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"Masar Ha-av Li-shluchei Ha-ba'al"

  • Rav Yair Kahn
Translated by David Silverberg
     The mishna in our sugya states: "She remains in the father's domain until she joins the husband's domain for marriage.  If the father gave [her] to the husband's messengers, she is in the husband's domain… If the father's messengers gave [her] to the husband's messengers, she is in the husband's domain" (48a).  This mishna appears to establish that a girl becomes formally married the moment her father hands her over into the groom's domain, even before she enters the chupa.  From that moment, it seems, we consider her in the husband's domain with respect to all the halakhot mentioned in the mishna – the husband's rights to her work, items that she finds, and fruits yielded by her lands, and his responsibility to feed her, etc.  We find that she attains at that point the status of nesu'a (a married woman) for purposes of other halakhot, as well.  For example, if a girl was given over to the husband's sheluchim (messengers) and committed adultery, she is punished with chenek (strangulation), whereas a betrothed girl is liable for sekila (stoning) for adultery.  This is stated explicitly in a beraita cited later (48b).  We similarly find that she becomes a nesu'a for purposes of hafarat nedarim (the annulment of vows):
"The house of Rabbi Yishmael taught: 'The vow of a widow and of a divorcee – whatever she has imposed upon herself shall be binding upon her' – what does this come to teach us?  Has she not left from [the domain of her] father and left from [the domain of her] husband?  Rather, in a case where the father gave [her] to the husband's messengers, or if the father's messengers gave [her] to the husband's messengers, and she is widowed or divorced along the way, how do we consider her – in the house of her father, or in the house of her husband?  This thus teaches that once she left for even a moment from the father's domain, he can no longer annul [her vows]." (49a)
     However, if, indeed, the marriage takes effect from the point when the girl is given over to the husband's messengers, we must inquire as to the function served by the chupa.  If mesira effectuates the marriage, what role does the chupa play?  Indeed, this conclusion is not accepted by all Amoraim, despite the fact that it appears so straightforward in the sources among the Tannaim.  A major dispute among the Amoraim revolves around this issue. Rav and Rav Asi argue as to whether after having been given over to the husband's messengers the girl may partake of his teruma at that point.  (The daughter of a non-kohen may eat her husband's teruma if she marries a kohen.)  Rav maintains that at this point the girl is considered married for purposes of all halakhot except teruma.  Rav Asi argues and claims that with the mesira she is considered married to the kohen even with respect to teruma.  Here, however, one may claim that both Rav and Rav Asi agree that as far as Torah law is concerned, mesira indeed effectuates the status of marriage; they argue only on the level of rabbinic enactment.  After all, according to Torah law, even from the time of eirusin (betrothal) a woman may partake of the teruma of her kohen-husband.  Chazal forbade her from doing so out of concern that the husband will have the eirusin annulled after entering the chupa and discovering a physical blemish of which he had no prior knowledge.  (This would render the eirusin retroactively invalidated, and the woman will have thus eaten of teruma unlawfully.)  Similarly, then, when the girl was given over to the husband's messengers, the concern exists that he might discover a defect and annul the marriage.  Therefore, although the marriage has been completely effectuated at this point, she nevertheless may not, by force of rabbinic enactment, partake of the husband's teruma.  (This is Rashi's approach; see Tosefot s.v. Rav Asi, and the "Mahadura Kama" of Rashi in the Shita Mekubetzet.)  Later in the sugya, however, Shemuel claims that the mesira is effective with respect to the husband's inheritance of the nedunya (dowry), implying that for purposes of all other halakhot, she remains an arusa even after the mesira.  Only regarding the inheritance of the nedunya, which depends on the bride's father's waiver, do we afford significance to the mesira.  The same point can be made concerning the view of Reish Lakish, that mesira works only with respect to the ketuba payment (meaning, if she remarries, she receives from the second husband a ketuba of only one hundred).  These positions appear to directly contradict the beraitot cited earlier.
     To resolve this difficulty, Tosefot (s.v. u-Shemuel) suggest a different interpretation of Shemuel's comment:
"He does not come to exclude the annulment of vows, for soon afterward [the Gemara brings] the beraita of the house of Rabbi Yishmael that she is [after mesira] in the husband's domain for purposes of the annulment of her vows and she leaves the father's domain.  It would seem that similarly he becomes tamei for her, once the Torah excludes her from sekila [if she is unfaithful, and is sentenced instead] for chenek, for from there we extract for all matters.  Rather, he comes to exclude [only her consumption of] teruma."
