהם כל אחת ואחת צריכה ארבעה גיטין וחליצה מאחד מהן

The Gemara derives a proof: Come and hear, as the Sage Tavyumei taught the following baraita: If this man had five sons and that man had five daughters, and the first man said: One of your daughters is betrothed to one of my sons, each and every one of the daughters requires five bills of divorce, one from each of the sons, due to the uncertainty of who is betrothed to whom. If one of the sons died before giving his bill of divorce, each and every one of the daughters requires four bills of divorce, one from each of the surviving brothers, and ḥalitza from one of them, in case she was betrothed to the deceased son. The ḥalitza of one of the brothers suffices to release her from her levirate bond. According to Rava this betrothal should not be valid, as it is not given to consummation. Why, then, do they each require bills of divorce?

וכ"ת ה"נ כשהוכרו ולבסוף נתערבו הא אחת מבנותיך לאחד מבני קתני תיובתא דרבא תיובתא והילכתא כוותיה דאביי ביע"ל קג"ם

And if you would say that here too it is referring to a case where they were identified and later intermingled, that cannot be. This is as the baraita teaches: One of your daughters to one of my sons, indicating that the betrothal could never have been given to consummation, and yet it is a valid betrothal. The Gemara concludes: The refutation of the opinion of Rava is a conclusive refutation. The Gemara further notes: And the halakha is in accordance with the opinion of Abaye when he has a dispute with Rava with regard to six halakhot, as represented by the mnemonic yod, ayin, lamed, kuf, gimmel, mem: Despair that is not conscious [yeush shelo mida’at], conspiring witnesses [eidim] who are disqualified retroactively, a side post [leḥi] standing alone, betrothal [kiddushin] that is not given to consummation, revealing intent with a bill of divorce [get], and an apostate [mumar] who sins rebelliously. Although the halakha generally is in accordance with the opinion of Rava in his disputes with Abaye, in these six cases the halakha is in accordance with the opinion of Abaye.

מעשה בחמש נשים אמר רב ש"מ ממתניתין ארבע ונקיט רב בידיה תלת

§ The mishna teaches: An incident occurred involving five women, and among them were two sisters. And one person gathered a basket of figs that were from their field, and the fruit was of the Sabbatical Year. And he said: You are hereby all betrothed to me with this basket, and one of them accepted it on behalf of all of them. And the Sages said: The sisters are not betrothed. Rav says: One can learn four halakhot from the mishna. The Gemara adds: And Rav held three of them in his hand, i.e., knew what they were, but he was uncertain about the fourth.

ש"מ המקדש בפירות שביעית מקודשת ושמע מינה קידשה בגזל אינה מקודשת אפילו בגזל דידה ממאי מדקתני שלהם היתה ושל שביעית היתה טעמא דשביעית דהפקר הוא הא דשאר שני שבוע לא

Rav clarifies: Learn from it that with regard to one who betroths a woman with produce of the Sabbatical Year, she is betrothed, and you do not say that this produce can be used only for eating and not for any other purpose. And learn from it that if one betroths a woman with a stolen item, even if it was her stolen item, she is not betrothed. You do not say that her accepting from him an item that he stole from her indicates that she released him from his obligation to return it, rendering it his to use in order to betroth her. From where can these two halakhot be deduced? It is from the fact that it teaches that the produce was from their field, and was of the Sabbatical Year, which indicates: The reason it could be used for betrothal is that the produce was of the Sabbatical Year, which causes the figs to be ownerless property. But if it was one of the other years of the seven-year Sabbatical cycle, the betrothal would not take effect with stolen property, even if she accepted it for her betrothal.

ושמע מינה אשה נעשית שליח לחבירתה ואפילו במקום שנעשית לה צרה

And learn from it: A woman can become an agent to accept a betrothal for another woman, and this is so even in a situation where she thereby becomes the rival wife of the other, as in the case of the mishna.

ואידך מאי היא קידושין שאין מסורים לביאה וניחשבה משום דמספקא ליה אי כאביי אי כרבא

The Gemara asks: And what is the other halakha, the fourth one mentioned by Rav? It is the halakha of betrothal that is not given to consummation. The Gemara suggests: And let Rav also count this halakha. The Gemara explains: He does not do so, because he is uncertain whether the correct interpretation of the mishna is in accordance with the explanation of Abaye, who maintains that such a betrothal is valid, or whether the correct interpretation of the mishna is in accordance with the explanation of Rava, which would mean it is not betrothal.

כי סליק ר' זירא אמרה להא שמעתא קמיה דר' יוחנן אמר ליה מי אמר רב הכי והוא לא אמר והאמר ר' יוחנן גזל ולא נתייאשו הבעלים שניהם אינם יכולים להקדיש זה לפי שאינו שלו וזה לפי שאינו ברשותו הכי קא"ל מי אמר רב כוותי

The Gemara relates: When Rabbi Zeira ascended to Eretz Yisrael he stated this halakha before Rabbi Yoḥanan, who said to him: Did Rav actually say so? This indicates that Rabbi Yoḥanan disagreed with the statement of Rav that these halakhot can be learned from the mishna, which leads the Gemara to ask: But didn’t he himself say so? And didn’t Rabbi Yoḥanan say: If one robbed another of an item and its owner has not despaired of recovering it, neither of them can consecrate the stolen item? This one, the robber, cannot consecrate it because it is not his, and that one, the owner, cannot consecrate it because it is not in his possession. By the same logic, one should not be able to betroth a woman with stolen property, as it is not his. The Gemara answers that Rabbi Yoḥanan was not objecting to Rav’s opinion, but this is what he said to him: Did Rav actually say in accordance with my opinion?

מיתיבי קידשה בגזל בחמס ובגניבה או שחטף סלע מידה וקדשה מקודשת התם בגזל דידה

The Gemara raises an objection against Rav’s opinion that one cannot betroth a woman with stolen property, from a baraita (Tosefta 4:5): If one betrothed her with an item taken in robbery, in a forced transaction, or in theft, or if he grabbed a sela from her hand and betrothed her with it, she is betrothed. This indicates that one can betroth a woman with stolen property. The Gemara answers: There it is referring to her stolen property, and by accepting it from him as betrothal, she indicates that she has released him from his obligation to return it.

הא מדקתני סיפא או שחטף סלע משלה מכלל דרישא בגזל דעלמא עסקינן פירושי קא מפרש קידשה בגזל בחמס ובגניבה כיצד כגון שחטף סלע מידה וקדשה בו

The Gemara asks: But from the fact that the last clause of the baraita teaches: Or if he grabbed a sela of hers, it may be inferred that in the first clause we are dealing with property stolen from others. The Gemara explains: These are not two separate cases. Instead, the tanna is explaining his earlier statement: If one betrothed a woman with an item taken in robbery, in a forced transaction, or in theft; how so? For example, if he grabbed a sela from her hand and betrothed her with it.