Kiddushin 2 · The Lantern

MISHNAH: A man may contract a premininary marriage either in person or through an agent [Since the groom is not permitted to live with the bride before the definitive marriage, the preliminary marriage is a legal, not a personal, act and may be executed either by the principal or by his duly appointed representative. For the same reason, a woman may appoint a representative to agree on her behalf to the stipulations proposed by the groom.] , and a woman may be taken in preliminary marriage either in person or through an agent. A man may give away his adolescent daughter [Who still can be married off by her father without necessarily being asked, while she is able to act in law in other respects; cf. Chapter 1, Note 228, Yebamot 1:2, Note 159.] in preliminary marriage himself or through his agent. If a man say to a woman: Be married to me preliminarily by this date fruit, be preliminarily married by that one, she is preliminarily married if one of them was worth a peruṭah, otherwise she is not preliminarily married [Two separate gifts of less than a peruṭah each do not add up to one gift of a peruṭah.] . By this and by that one, she is preliminarily married if together they are worth a peruṭah [If the entire gift was given, or at least promised, as a whole, it does not matter of how many individual pieces it is composed.] , but if she was eating immediately [If the dates were not promised as a bunch but given as “this and this and this” and the first date was already eaten by the time the second was received, they cannot be counted together since a nonexisting object cannot be counted together with an existing one. But if ten dates were promised at the outset in so many words and the prospective bride ate each one as soon as she received it, she is preliminarily married as soon as together they had represented a peruṭah’ s worth.] what she received, she is not preliminarily married unless one of them was worth a peruṭah.

HALAKHAH: “A man may contract a premininary marriage either in person or through an agent,” etc. From where that a person’s agent may act in his stead [Since preliminary marriage is an act prescribed by biblical standards, one has to ascertain that agency is admissible in the fulfilment of biblical decrees. {Agency always is direct representation as in Egyptian and Roman law (cf. R. Taubenschlag, The Law of Greco-Roman Egypt in the Light of the Papyri, New York 1944, §37). Indirect representation is authorized only if it unquestionably is to the benefit of the person represented; cf. Giṭṭin 1:6, Notel74.}] ? Rebbi Eleazar said: “The entirety of the assembly of the congregation of Israel shall slaughter it in the evening. [Ex. 12:6.] ” But do all of them slaughter [Since the Passover sacrifice is not an individual but a family affair, it is obvious that only one person can slaughter for his entire family.] ? Does not one slaughter for the many? From here [it follows that] a person’s agent may act in his stead [Mekhilta Bo,Masekhet Depisḥa Chap. 5 (ed. Horovitz-Rabin, p. 17) as tannaïtic statement; in the Babli attributed to R. Joshua ben Qorḥa. The parallel discussion in the Babli, 41a–42a, is a long-winded, possibly Saboraic, affair.] . And that would be the same as: “Everybody should take for himself a sheep for the family, a sheep to a house [Ex. 12:3. The same argument applies as for the other verse. Then the question arises, at least for the school of R. Aqiba, why the same rule has to be expressed by two separate verses. This contradicts R. Aqiba’s axiom that the Torah text admits of no redundancies.] .” Did everyone take? Did not one take for the many [In Mekhilta Bo,Masekhet Depisḥa Chap. 3 (ed. Horovitz-Rabin, p. 11) this also is a tannaïtic statement, not the subject of a discussion.] ? From here [it follows that] a person’s agent may act in his stead. Rebbi Yose said, there is a difference, for a person may slaughter the Passover sacrifice of another without the latter’s knowledge [The people participating in the Passover meal do not have to know who prepared it. Therefore, the slaughterer does not have to be the agent of every participant; the verse Ex. 12:6 does not prove the thesis for which it was quoted.] . If you wanted to say that a person may separate the Passover sacrifice for another without the latter’s knowledge, you cannot say so, for Rebbi Ze‘ira said in the name of Rebbi Eleazar that a person may slaughter the Passover sacrifice of another without the latter’s knowledge, but nobody may separate the Passover sacrifice for another without the latter’s knowledge [Pesaḥim 8:1 (35d 1. 13), Babli Nedarim 36a. A person who was not inscribed beforehand in the list of participants cannot join the Passover celebration; Mishnah Zebaḥim 5:8. Only Ex. 12:3 is a proof; there is no redundancy.] .