According to Tosefot, Shemuel agrees that we consider a girl married from the point when she is given to the husband's messengers.  He claims only that due to rabbinic enactment, she may not, at that point, partake of her husband's teruma.  However, according to this approach, we must ask why Shemuel specifies only the halakha of nedunya.  Tosefot explain, "He mentioned her [dowry's] inheritance to add [what we would not have known intuitively], that certainly for his becoming tamei for her and the annulment of her vows mesira works as chupa, but even for the inheritance.  For one might have thought that since the husband's inheritance originates from rabbinic enactment, they did not enact [this rule] when he [only] gave her over [to messengers].  Alternatively, one might have thought that a father does not grant [the dowry] to his daughter until she enters the chupa; nevertheless, he inherits her."
Tosefot explain Reish Lakish's view in similar fashion, namely, that he excludes only the wife's partaking of teruma.  For all other matters, however, she is considered a nesu'a.  They add that Reish Lakish quite possibly excludes the inheritance of the nedunya, as well, in opposition to Shemuel's view: "Alternatively, he excludes her [dowry's] inheritance, as well, because of the reason explained earlier."
     The Rosh adds another reason to explain why Shemuel emphasizes specifically the dowry's inheritance, despite the fact that she is considered a full-fledged nesu'a: "According to the view that one inherits his wife by force of Torah law, as derived from [the word in the verse] 'she'eiro' [literally, 'his kin'], one might have thought that she is not called 'she'eiro' until entering the chupa" (Tosefot Ha-Rosh s.v. Shemuel).  Accordingly, we may explain that, Reish Lakish, maintains that a girl given over to the husband's messengers does not classify as "she'eiro," and he therefore does not inherit her until after the chupa, despite the fact that we consider her a full-fledged nesu'a with respect to all other halakhot.  In order to understand more fully this distinction, let us briefly review our discussion in the first perek, of the sugya "Higi'a ha-zeman ve-lo nis'u" (shiur #2).
     The Torah distinguishes between an arusa and a nesu'a with respect to many halakhot, but the precise difference between them is not entirely clear.  One who carefully examines the Chumash will see that an arusa still belongs to her father's home (see Devarim 22:21), and only after marriage does the bride become part of the husband's household.  Thus, for example, in the section of nedarim, the Torah describes an oath taken by a married woman with the term "beit isha" – "in her husband's home" (Bemidbar 30:11).  On the other hand, the Torah also defines a married woman as "she'eiro," such as in the context of tum'at kohanim: "None shall defile for any dead person among his kin, except for 'she'eiro' who is close to him" (Vayikra 21:1-2).  Chazal derive from here that a kohen may become tamei for the burial of his wife: "'She'eiro' means his wife, as it says, 'She is the 'she'eir' of your father'" (Torat Kohanim).  Similarly, the Torah says in the section dealing with inheritance, "You shall give his inheritance to his 'she'eir' who is close to him from his family, and he shall inherit it."  The Gemara (Bava Batra 109b) derives from here the halakha that a husband inherits his wife's estate.  There appears to be a fundamental difference between these two concepts, "beito" ("his home") and "she'eiro."  Although the term "beito" in Chumash is generally interpreted by Chazal as a reference to one's wife, nevertheless, the notion of a household is not unique to the relationship between husband and wife.  It rather includes everyone within the family framework, as in, "according to their families, the homes of their fathers ['le-veit avotam']"; "the House of Israel" ("Beit Yisrael"]; and "the House of Aharon" ("Beit Aharon").  As we saw, a girl before marriage belongs to her father's household.  The concept of "she'eiro," by contrast, is rooted in the singular, intimate relationship between husband and wife, which has no equal among the relationships between any other family members.
