קידושין כז

קידושין כז

נָתוּן לוֹ לִיהוֹשֻׁעַ, וּמְקוֹמוֹ מוּשְׂכָּר לוֹ. וְעִישּׂוּר אַחֵר שֶׁאֲנִי עָתִיד לָמוֹד נָתוּן לוֹ לַעֲקִיבָא בֶּן יוֹסֵף, כְּדֵי שֶׁיִּזְכֶּה בּוֹ לַעֲנִיִּים, וּמְקוֹמוֹ מוּשְׂכָּר לוֹ. שְׁמַע מִינַּהּ בָּעֵינַן צְבוּרִים בַּהּ! שָׁאנֵי הָתָם, כִּי הֵיכִי דְּלָא לַיטְרְחִינְהוּ.

is given as first tithe to Yehoshua ben Ḥananya, who was a Levite, and the place of the tithe is rented to him so that he can acquire the tithe by means of the land. And another tenth that I will measure out in the future as the poor man’s tithe is given to Akiva ben Yosef so that he will acquire it on behalf of the poor, and its place is rented to him. One can learn from here that we require the movable property to be piled on the land, as Rabban Gamliel emphasized: Its place. The Gemara rejects this argument: It is different there, as Rabban Gamliel did this so as not to trouble the Sages to whom he was giving the tithes by forcing them to transport the tithes to a different location. For reasons of convenience he transferred to the other Sages ownership of the land where the tithes were already situated.

תָּא שְׁמַע, דְּאָמַר רָבָא בַּר יִצְחָק אָמַר רַב: שְׁנֵי שְׁטָרוֹת הֵן: ״זְכוּ בְּשָׂדֶה זוֹ לִפְלוֹנִי וְכִתְבוּ לוֹ אֶת הַשְּׁטָר״ – חוֹזֵר בַּשְּׁטָר, וְאֵינוֹ חוֹזֵר בַּשָּׂדֶה. ״עַל מְנָת שֶׁתִּכְתְּבוּ לוֹ אֶת הַשְּׁטָר״ – חוֹזֵר בֵּין בַּשְּׁטָר בֵּין בַּשָּׂדֶה.

The Gemara further suggests: Come and hear a solution for this dilemma, as Rava bar Yitzḥak says that Rav says: There are two types of documents. If one says: Acquire this field for so-and-so and write the document for him as proof of the sale of the field, he can retract his agreement with regard to the document. He can change his mind and tell them not to write the document. But he cannot retract his agreement with regard to the field, as the buyer has already acquired it. By contrast, if he said: Acquire this field for so-and-so on the condition that you write him a document, if the document has not yet been given he can retract his agreement both with regard to the document and with regard to the field, as he transfers the field to him only on the condition that he writes a document.

וְרַב חִיָּיא בַּר אָבִין אָמַר רַב הוּנָא: שְׁלֹשָׁה שְׁטָרוֹת הֵן. תְּרֵי – הָא דַּאֲמַרַן, אִידַּךְ: אִם קָדַם מוֹכֵר וְכָתַב לוֹ אֶת הַשְּׁטָר, כְּאוֹתָהּ שֶׁשָּׁנִינוּ: כּוֹתְבִים שְׁטָר לַמּוֹכֵר אַף עַל פִּי שֶׁאֵין לוֹקֵחַ עִמּוֹ. כֵּיוָן שֶׁהֶחְזִיק עִמּוֹ בַּקַּרְקַע – נִקְנָה שְׁטָר בְּכׇל מָקוֹם שֶׁהוּא.

And Rav Ḥiyya bar Avin said that Rav Huna said: There are actually three types of documents. Two types are those that we said, and the other type is as follows. If the seller first wrote him the document, as a seller can write a bill of sale before the transaction and give it when he receives payment. This is as we learned in a mishna (Bava Batra 167b): A scribe may write a deed of sale for the seller of property who requests one, even if the purchaser is not with him when he presents his request. In a case of this kind, once the buyer takes possession of the land from him, the document is acquired by the buyer wherever it is, i.e., even if it is not in the possession of the buyer.

שְׁמַע מִינַּהּ לָא בָּעֵינַן צְבוּרִים בַּהּ! שָׁאנֵי שְׁטָר דְּאַפְסֵירָא דְאַרְעָא הוּא.

One can learn from here that we do not require that the property be piled on it, as in this case the document is acquired by means of the land wherever the document is located. The Gemara rejects this proof: A document is different, as it is the bridle of the land. Since the document that refers to the land is the means by which one takes possession of the land, it is considered as though the document is part of the land. Therefore, one can take possession of the document by means of the land without it actually having to be placed there. The same does not necessarily apply to other movable property, which does not refer specifically to the land.