The House of Shammai say, an agent may not testify as witness. But the House of Hillel say, an agent may testify as witness [In the Babli, 43a, the Tannaïtic tradition is declared to be unclear. The problem is that if an agent acts instead of the principal, he should be disqualified from acting as a witness if the principal is unable to testify. Since relatives are disqualified as witnesses and everybody is a relative of himself, an agent should be disqualified in any suit involving the principal’s money.] . How is that? If he sent two [In the quote of this baraita in the Babli, 43a, “three”. Qorban Ha‘edah reads the statement as “two [in addition to the agent]”.] , in the opinion of the House of Shammai there is an agent and two witnesses [Only one of the three may be appointed as agent to reserve the option of proving a case in court by witnesses.] . In the opinion of the House of Hillel, all three can be agents and all three can be witnesses [At the same time agents and witnesses.] . Rebbi Abun bar Ḥiyya said, the matter is reasonable if the preliminary marriage was executed by document. But if he executed the preliminary marriage by money, he became an interested party in his testimony [If he did not deliver the money to the prospective bride, he would have to pay back the consignor; his testimony is self-serving and therefore barred.] . Rebbi Yose said, since the Torah made him trustworthy [All commentators have great difficulty with this statement, from Tosaphot (43b s. v. וכן) and Rashba (Novellae, 43a s. v. ירושלמי) to the commentators of Maimonides (ad Iššut3:16) and the standard commentators of the Yerushalmi (שיירי קרבן and מראה פנים ad loc.). In fact, R. Yose’s remark is incompatible with the Babli’s treatment of the subject in 43a/b. R. Yose seems to argue that the monetary aspect is irrelevant. The main consequence of preliminary marriage is to forbid the woman to any man other than her fiancé; this is not a matter of civil law. It is a principle in both Talmudim that in matters of prohibitions a single witness has standing by biblical law (cf. Soṭah 6:2, Note 26). Since the agent has standing in biblical law to force her to go to court if she wants to marry any other man, he also has standing to join another witness in the related financial case.] , even if he executed the preliminary marriage by money, he did not become an interested party in his testimony. Rebbi Abba said, there came a case before Rav who admitted the agent as witness [Since the normal case is preliminary marriage by money, it must be assumed that the case before Rav was of this kind. Since Rav was the foremost authority in Babylonia, his decision was obligatory precedent in Babylonia.] . A person deposited his amphoras in another’s corral; [the latter] reneged [He said that all amphoras in his corral were his own property. This is a purely financial case, where R. Yose’s argument is irrelevant.] . The case came before Rebbi Jeremiah who admitted the agent as witness and made him swear [by the testimony of] the porter [The person hired to deliver the amphoras to the corral was admitted as witness in court, even though his testimony was partly self-serving since he would have been liable as a thief had he failed to deliver the amphoras. Since R. Jeremiah had a low opinion of everything Babylonian, it follows that the rule admitting an agent as witness is accepted both in Babylonia and in Galilee.] .

