12TH CYCLE DEDICATION
NEDARIM 30 - (13 Shevat) - dedicated by Steven and Lynn Farber l'Iluy Nishmas Steven's mother, Esther (bas Rav Moshe) Farber of Riverdale, NY, who passed away on 13 Shevat 5763. A descendant of the Chasam Sofer, Esther was a courageous woman whose dedication to Torah ideals affected the lives of her many students and friends.

1) "PADA'AN ACHERIM"

QUESTION: Rav Hoshiya asks what the Halachah is in a case in which a man gives two coins to one woman in order to make one Kidushin now and a second Kidushin after he divorces her. He attempts to prove that the second Kidushin takes effect from the Mishnah which teaches that when a person declares that his Neti'os (saplings) are Kadosh until they are cut down, the Neti'os become Kadosh again after he redeems them (Pidyon).

Rebbi Yirmeyah rejects this proof. If, in the case of the Mishnah, someone else comes and redeems the Neti'os ("Pada'an Acherim"), the Neti'os do not become Kadosh again even if the one who consecrated them purchases them from him. There is a moment at which his act of consecration cannot take effect (after the Pidyon, before he re-purchases them); since the Hekdesh cannot take effect at the moment of his declaration, it cannot take effect later when the Neti'os are back in his possession. Similarly, in the case of Kidushin of a woman, when one is Mekadesh her a second time it is like "Pada'an Acherim": after he gives her a Get (from the first Kidushin) she is no longer in his domain such that his earlier Kidushin may take effect. The Kidushin cannot take effect immediately because she must agree to the Kidushin again after the Gerushin. Therefore, even if she later agrees to the earlier act of Kidushin, it does not take effect because it was not in the ability of the Mekadesh to effect a Kidushin the entire time.

Why does the Gemara say that when the woman is divorced, it is like "Pada'an Acherim" and thus it is not in the man's ability to make a second Kidushin take effect right away? The Gemara earlier (29b) teaches that when a man gives money to a woman for Kidushin and says that the Kidushin should take effect only after a certain time (or after a certain action), one opinion maintains that the woman cannot change her mind. If she cannot change her mind, when the man gives her two coins and says that the second coin should effect a Kidushin as soon as he divorces her from the Kidushin effected by the first coin, the second Kidushin should take effect immediately after the Gerushin! The second Kidushin should take effect immediately because of her previous agreement. Why, then, is it like a case of "Pada'an Acherim," wherein the second Hekdesh cannot take effect immediately after the first?

ANSWERS:

(a) The ROSH and TOSFOS do not address this question. They write simply that since the woman's agreement is still needed for the Kidushin to take effect, it is considered like a case of "Pada'an Acherim."

It is possible that the Rosh understands that the opinion earlier (29b) which maintains that she cannot change her mind when she accepts a Kidushin that will take effect at a later date means not that the Kidushin automatically takes effect at the specified moment in the future without the need for further agreement on her part. Rather, it means that the woman is not permitted to change her mind and to refuse the Kidushin since she already agreed to it; once she gave her word, accepted the money, and promised in return to make a Kidushin, she is obligated to keep her word (Bava Metzia 48a). The Kidushin, however, still requires her consent at the later date in order to take effect. Accordingly, even though she is not allowed to change her mind, if she does change her mind the Kidushin will not take effect.

This interpretation is evident from the way in which the Rosh explains the Gemara's statement (29b) that both opinions agree that with regard to Hekdesh, one cannot change his mind because of the principle of "Amiraso la'Gavo'ah k'Mesiraso l'Hedyot." The Rosh explains that this does not mean that the Hekdesh will take effect after thirty days have passed against the owner's will. Rather, it means that he is prohibited to change his mind and retract the Hekdesh because his declaration of Hekdesh was like a Neder of Nidrei Mitzvah to make the object Kadosh, and hence he is obligated to keep his word.

(b) However, the RAN does not interpret "Amiraso la'Gavo'ah k'Mesiraso l'Hedyot" in that way. He apparently understands that according to the opinion that the woman may not change her mind, she is not able to change her mind once she has already accepted the Kidushin, even though it has not yet taken effect.