וְהָא עֲלַהּ קָתָנֵי: זוֹ הִיא שֶׁשָּׁנִינוּ: נְכָסִים שֶׁאֵין לָהֶם אַחְרָיוּת נִקְנִין עִם נְכָסִים שֶׁיֵּשׁ לָהֶם אַחְרָיוּת בְּכֶסֶף בִּשְׁטָר וּבַחֲזָקָה! שְׁמַע מִינַּהּ: לָא בָּעֵינַן צְבוּרִים בָּהּ, שְׁמַע מִינַּהּ.

The Gemara asks: But it was taught concerning this halakha that a document can effect acquisition wherever it is located: This is what we learned in the mishna: Property that does not serve as a guarantee can be acquired along with property that serves as a guarantee by means of giving money, by means of giving a document, or by means of taking possession of them. This indicates that there is no difference between a document and other types of movable property. Consequently, one can learn from here that we do not require that the property be piled on the land. The Gemara affirms: One can learn from here that this is the case.

אִיבַּעְיָא לְהוּ: מִי בָּעֵינַן ״אַגַּב״ אוֹ לָא? תָּא שְׁמַע, דְּקָתָנֵי כֹּל הָנֵי, וְלָא קָתָנֵי אַגַּב. וּלְטַעְמָיךְ, ״קְנִי״ מִי קָתָנֵי?

A dilemma was raised before the Sages: Do we require that one who sells movable property by means of land state explicitly that this is his intention, or not? The Gemara suggests: Come and hear, as those aforementioned baraitot teach all these halakhot of acquiring movable property through land, and they do not teach the expression: By means of. This indicates that it is not necessary to specify this aspect of the acquisition. The Gemara rejects this proof: And according to your reasoning, is it taught that he must say to him: Acquire it? The baraitot do not state this, and yet everyone agrees that the seller must say to him that he should acquire the land.

אֶלָּא, עַד דְּאָמַר ״קְנִי״? הָכָא נָמֵי, עַד דַּאֲמַר ״אַגַּב״. וְהִלְכְתָא: צְבוּרִים – לָא בָּעֵינַן, ״אַגַּב״ וּ״קְנִי״ – בָּעֵינַן.

Rather, one must say that the acquisition is not effective unless he says: Acquire it, and yet the tanna did not deem it necessary to mention this requirement. Here too, the acquisition is not effective unless he says: By means of. This requirement is not mentioned because these baraitot do not discuss the type of statements he must issue, but simply are referring to the basic legal issues involved. The Gemara concludes: And the halakha is that we do not require that the property be piled on the land, but we require that the seller say that he is transferring the movable property by means of the land, and he must say: Acquire it.

אִיבַּעְיָא לְהוּ: שָׂדֶה בְּמֶכֶר וּמְטַלְטְלִין בְּמַתָּנָה מַהוּ? תָּא שְׁמַע: עִישּׂוּר שֶׁאֲנִי עָתִיד לָמוֹד, נָתוּן לִיהוֹשֻׁעַ וּמְקוֹמוֹ מוּשְׂכָּר לוֹ, שְׁמַע מִינַּהּ!

§ A dilemma was raised before the Sages: If a seller wishes to give a field in the form of a sale and with it movable property as a gift, what is the halakha? Can he transfer them together by means of a transaction performed with the land? The Gemara suggests: Come and hear a proof for this dilemma from the incident involving Rabban Gamliel, as he said: One-tenth of produce that I will measure out in the future is given to Yehoshua, and its place is rented to him. Learn from this that even if the field is rented, which is equivalent to a sale, and the tithe is given as a gift, one can transfer the two together.

אִיבַּעְיָא לְהוּ: שָׂדֶה לְאֶחָד, וּמְטַלְטְלִין לְאַחֵר מַהוּ? תָּא שְׁמַע: עִישּׂוּר שֶׁאֲנִי עָתִיד לָמוֹד נָתוּן לַעֲקִיבָא בֶּן יוֹסֵף כְּדֵי שֶׁיִּזְכֶּה בּוֹ לַעֲנִיִּים וּמְקוֹמוֹ מוּשְׂכָּר לוֹ.