Some baraita implies that the agent of a person acts in his stead, and some baraita implies that the agent of a person does not act in his stead [Everybody agrees that there exist situations in which an agent acts with the full authority of a principal and others where only the person himself can act. The question is, what is the normal case and what is the exception?] . “If he definitively will substitute [This seems to be a quote from Lev. 27:10, but there the masoretic text is הָמֵר יָמִיר. If the word יְמִירֶנּוּ is not a slip of the scribe’s pen, the reference might be to יַחֲליפֶנּוּ (“he himself may exchange it”) in the same verse. There is no explicit baraita in rabbinic literature which would invalidate substitution by agent; the double expression is always interpreted as an addition in R. Aqiba’s system. In Sifra Beḥuqqotay Pereq 9(6), the double expression is interpreted to include a woman for her own sacrifice and an heir for an inherited one. Since the agent is not mentioned, he is excluded. In the Babli, Temurah 2a, the statement of Sifra is characterized as R. Meïr’s.] , if he himself will dissolve [Num. 30:14. This does not refer to an infinitive construction but to the use of the word יְפֵרֶנּוּ instead of the simple יָפֵר. In R. Aqiba’s system, suffixes always carry a special meaning. The argument is explicit in the Babli, Nazir 12b, where the Tanna R. Joshia quotes Num. 30:14 to prove that a husband cannot delegate his power over his wife’s vows to an attorney. R. Jonathan holds that an agent always can act for his principal.] .” We may hold that a person’s agent cannot act in his stead because Scripture excluded him. “He shall lean his hand, [Lev. 1:4;3:2,8,13;4:24,29,33, a necessary action to validate a sacrifice. The repetition of his hand in all these verses is taken in the Babli, Menaḥot93b, as proof that any agency is impossible for animal sacrifices.] ” not the hand of his son nor the hand of his slave nor the hand of his agent [This formulation is in Sifra Wayyiqra Pereq 4(2).] . We may hold that a person’s agent can act in his stead but [in this case] Scripture excluded him. “His master shall pierce his ear with an awl [Ex. 21:6, speaking of the Hebrew slave; cf. Chapter 1:2.] ;” “his master” but not the latter’s son, “his master” but not the latter’s agent [Mekhilta dR.Ismael,Neziqin 2 (ed. Horovitz-Rabin p. 253), dR.Simeon ben Ioḥai Mišpaṭim 6:6.] . We may hold that a person’s agent can act in his stead but Scripture excluded him. Some Tannaïm state: “He shall pierce”, to include the agent. This follows Rebbi Aqiba. Following Rebbi Ismael? “His master”, anybody acting on his master’s authority [This opinion is not found in any parallel source.] .

[From Giṭṭin 6:2, Notes 55–69. Variant readings are given there.] We have stated: “A preliminarily married adolescent girl, or her father, can accept her bill of divorce.” Rebbi Simeon ben Laqish said, like the disagreement about divorce is the disagreement about preliminary marriage. Rebbi Joḥanan said, everybody agrees about preliminary marriage that her father contracts but not she herself. Rebbi Simeon ben Laqish agrees about a definitive marriage that she is not empowered to marry herself off and to let her father lose her earnings. In the opinion of Rebbi Joḥanan she has no legal standing relative to her father and cannot appoint an agent. In the opinion of Rebbi Simeon ben Laqish she does have legal standing relative to her father and can appoint an agent. A Mishnah disagrees with Rebbi Joḥanan: “A man contracts a preliminary marriage either in person or through his agent and a woman contracts a preliminary marriage either in person or through her agent.” He explains it about an adult woman. But did we not state: “If an underage girl said, accept the bill of divorce for me, it is no valid bill of divorce until it reaches her hand.” He explains it about an orphan. But did we not state: “If her father said to [an agent]: Go and receive my daughter’s bill of divorce, if [the husband] wants to retract he cannot retract.” He explains that the Mishnah deals with cases; the first part about an orphan and the second part if she has a father. A Mishnah disagrees with Rebbi Simeon ben Laqish. “A man may contract a preliminary marriage for his adolescent daughter either by himself or by his agent.” He explains that following Rebbi Jehudah, since Rebbi Jehudah said, “no two hands can acquire together.” Rebbi Yose said, a rabbi came out from the assembly and said, a case was decided following Rebbi Joḥanan. Can one rely on that? It was no question of relying on him since it was as from the sea to the frying pan.