Why, then, is that case like a case of "Pada'an Acherim"? The Ran explains that the woman plays a passive role in effecting the Kidushin. She merely needs to make herself Hefker and let the man take her. Therefore, after a Get is given she is not yet Hefker, and making a new Kidushin with her still depends on her decision to make herself Hefker. The Gerushin which removes the first Kidushin is considered like "Pada'an Acherim," wherein she acquires herself back, so to speak, since she takes part in accepting the Gerushin while she is not an active participant in the Kidushin.

How does this answer the question? If the woman originally agreed to a second Kidushin, she cannot change her mind and must make herself Hefker immediately upon being divorced from the first Kidushin. Consequently, there is no single moment during which the second Kidushin cannot take effect and during which she is considered to be in the domain of someone else (Reshus Acherim); immediately after the Gerushin she will make herself Hefker (whether she wants to or not) because of her previous agreement!

The Ran apparently means that since Kidushin requires not only her consent but also that she make herself Hefker, after the Gerushin there must be a moment during which the woman is in her own Reshus, with complete control, in order to be able to make herself Hefker. She must go from being married (a state of being Mevatel her Da'as to her husband) to being independent of her husband, and then once she is in control of her own Da'as she is able, again, to be Mevatel her Da'as to her husband. She cannot go from a state of being in someone else's Reshus to being in someone else's Reshus again. Rather, she must first be in her own Reshus in order to allow herself to be taken into someone else's Reshus. Although she agreed earlier and cannot change her mind, nevertheless since there is a moment after the Gerushin during which the Kidushin cannot take effect because she must have her own Da'as before she can be Mevatel her Da'as and make herself Hefker, it is like "Pada'an Acherim."

2) MAKING A SECOND KIDUSHIN TAKE EFFECT

QUESTION: The RAN quotes the RASHBA who discusses the Halachic ruling in the case of Rav Hoshiya, in which a man gives two coins to one woman in order to effect one Kidushin now and a second Kidushin after he divorces her. The Rashba rules that the second Kidushin does take effect based on the Gemara in Kesuvos (59b) which says that when a person sells a field to his friend and says, "This field that I am selling to you should become Hekdesh as soon as I buy it back from you," the field becomes Hekdesh. The reason the field becomes Hekdesh at the later time is that since now he has the ability to be Makdish it, even if it leaves his possession before the Hekdesh takes effect, the Hekdesh still takes effect at the later time.

The Rashba says that the same logic applies to the case of Kidushin in the Gemara here: the second Kidushin will take effect because he could have been Mekadesh her with that Kidushin right now (before the first Kidushin and the Gerushin).

The Ran does not accept the Rashba's comparison. He argues that in the case of the person who sells the field, the owner could have made the field Hekdesh at the moment he sold it just as well as he could have made it Hekdesh later, and that is why the Hekdesh takes effect later when he buys back the field. In contrast, in the case of Kidushin the second Kidushin cannot take effect at the moment that he is Mekadesh her, because the first Kidushin takes effect at that moment. Once she is already Mekudeshes she cannot become Mekudeshes with a second Kidushin now, and thus the second Kidushin also should not take effect later (because it is not "b'Yado," within his ability to make it take effect now).

The Ran's argument is difficult to understand, because it should apply equally in the case of one of who sells his field and says that it should be Hekdesh when he buys it back. In that case, the Hekdesh cannot take effect now because he has already sold the field to the buyer, just as the Ran explains in the case of the second Kidushin. It should not be considered "b'Yado" just as the second Kidushin is not considered "b'Yado" according to the Ran. Why does the case of one who says that the field should become Hekdesh differ from the case of one who is Mekadesh a woman with two sets of Kidushin (where the second Kidushin cannot take effect now because the first Kidushin has already taken effect)?

ANSWER: The CHAZON ISH explains the intent of the Ran here based on the words of the Ran in Kidushin (62b). The Gemara in Kesuvos does not say that a person sells his field and says at the moment that he sells it, "When I buy it back it will be Hekdesh." Rather, the Gemara says merely that before a person sells his field he may say to the purchaser, "I am going to sell you this field at some point in the future, and after I buy it back from you it will be Hekdesh." He is not selling it at the same time at which he pronounces the Hekdesh. He is able to make it Hekdesh at that moment, since the field is still in his possession. In contrast, when a man gives two coins to a woman, at the moment he declares the second Kidushin it cannot take effect because the first Kidushin takes effect at that moment.