     In light of this distinction, Reish Lakish's view becomes perfectly clear.  True, as we have seen, upon being given over to the husband's messengers, the girl leaves her father's household and enters the husband's household.  Therefore, with regard to halakhot related to the wife's status as "beito," which includes all mutual financial obligations between husband and wife, we consider her a nesu'a.  The husband annuls her vows because we include her in the law established by the verse, "If she took a vow in her husband's home… "  If she betrays her husband, she is not liable for sekila, because she did not betray her husband in her father's home (see Devarim 22:21).  The personal, intimate connection, however, depends upon chupa.  Until that point, she is not considered "she'eiro" and he therefore does not inherit her.  Similarly, a kohen may not become tamei for his wife before chupa, since we cannot yet consider her "she'eiro ha-karov eilav."  Perhaps even Shemuel agrees to this distinction, only in his view, beyond the law of inheritance resulting from the "she'eir" status which is renewed at the chupa, the husband's inheritance of the wife also belongs to the system of mutual obligations stemming from the concept of "beito."  Indeed, the husband's obligation to tend to his wife's burial was instituted in exchange for his inheritance of the dowry (47b).  It would seem that according to Rav Huna's view, that the husband inherits his wife, he also becomes tamei for her if he is a kohen, despite the fact that we as yet cannot classify her as "she'eiro."  This situation would parallel the Gemara's discussion in Masekhet Yevamot (89b) of the marriage of a minor orphan girl, which takes effect only on the level of de-rabbanan.  The Gemara asks why the husband of a minor may become tamei for her, in violation of the Torah prohibition forbidding a kohen to become tamei, if the marriage takes effect only on the level of de-rabbanan.  The Gemara answers that the girl in this case has the status of "meit mitzva," a deceased person without anyone to tend to the burial needs, which even a kohen may bury, and by virtue of this the husband bears an obligation to see to her burial.  The Gemara explains that "since no one [else] inherits her [estate, it is as if] she calls and no one answers [and there is thus no one else to tend to her burial needs]."  Meaning, since the husband inherits her estate, Chazal defined her as a "meit mitzva" and cast upon him the responsibility of burial – although he is a kohen.
     Tosafot's explanation of Shemuel and Reish Lakish, however, is difficult to accept.  Rashi explicitly comments regarding Shemuel's statement, "For her inheritance – for this mesira is effective, that if she dies along the way the husband inherits her dowry.  For although it has been said that one does not inherit his arusa if she dies [before nesuin], here, since [the father] gave her over, the father relinquishes [the nedunya to the husband] already at this point as a result of the closeness [brought about by] the imminent marriage.  But for teruma and the exclusive rights to the annulment of her vows, and to objects she finds, which were [instituted] only out of concern of resentment [towards the wife], and at this point this concern has yet to arise – only chupa, and not mesira, works [for the marriage to take effect]."  Rashi writes explicitly that according to Shemuel, we consider a girl given over to the husband's messengers a nesu'a only with respect to the nedunya, which depends on the father's willingness to forego on the given sum.  With regard to all other halakhot, however, she has the status of an arusa, and a kohen would not become tamei for the wife's burial in such a case.  (See Shita Mekubetzet, citing Rashi in the "Mahadura Kama.")  This position, however, seems to contradict the aforementioned beraitot that clearly establish that mesira effectuates nesuin.  How could Rashi write that according to Shemuel, a husband does not, at the point of mesira, have exclusive right to hafarat nedarim – in opposition to the beraita of the house of Rabbi Yishmael?  Moreover, according to Rashi's explanation, Shemuel holds that a husband does not have rights to his wife's metzia from the point of mesira.  But this appears to contradict the mishna itself, which deals with this very halakha of metzia, and establishes that "If the father's messengers gave her to the husband's messengers, she is in the husband's domain."
     We might suggest that according to Rashi, the beraitot do, indeed, stand in opposition to the positions taken by these Amoraim.  In fact, the Gemara itself makes this observation:
"The question is raised [from the following beraita]: If the father went with the husband's messengers, or if the father's messengers went with the husband's messengers, or if she had a courtyard along the road and she went there with him to sleep, then even if her ketuba is in her husband's home, if she dies her father inherits her.  If the father gave her to the husband's messengers, or if the father's messengers gave her to the husband's messengers, or if he had a courtyard along the way and she went with him for the sake of marriage, then even if her ketuba is in her father's home, if she dies, her husband inherits her.  When does this apply?  Only with respect to her inheritance.  But regarding teruma, a woman does not partake of teruma until she enters the chupa.  This contradicts all of them [= the aforementioned positions of the Amoraim]."
Thus, the positions of most of the Amoraim cited are indeed rejected due to the beraita that establishes that mesira is effective for all purposes with the exception of teruma.  But this does not help interpret Rashi, who explore that the Gemara does not reject the view of Shemuel, that mesira is effective only for purposes of the inheritance.  If so, why did the Gemara reject the views of all the other Amoraim?  After all, the other beraitot support their positions, and they could thus counter that the issue is subject to a debate among the Tannaim!
     Regarding the case of mesira to the husband's messengers, the Yerushalmi comments:
"With respect to what [do we consider her married at that point]?  Rabbi Elazar says, for her inheritance.  Rabbi Shimon Ben Lakish says, for the annulment of her vows.  Rabbi Zeira said, although Rabbi Shimon Ben Lakish said [that mesira works] for the annulment of her vows, he agrees that he cannot annul her [vows] until she enters the chupa.  Rav Huna said, the following beraita supports Rabbi Shimon Ben Lakish: 'To defile her father's home – this excludes [a case where] the father's messengers gave her to the husband's messengers, that she is sentenced not to sekila, but to chenek." 