Rav Hamnuna in the name of Rebbi Assi [The Babylonian, Rav Assi in the Babli.] : If an underage girl married herself off preliminarily with two pubic hairs [This statement seems to be a contradiction in terms. The definition of an underage girl is a female who does not yet have two pubic hairs. The interpretation can be either that she contracted the marriage when she was underage but now, when the case comes to court, she already became an adolescent (R. Moses Margalit) or, preferably, that she is an adolescent (Chapter 1, Note 228) who, while legally responsible, still is under her father’s authority in marital matters (R. David Fraenckel). In either case it is presumed that the father was not informed of the preliminary marriage at the time it was contracted. In the Babli, 46a, Rav Assi’s statement is that only the father has the right to annul her marriage but not she herself, since she unlawfully arrogated to herself the rights of an adult. In the Babli, practice is decided following Rav that both her father and herself have the right to unilaterally terminate the irregular preliminary marriage.] , her father repudiates the marriage [Repudiation of a marriage is possible only for an orphan girl who was married off by her mother or brothers, who can walk out of a marriage by a simple declaration as long as she is formally underage, i. e., did not grow two pubic hairs (Yebamot Chapter 13). In the present case, the expression “repudiates” would seem to be inappropriate but it is justified in the Babli (46a) by reference to Ex. 22:16 which uses the verb מאן to describe the father’s veto of the marriage of his daughter to her seducer.] but not she herself. This follows neither Rebbi Joḥanan nor Rebbi Simeon ben Laqish. If following Rebbi Joḥanan, there is no place for repudiation [Since only the father has the right to contract the marriage of his underage or adolescent daughter, there is no marriage and the transaction does not have to be nullified.] . If following Rebbi Simeon ben Laqish, the marriage is valid by biblical standards [Since he holds that there is an opinion which gives the adolescent girl the right to marry on her own, he would have to require a valid bill of divorce to dissolve the marriage.] . It follows only Rebbi Joḥanan. Even though Rebbi Joḥanan says that everybody agrees about preliminary marriage that her father contracts but not she herself, he agrees in this case that the father repudiates on her behalf [R. Joḥanan agrees that the marriage contracted by an adolescent on her own is valid if it is not countermanded by her father. She herself cannot walk out of a union contracted by herself as an adolescent. Since this statement cannot hold for a marriage contracted by an underage girl without her father’s knowledge, it seems that the interpretation of R. Moses Margalit cannot be sustained.] .

Rebbi Abba bar Cahana and Rebbi Jacob bar Idi in the name of Rebbi Joshua ben Levi: If she [An underage or adolescent girl.] was preliminarily married with agreement [The father’s agreement.] but definitively married without agreement: there was such a case and the father came and removed her from the bridal chamber [Even an adolescent is emancipated from her father’s power only by definitive marriage, not by the preliminary. Therefore, she cannot contract the definitive marriage on her own.] . Rebbi Jacob bar Aḥa in the name of Rebbi Joshua [This name probably is corrupt.] : He [R. Abba bar Cahana justified himself for quoting R. Joshua ben Levi whom he could not have known by quoting an attached lemma to the effect that the latter ruled differently from what R. Simeon ben Laqish would expound a generation later.] had an indication that Rebbi Joshua ben Levi disagreed with Rebbi Simeon ben Laqish. But this does not disagree. Just as Rebbi Simeon ben Laqish said there [Two paragraphs earlier.] , she is not empowered to marry herself off and let her father lose her earnings, so Rebbi Joshua ben Levi said here, she is not empowered to marry herself off and let her father lose her earnings [Her earnings are her father’s before and her husband’s after definitive marriage. Therefore, it is understandable that the father will want to give his adolescent daughter in preliminary marriage, for which he is paid, but refuse to let her enter definitive marriage before she reaches adulthood and he anyhow loses the right to her earnings.] . Rebbi Abba bar Cahana and Rebbi Jacob bar Idi came in the name of Rebbi Joshua ben Levi: If she was preliminarily married without agreement and was being definitively married without agreement: there was such a case and the father came and annulled her preliminary marriage [Then automatically the definitive marriage cannot proceed.] .