Another dilemma was raised before the Sages: If one wishes to give a field to one person and movable property to another, what is the halakha? Can one transfer movable property to one person by means of land that is going to be gifted to another? The Gemara suggests: Come and hear that which Rabban Gamliel stated: One-tenth of that which I will measure out in the future is given to Akiva ben Yosef so that he will acquire it on behalf of the poor, and its place is rented to him. Although the gift is for the poor and the place is rented to Rabbi Akiva, the acquisition is effective.

מַאי ״מוּשְׂכָּר״ – מוּשְׂכָּר לְמַעֲשֵׂר. וְאִי בָּעֵית אֵימָא: שָׁאנֵי רַבִּי עֲקִיבָא, דְּיַד עֲנִיִּים הֲוָה.

The Gemara rejects this proof: What is the meaning of: Rented, in this case? It means rented for tithe. This land was not rented to Rabbi Akiva for his own use, but only so that he could receive the tithe. Therefore, the land was also given to the poor. And if you wish, say a different refutation: Rabbi Akiva is different, as he was a charity collector, and therefore he was considered like the hand of the poor. Since a charity collector collects charity on behalf of the poor, he has the status of the poor himself. If so, this cannot be compared to a case in which one transfers a certain item to one person and land to someone else.

אָמַר רָבָא: לֹא שָׁנוּ אֶלָּא שֶׁנָּתַן דְּמֵי כוּלָּן, אֲבָל לֹא נָתַן דְּמֵי כוּלָּן – לֹא קָנָה אֶלָּא כְּנֶגֶד מְעוֹתָיו.

§ Rava says: The Sages taught that one can acquire movable property by way of land only when he gives all the money for the land and the movable property. But if he did not give the money for all the property, even if they were transferred to him he acquires only the movable property corresponding to the money that he paid.

תַּנְיָא כְּווֹתֵיהּ דְּרָבָא: יָפֶה כֹּחַ הַכֶּסֶף מִכֹּחַ הַשְּׁטָר, וְכֹחַ הַשְּׁטָר מִכֹּחַ הַכֶּסֶף. יָפֶה כֹּחַ הַכֶּסֶף – שֶׁהַכֶּסֶף פּוֹדִין בּוֹ הֶקְדֵּשׁוֹת וּמַעֲשֵׂר שֵׁנִי, מַה שֶּׁאֵין כֵּן בִּשְׁטָר. וְיָפֶה כֹּחַ הַשְּׁטָר – שֶׁהַשְּׁטָר מוֹצִיא בְּבַת יִשְׂרָאֵל, מַה שֶּׁאֵין כֵּן בְּכֶסֶף.

It is taught in a baraita (Tosefta, Ketubot 2:3) in accordance with the opinion of Rava: The power of money is greater than the power of a document in one way, and the power of a document is greater than the power of money in a different way. The baraita elaborates: The power of money is greater in that money can be used to redeem consecrated property and second tithe, which is not the case with a document. And the power of a document is greater than the power of money, as a document releases a Jewish woman, i.e., a man can divorce his wife with a bill of divorce, which is not the case with money.

וְיָפֶה כֹּחַ שְׁנֵיהֶם מִכֹּחַ חֲזָקָה, וְכֹחַ חֲזָקָה מִכֹּחַ שְׁנֵיהֶם. יָפֶה כֹּחַ שְׁנֵיהֶם – שֶׁשְּׁנֵיהֶם קוֹנִים בְּעֶבֶד עִבְרִי, מַה שֶּׁאֵין כֵּן בַּחֲזָקָה. יָפֶה כֹּחַ חֲזָקָה – שֶׁחֲזָקָה מָכַר לוֹ עֶשֶׂר שָׂדוֹת בְּעֶשֶׂר מְדִינוֹת, כֵּיוָן שֶׁהֶחְזִיק בְּאַחַת מֵהֶם – קְנָאָם כּוּלָּם.

The baraita continues: And furthermore, the power of each, money and a document, as a means to transfer ownership is greater than the power of acquisition by means of taking possession, and the power of taking possession is greater than the power of acquisition of each of them. How so? The power of each of them is greater than the power of acquisition of taking possession, as each of them effects acquisition in the case of a Hebrew slave, which is not the case for taking possession (see 14b). The power of taking possession is greater than the power of acquisition of each of them, as with regard to taking possession, if one sold another ten fields in ten countries, once the buyer takes possession of one of the fields he acquires all of them.