Perhaps the Rashba does not make this distinction because he understands that since the two sets of Kidushin are made at the same instant, either one of them could take effect -- the Kidushin of the first coin, or the Kidushin of the second coin. Therefore, the Rashba considers it "b'Yado" to make the second Kidushin take effect at that moment.

30b----------------------------------------30b

3) HALACHAH: A MAN'S HEAD-COVERING

OPINIONS: The Mishnah states that a person who makes a Neder to prohibit himself from benefit from "Shechorei ha'Rosh" -- "those whose heads are covered with black hair" -- is prohibited from deriving benefit from all men, and is permitted to derive benefit from women and children. The RAN explains that the term "Shechorei ha'Rosh" refers to men because had the person intended to prohibit himself from women, he would have said "those whose heads are covered." Had he intended to prohibit himself from children, he would have said "those whose heads are uncovered." He would not have referred to men as "those whose heads are covered" because some men cover their heads and some men do not. Hence, he used a different phrase. Since most men have black hair, he calls all men "Shechorei ha'Rosh."

The Halachah of the Mishnah (according to the Ran's explanation) implies that it is not obligatory for a man to cover his head.

According to the Halachah, is a man obligated to cover his head (such as with a "Kipah")?

(a) The TUR (OC 8) writes that when one dons his Talis in the morning he should be careful "to cover his head so that he not be bareheaded." The words of the Tur imply that one must cover his head (with the Talis) only so that he not be bareheaded while he prays, but it is not necessary to wear a head-covering at other times. Indeed, the DARCHEI MOSHE there writes that it is only a Midas Chasidus, an act of piety, to cover one's head, but it is not obligatory. This is also the view of the RAMBAM. Hence, only when one prays or recites a blessing must he cover his head.

(b) The BEIS YOSEF there asserts that the Tur certainly does not mean that it a Jewish man is permitted to go bareheaded. He explains that the Tur means that one must cover his head with the Talis so that his head will not be bare of the Talis. The Beis Yosef says that part of the Mitzvah of wearing a Talis involves covering one's head with it.

(c) The TAZ (OC 8:3) writes that the Tur does not refer to covering one's head with the Talis. Rather, the Tur means that one must cover his head with a Kipah while he prays. One might have thought that since he covers his head with the Talis he does not need to wear a Kipah while he prays. Therefore, the Tur says that one must wear a Kipah as well because the Talis does not suffice as a head-covering since it often slips off the head.

The Taz then cites the MAHARSHAL (Teshuvos #72) who discusses whether one is prohibited by the letter of the law (m'Ikar ha'Din) from going bareheaded. The Maharshal concludes that one is prohibited m'Ikar ha'Din only from praying or reciting a blessing while bareheaded. (Some authorities maintain that even when one recites a blessing, m'Ikar ha'Din it is not necessary to cover his head. See TERUMAS HA'DESHEN #203 and VILNA GA'ON OC 8.)

The Taz disagrees with the Maharshal and says that going bareheaded is prohibited m'Ikar ha'Din at all times because of the Isur d'Oraisa of, "You shall not go in their ways." Since the Nochrim (during the time of the Taz) specifically removed their head-covering for ritual purposes (see IGROS MOSHE, end of OC 1:1), a Jew is forbidden from going bareheaded so that he not act in the ways of the Nochrim. However, many Acharonim (see MAGEN AVRAHAM OC 2 and OC 91) question the Taz's reasoning. (See also SEDEI CHEMED, vol. 5, pp. 230, 262, and vol. 2, pp. 17, 40).

HALACHAH: The universal practice today is that every G-d-fearing Jew covers his head. The MISHNAH BERURAH (OC 2:10-12) cites the TAZ who says that one is forbidden from leaving his head uncovered, but even according to the opinion that it is not forbidden m'Ikar ha'Din, it certainly is proper to cover one's head, and it has been the practice of all Jewish men to do so throughout the generations. Hence, one should not walk four Amos without a head-covering (SHULCHAN ARUCH OC 2:6; see Mishnah Berurah there for various other details of this Halachah).

Based on the abovementioned opinions that wearing a head-covering is not obligatory m'Ikar ha'Din, RAV MOSHE FEINSTEIN zt'l rules that one whose job or income will be jeopardized by his insistence on wearing a head-covering is permitted to remove his head-covering when he works (IGROS MOSHE OC 4:2).

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