If she [An underage or adolescent girl.] was preliminarily married with agreement [The father’s agreement.] but definitively married without agreement, may she eat heave [If the bride was an Israel but the groom a Cohen. The wife of a Cohen is a member of his family and as such entitled to eat heave (Num. 18:11).] ? Rav said, she does eat; but Samuel said, she may not eat. Rebbi Mana said, Rav’s reason is that if she was preliminarily married with agreement, the permanence of the status quo implies the assumption that he definitively married her with agreement [The father’s agreement to the preliminary marriage implies his acquiescence in a definitive marriage unless he explicitly objects. A definitive marriage without consent or objection by the father is marriage with consent. The treatment of this topic in the Babli, 45b, is not comparable to the argument here since the Babli distinguishes between a marriage in the presence of the father and one contracted when the father was on a far away trip. The Babli notes that Rav in a real case followed Samuel’s opinion, attributed in the Babli to Rav Assi.] . Rebbi Yose ben Rebbi Abun said, Rav’s reason is that by the earlier Mishnah [Only the preliminary marriage is an act of acquisition which brings the bride into the husband’s family; cf. Ketubot 5:3, Note 66. The denial of heave to the bride before the definitive marriage is a later rabbinic institution; Mishnah Ketubot 5:4.] , a preliminarily married daughter of an Israel may eat heave [By biblical standards, definitive marriage is irrelevant for the bride to be able to eat heave.] . What is the difference between them? Her earnings. According to Rebbi Mana, for Rav her earnings belong to her husband [Since the earnings are the husband’s from the moment of definitive marriage which for R. Mana is valid unless vetoed explicitly.] ; according to Rebbi Yose ben Rebbi Abun, for Rav her earnings belong to her father [One would have to say that the father might have the right to the earnings, since R. Yose ben R. Abun does not say that the definitive marriage is invalid, only that its status is irrelevant.] . If she should die, who inherits from her? According to Rebbi Mana, for Rav her husband inherits; according to Rebbi Yose ben Rebbi Abun, for Rav her father inherits if she dies [For the wife’s estate, the same rules apply as for the wife’s earnings.] . Rebbi Yose ben Rebbi Abun stated, for Rav her husband inherits if she dies [The prior speculation about the difference between the two arguments attributed to Rav is false; R. Yose ben R. Abun also will agree that the definitive marriage is valid unless explicitly vetoed by the father. He only stated that the problem of validity of the definitive marriage is irrelevant for the problem of heave.] . If she was preliminarily married without agreement and definitively married without agreement, may she eat heave? Samuel said, she does eat [In the Babli, 45b, this is attributed to Rav Huna.] . Come and see: If she was preliminarily married with agreement and definitively married without agreement, Samuel says that she may not eat; here he says she may eat? Samuel treats her as an orphan [Since everything was done without consulting the father, one may assume that the latter would have indicated his disapproval had he disapproved. His silence therefore is considered as formal approval and the underage girl is emancipated from him; she becomes “an orphan during the father’s lifetime” (cf. Giṭṭin 6:1, Note 20). The same argument is given in the Babli.] .

Mishnah: “Be married to me preliminarily by this date fruit,” etc. The Mishnah [presents the case] that she said, I cannot accept this one, try that one; I cannot accept this one, try that one [In this interpretation, if the man said: Be preliminarily married to me by this, by that one, etc., she would be married if all dates together were worth a peruṭah. If the preliminary marriage must be mentioned every time, it must be that the proposal was rejected in between. Then not any date but specifically the last one must be worth a peruṭah.] . “By this and by that one and by that one. [The triple mention is the version of the Mishnah in the Babli and most independent Mishnah mss.] ” Who is the Tanna of Wawim? Rebbi Jehudah. But for Rebbi Meïr, either this or this or that one [The positions of Rebbis Jehudah and Meïr about the interpretation of conjunctions in multiple statements are discussed in Giṭṭin 9:7, Notes 93–101.] .