בַּמֶּה דְּבָרִים אֲמוּרִים – שֶׁנָּתַן לוֹ דְּמֵי כוּלָּן, אֲבָל לֹא נָתַן לוֹ דְּמֵי כוּלָּן – לֹא קָנָה אֶלָּא כְּנֶגֶד מְעוֹתָיו. מְסַיַּיע לֵיהּ לִשְׁמוּאֵל, דְּאָמַר שְׁמוּאֵל: מָכַר לוֹ עֶשֶׂר שָׂדוֹת בְּעֶשֶׂר מְדִינוֹת, כֵּיוָן שֶׁהֶחְזִיק בְּאַחַת מֵהֶן – קָנָה אֶת כּוּלָּן.

In what case is this statement said? It is said in a case when he gave him money for all of the land. But if he did not give him money for all of it, he acquires only the land corresponding to the money that he paid, in accordance with the opinion of Rava. The Gemara comments: The baraita supports the opinion of Shmuel, as Shmuel says: If one sold another ten fields in ten countries, once he takes possession of one of them he acquires all of them.

אָמַר רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא: תֵּדַע, שֶׁאִילּוּ מָסַר לוֹ עֶשֶׂר בְּהֵמוֹת בְּאַפְסָר אֶחָד וַאֲמַר לֵיהּ ״קְנֵי״ – מִי לָא קָנֵי? אֲמַר לֵיהּ: מִי דָּמֵי? הָתָם אִיגּוּדוֹ בְּיָדוֹ, הָכָא אֵין אִיגּוּדוֹ בְּיָדוֹ.

Rav Aḥa, son of Rav Ika, said: Know that this is true, as, if he handed him ten animals with one bridle [afsar] and said to him: Acquire them, doesn’t he acquire all of them? In this case, too, they are considered like one field. A Sage said to Rav Aḥa, son of Rav Ika: Is it comparable? There, its bond, i.e., the bridle that joins the animals, is in his hand. Here, in the case of ten fields, its bond is not in his hand.

אִיכָּא דְּאָמְרִי: אָמַר רַב אַחָא בְּרֵיהּ דְּרַב אִיקָא: תֵּדַע דְּלָא קָנֵי, אִילּוּ מָסַר לוֹ עֶשֶׂר בְּהֵמוֹת בְּאַפְסָר אֶחָד וְאָמַר לוֹ ״זוֹ קְנֵי״ – מִי קָנֵי?

There are those who say that Rav Aḥa, son of Rav Ika, said: Know that he does not acquire all of the fields by taking possession of only one field, as, if one passed to him ten animals with one bridle and said to him: Acquire this one, does he acquire all of them? The same applies here when he takes possession of only one field; it is as though he said to him: Acquire this one, and therefore he does not acquire the other fields in this manner.

מִי דָּמֵי? הָתָם גּוּפִים מוּחְלָקִים, הָכָא סַדָּנָא דְאַרְעָא חַד הוּא.

The Gemara rejects this argument: Is it comparable? There, the animals are separate entities, and therefore when he says to him: Acquire this one, there is no reason that the other animals should be acquired as well. Here, the mass of the earth is one. Consequently, if he acquires one plot of land, he acquires the other plots along with it.

וְזוֹקְקִים אֶת הַנְּכָסִים וְכוּ׳. אָמַר עוּלָּא: מִנַּיִן לְגִלְגּוּל שְׁבוּעָה מִן הַתּוֹרָה?

§ The mishna teaches: And in a legal dispute involving both land and movable property, if the defendant makes a partial admission of the claim with regard to the movable property, thereby rendering himself obligated to take an oath denying any responsibility for the remaining property, the movable property binds the property that serves as a guarantee, i.e., the land, so that he is forced to take an oath concerning the land as well, despite the fact that one is generally not obligated to take an oath for a claim involving land. Ulla says: From where is it derived from the Torah that one can impose the extension of an oath, i.e., if one is required to take an oath for one claim, the other party can obligate him to take an oath with regard to other claims which on their own would not lead to the imposition of an oath?

שֶׁנֶּאֱמַר: ״וְאָמְרָה הָאִשָּׁה אָמֵן אָמֵן״, וּתְנַן: עַל מָה הִיא אוֹמֶרֶת ״אָמֵן אָמֵן״? ״אָמֵן״ עַל הָאָלָה, ״אָמֵן״ עַל ״הַשְּׁבוּעָה״. ״אָמֵן״ אִם מֵאִישׁ זֶה, ״אָמֵן״ אִם מֵאִישׁ אַחֵר. ״אָמֵן״ שֶׁלֹּא סָטִיתִי אֲרוּסָה וּנְשׂוּאָה וְשׁוֹמֶרֶת יָבָם וּכְנוּסָה.