According to the Yerushalmi, Reish Lakish holds that mesira is effective with respect to hafarat nedarim, and yet, Rabbi Zeira clarifies that in truth the husband cannot annul her vows.  In light of this, we might explain that mesira does not afford the girl the status of nesu'a, since she has yet to enter the chupa.  The mesira is effective, according to Torah law, only in taking the woman from the father's domain, such that from the point of mesira, the father can no longer annul her vows.  Although she left the father's domain, the girl has yet to enter the husband's domain.  Therefore, the husband does not yet acquire exclusive rights over hafarat nedarim, for she has yet to be married to him, and we therefore do not fulfill the condition of, "If she vows in her husband's home."
     According to this explanation, the beraita of Rabbi Yishmael gives no indication whatsoever as to whether mesira affords the girl the status of nesu'a, or if she remains an arusa.  It says only that she has left the father's domain and he therefore can no longer annul her vows.  In similar fashion we may explain the beraita that rules that after mesira a girl who betrays her husband is liable for chenek, rather than sekila.  Perhaps this ruling results from the fact that she has left her father's domain, and not because halakha considers her a nesu'a.  As far as the prohibition of adultery is concerned, no distinction exists between an arusa and a nesu'a; halakha does not view the adultery committed by an arusa with any more gravity than it does that of a nesu'a.  Rather, the Torah sentences the arusa to the more severe punishment of sekila because of the insult to her father's home, as the verse indicates: "The girl shall be brought out to the entrance of her father's house, and the men of her town shall stone her to death; for she did a shameful thing in Israel , to defile her father's home" (Devarim 22:21).  Therefore, once she leaves her father's domain, then even if she still retains her status of arusa, she is punished not with sekila but with chenek.  The Shita Mekubetzet cites the following comment from the "Mahadura Kama" of Rashi: "She is sentenced to chenek – for she has left the category of 'a betrothed girl'."  The Ritva writes: "Tosefot ask, later we explain the mishna to mean that once she leaves for a moment from the father's domain into the husband's domain, he cannot annul [her vows] even together [with the husband].  In any event, this does not prove that she has entered the husband's domain [such that he can] annul alone, for we might explain that she left the father's domain but has yet to enter the husband's domain.  With respect to adultery, Shemuel agrees that once the father gives her [to the messengers], she is sentenced to chenek." (See Shita Mekubetzet s.v. tanna masar.)
Accordingly, we have no proof from the mishna that once the girl is given over to the messengers, the husband earns rights to her metzia (as opposed to Rashi's understanding of Shemuel).  According to our approach, the mishna perhaps comes to establish that the father's authority over his daughter continues only to the point of mesira to the husband's messengers.  Once this occurs, the father's authority over the daughter ends.  The mishna does not, however, deal at all with the point at which the nisuin takes effect.
     This debate also affects the conditions required at the time of the girl's mesira.  The mishna notes that the halakha of mesira applies only when the father's messengers give her to the husband's messengers.  The Shita Mekubetzet brings the view of the Talmidei Rabbenu Yona, requiring that the father give explicit permission to the messengers, adding that Rashi seems to imply otherwise.  Seemingly, if we deal here with the actual onset of nisuin, we would require the father's consent.  According to Rashi, however, that mesira involves not the beginning of nisuin but rather the girl's departure from her father's domain, it stands to reason that once she practically leaves the father's home, mesira is effective even without the father's explicit consent.
Sources for the next shiur:
1. 49a  "ha-av eino chayav... li-tzedaka."
2. 65b  "darash... le-chalav."  Rashi s.v. yotzeh, Tosafot Rid "yotzeh... alav."
3.  Ran [28b in pages of the Rif] "yafeh... ken," Shulchan Arukh Even Ha-ezer 71:4; Chelkak Mechokek 71:1.
4.  Rambam Hilkhot Ishut 12:14, 19:14.
5.  Tosafot 49b s.v. achfei; Rambam's Commentary on the Mishna, Avner Miluim 71:4.
6.  Rashi Bava Metzia 12a s.v. metziat beno; Ketubot 46b "zakai... eiva."  Rashi s.v. meshum.
1.  Is the psak of the Shulchan Arukh (E.H. 71:4) in agreement with the Ran's understanding regarding the obligation of the father to support his young children?
2.  What is the Rambam's position regarding this issue?
3.  Is a Rabbinic court obligated to coerce the fulfillment of the mitzva of tzedaka?
4.  How is Rashi's commentary in Bava Metzia contradicted by the gemara in Ketubot 46b?