Rebbi Jeremiah [Rav Jeremiah, the colleague of Rav.] in the name of Rav: “ ‘Be preliminarily married to me by this tetradrachma after thirty [days].’ Even if she spent it within the thirty [days], she is preliminarily married; also Rebbi Simeon ben Eleazar [Whose opinion will be discussed later in this paragraph.] will agree to this.” What is the difference between this and a loan [If the creditor forgives a loan to his prospective bride, she receives real value. Nevertheless, RR. Meïr and Simeon ben Eleazar hold that there is no marriage if nothing of the original loan is left in the fiancée’s hand. But if the money was given specifically for preliminary marriage, there is no restriction on its use. The Babli agrees, 59a, in the names of both Rav and Samuel. The Babli raises the additional problem, whether the woman may have second thoughts and return the money’s worth before the end of the thirty days if at the start she accepted it.] ? A loan was not given for preliminary marriage [Forgiving the loan, while it might involve considerable value, is only invalidating a sheet of paper which in itself is not worth a peruṭah.] , while this was given from the start for preliminary marriage. But did we not state: “If she was eating right away she is not preliminarily married unless one of them was worth a peruṭah”? Then even if a peruṭah’s worth was not left, she should be preliminarily married [If all dates were given for the preliminary marriage and all were eaten, in what is this different from the tetradrachma which was spent before the marriage entered into force?] ! He explains that as earlier [In the preceding paragraph; the woman explicitly rejected every gift as inadequate.] . If it refers to the earlier statement, did we not state: “If she was eating immediately she is not preliminarily married unless one of them was worth a peruṭah” [Even if the dates were referred to as given together.] ? Rebbi Eleazar said, it [The Mishnah, while formulated anonymously, only represents the opinion of R. Simeon ben Eleazar.] follows Rebbi Simeon ben Eleazar, as it was stated [Halakhah 1:1, Notes 246–249.] : “Be preliminarily married to me by the deposit you hold for me; if she went and found that it was stolen or lost, if there was a peruṭah’s worth left, she is preliminarily married; otherwise, she is not preliminarily married. By the loan you are holding from me, if she went and found that it was stolen or lost, even if there was no peruṭah’s worth left, she is preliminarily married. Rebbi Eleazar ben Rebbi Simeon says in the name of Rebbi Meïr, a loan is like a deposit: If there was a peruṭah’s worth left, she is preliminarily married; otherwise, she is not preliminarily married.” Rebbi Eleazar said, Rebbi Simeon ben Eleazar follows Rebbi Meïr [In asserting that Mishnah 2:1 follows R. Simeon ben Eleazar in Tosephta 3:1, R. Eleazar holds that both can be analyzed in the same way.] . Just as Rebbi Meïr said that anybody who deviates from the orders of the owner is called a robber [Baba meṣi‘a 6:3 (11a 1. 13), Babli 78a/b. If raw wool was given to the dyer to be died red and he died it black, for R. Meïr the dyer acquired the wool as a robber and has to pay the value of the raw wool to his client. R. Jehudah holds that the wool remains the property of the consignor but the dyer is paid only an amount which protects the consignor from loss. (Mishnah Baba qama 9:6)] , so Rebbi Simeon ben Eleazar says here, anybody who deviates from the orders of the owner is called a robber. For he explains it [The Tosephta quoted from 1:2.] to be for a loan when the lender said [It would be natural to read the text as לוֹוֶה “the borrower”. This is the reading of the commentaries who are led to extraordinary intellectual acrobatics to make sense of the text. If לווה is read as a verbal noun derived from pi‘el, parallel to Babylonian מַלְוֶה, everything becomes simple.] , buy wheat for me, but he bought barley for him [R. Simeon ben Eleazar follows R. Meïr only in a very special case. He will agree in general with the anonymous majority that forgiving a loan represents enough monetary value to create a valid marriage. He only holds that if the borrower violated the terms of the loan, there no longer exists a loan but rather lender’s money in the borrower’s hand, i. e., a deposit.] . That is difficult: can one pay for a preliminary marriage with robbed money? Rebbi Yose asked: One understands that a person may invest a peruṭah to gain a denar; would he invest a peruṭah to gain a perutah [This question is asked against R. Meïr’s position in general. It is understandable that for the anonymous majority the woman is married, since the profit she gains from not having to repay the entire loan is certainly worth an extra peruṭah. Therefore, even if we note that a loan was given to be spent and cannot retroactively be given as a marriage present, the additional profit for the woman makes her marriage worthwhile. But for R. Meïr, who holds that only the unspent part of the loan can be a marriage gift, there is no additional profit for the woman and one may ask why R. Meïr does not have a general statement that forgiving a loan can never be a valid marriage present.] ? Some Tannaïm state: One may preliminarily marry with a robbed item; some Tannaïm state: One cannot preliminarily marry with a robbed item. Rebbi Mana said, the one who said that one may preliminarily marry with a robbed item refers to an item which he has a chance to recoup from her hand. The one who said that one cannot preliminarily marry with a robbed item refers to an item which he has no chance to remove from her hand [He refers to the situation described by R. Eleazar, that the loan given to the woman turned into robbed property in her hand. If the prospective groom has documents to prove his case in court, the woman is a robber and he has a good chance to recoup his property in court, he offers her real value and the marriage is valid. But if all he has is a moral claim, that has no monetary value and cannot be used as a marriage present.] . Rebbi Yose ben Rebbi Abun in the name of Rebbi Samuel bar Rav Isaac: the one who said that one may preliminarily marry with a robbed item refers to an item which the owner gave up hope to recover. The one who said that one cannot preliminarily marry with a robbed item refers to an item which the owner did not give up hope to recover [This opinion does not disagree with R. Mana’s but refers to a different situation: The man is a robber and offers his prospective bride an object which he obtained by robbery. He can use the object for a preliminary marriage if and only if it is his both in ownership and in possession. The robber, who is in possession by the act of robbing, becomes owner at the moment the prior owners give up hope of recovery (cf. Giṭṭin 4:4 Note 88, 5:6 Note 169).] .