As it is stated with regard to a sota: “And the woman shall say: Amen, amen” (Numbers 5:22), and we learned in a mishna (Sota 18a): Concerning what does she say the double expression of: Amen, amen? She says amen on the curse, as she accepts the curse upon herself if she is guilty, and amen on the oath, as she declares that she is not defiled. She states: Amen if I committed adultery with this man about whom I was warned, amen if I committed adultery with another man. Amen that I did not stray when I was betrothed nor after I was married, nor as a widow waiting for my yavam to perform levirate marriage, since a woman at that stage is prohibited from engaging in sexual intercourse with any men, nor when married through levirate marriage to the yavam.

הַאי אֲרוּסָה הֵיכִי דָּמֵי? אִילֵּימָא דְּקַנִּי לַהּ כְּשֶׁהִיא אֲרוּסָה, וְקָא מַשְׁקֵי לַהּ כְּשֶׁהִיא אֲרוּסָה, וְהָתְנַן אֲרוּסָה וְשׁוֹמֶרֶת יָבָם לֹא שׁוֹתוֹת וְלֹא נוֹטְלוֹת כְּתוּבָּה, מַאי טַעְמָא – ״תַּחַת אִישֵׁךְ״ אָמַר רַחֲמָנָא, וְלֵיכָּא.

The Gemara analyzes this halakha: What are the circumstances with regard to this betrothed woman? If we say that he warned her not to seclude herself with a particular man when she was betrothed, and he gives her the bitter water of a sota to drink when she is betrothed, but didn’t we learn in a mishna (Sota 23b): With regard to a betrothed woman who secluded herself with another man after being warned by her betrothed, and a widow waiting for her yavam to perform levirate marriage who secluded herself with another man after being warned by her yavam, they neither drink the bitter water nor collect payment of their marriage contracts. What is the reason for this? The Merciful One states as part of her oath: “But if you have gone aside, being under your husband” (Numbers 5:20), and that does not apply here, as these women are not yet under their husband’s authority.

אֶלָּא דְּקַנִּי לַהּ כְּשֶׁהִיא אֲרוּסָה, וְנִסְתְּרָה כְּשֶׁהִיא אֲרוּסָה, וְקָא מַשְׁקֵי לַהּ כְּשֶׁהִיא נְשׂוּאָה,

Rather, one must say that he warned her when she was betrothed, i.e., he warned her when she was betrothed not to seclude herself with a particular man, and she secluded herself with that man when she was betrothed, and he gave her the water to drink when she was married.

מִי בָּדְקִי לַהּ מַיָּא? ״וְנִקָּה הָאִישׁ מֵעָוֹן״ אָמַר רַחֲמָנָא, בִּזְמַן שֶׁהָאִישׁ מְנוּקֶּה מֵעָוֹן – מַיִם בּוֹדְקִים אֶת אִשְׁתּוֹ, אֵין אִישׁ מְנוּקֶּה מֵעָוֹן – אֵין הַמַּיִם בּוֹדְקִים אֶת אִשְׁתּוֹ.

The Gemara asks: But in this case, does the water she is given to drink examine her and cause her death? Doesn’t the Merciful One state: “And the man shall be clear from iniquity” (Numbers 5:31)? This verse indicates: When the man is clear from iniquity, the water examines his wife; but if the man is not clear from iniquity with regard to the matter of illicit sexual intercourse, the water does not examine his wife. Since he suspected her of impropriety when she was betrothed and warned her about a particular man, and she secluded herself with that man regardless of his warning, he was not allowed to engage in intercourse with her. If he did so, he is a sinner himself, and therefore the water will not affect his wife. If so, it is impossible for a betrothed woman to be examined as a sota.

אֶלָּא עַל יְדֵי גִלְגּוּל!

Rather, it is clear that this oath is administered by means of an extension. Although the husband cannot force her to take an oath only with regard to her behavior before they were married, since she must take an oath with regard to her behavior during her marriage, he can extend the oath to include incidents that occurred while she was betrothed.

אַשְׁכְּחַן סוֹטָה, דְּאִיסּוּרָא, מָמוֹנָא מְנָלַן? תָּנָא דְּבֵי רַבִּי יִשְׁמָעֵאל: קַל וָחוֹמֶר: וּמָה סוֹטָה

The Gemara comments: We found a source for the extension of an oath in the case of a sota, which is a halakha involving a prohibition. From where do we derive that an oath can be extended with regard to monetary matters as well? The school of Rabbi Yishmael taught that this can be derived through an a fortiori inference: And just as in the case of a sota,