Rebbi Abbahu in the name of Rebbi Joḥanan: The baraita [The Tosephta quoted from 1:2.] if he said to her, by the deposit you are holding for me. But if he said, by everything which I deposited with you, she is not preliminarily married unless all of it is available [Since he insists that everything shall be her property, she cannot be married if anything does not become her property because it is lost.] . What is the difference between this and a loan? A loan was given to be spent [Babli 47a; Mo‘ed qaṭan 2:3 (81b 1. 27).] ; this was not given to be spent [It is at the disposal of the depositor at any moment.] . But did we not state: “If she was eating right away she is not preliminarily married unless one of them was worth a peruṭah.” Then even if a peruṭah’ s worth was left, she should not be preliminarily married unless all of them were available! He explains that as earlier [In the preceding paragraph; the woman explicitly rejected every gift as inadequate.] . If it refers to the earlier statement, did we not state: “If she was eating immediately she is not preliminarily married unless one of them was worth a peruṭah” [Even if the dates were referred to as given together.] [If the dates were stated as given together, the marriage should be possible if all of them come into the woman's hand together.] ? Rebbi Abun said, were we not of the opinion to say, who is the Tanna of Wawim? Rebbi Jehudah [The positions of Rebbis Jehudah and Meïr about the interpretation of conjunctions in multiple statements are discussed in Giṭṭin 9:7, Notes 93–101.] . Rebbi Joḥanan said: The words of Rebbi Jehudah imply comprehensive one sacrifice, in detail three sacrifices [Cf. Giṭṭin 9:7. If A sues B for wheat, barley, and spelt, and B denies falsely in court that he owes any, he has to atone by one sacrifice. But if he enters three separate denials, he owes three separate sacrifices.] . Just as he says there, comprehensive one sacrifice, in detail three sacrifices, so he says here, comprehensive one preliminary marriage, in detail three preliminary marriages [As explained earlier, the Mishnah is explained to refer to the case that the woman rejects all dates except the last. Then each is given as a separate gift; one cannot require that all of them should have been together.] .

“Be preliminarily married to me by this tetradrachma,” and she said, “throw it into the sea or the river,” she is not married. [A superficially similar text is in the Babli, 8b, and Tosephta, 2:8. The big difference is that in the Babylonian texts the woman took the coin and threw it into the sea whereas in the Yerushalmi the woman never touched the coin. It is a recognized principle that actions speak louder than words; if a marriage gift is offered to a woman and she reacts by throwing it away, she certainly is not married. This has nothing to do with the problem treated in the present paragraph.] “Give it to a poor person,” she is married [From the moment the coin was given as charity.] . In either case nothing came into her hand; in one case you say, she is married; in the other case you say, she is not married! Rebbi Abbahu said in the name of Rebbi Joḥanan: She wants to be married and be seen as benefiting the poor. Rebbi Phineas said, this can be interpreted either following Rebbi Ze‘ira or Rebbi Ila.

[This text is from Demay 6:12, Notes 205–214 (ד). This insert given in the next paragraph shows that this is a genuine quote, not a copy.] As it was stated: “One may say to his worker: Here you have a denar, use it for food, here you have a denar, use it for drink, and not be worried about either the Sabbatical year, tithes, or wine for libations. But if he told him, go and buy yourself a loaf and I shall give you the money, go and buy yourself a reviït of wine and I shall give you the money, he has to worry because of the Sabbatical year, tithes, and wine used for libations.” Rebbi Ze‘ira said, the grocer becomes the agent of the employer to let the worker acquire. [Text missing here, added from Demay.] [Rebbi Hila said, the worker] acquired for the employer from the grocer and then acquires it himself.

Here also, in the opinion of Rebbi Ze‘ira the husband becomes the wife’s agent [Therefore, the coin became the woman’s property in her future husband’s hand; the objection raised at the start is baseless.] to benefit the poor. Rebbi Hila said, the poor person acquired it for the wife from her husband [From the moment the coin was given as charity.] and afterwards acquired it for himself.

[This also is from Demay.] What is the difference between them? If the grocer was deaf-mute. According to Rebbi Ze‘ira, he does not have to worry because a deaf-mute cannot become an agent; according to Rebbi Hila, he does have to worry.

If the worker was deaf-mute. According to Rebbi Hila, he does not have to worry [But then the woman is not married if the coin is given to a deaf-mute beggar.] because a deaf-mute cannot acquire; according to Rebbi Ze‘ira, he does have to worry.

If he grabbed a tetradrachma from her hands, returned it to her, and at the moment of delivery said to her: “You are preliminarily married to me”, then she is preliminarily married. By what was she preliminarily married [Since it was her money, she did not receive anything. In addition, it is questionable whether one may use robbed property as marriage gift.] ? Rebbi Ḥaggai in the name of Rebbi Pedat: She wants to be preliminarily married [In the Babli, 13a, she is only married if she had previously agreed to be married to him.] to him and he would owe her a tetradrachma [She accepts the coin as a marriage gift, not as return of stolen goods. Therefore, the husband now owes her another tetradrachma.] . Rebbi Yose said, if this had been formulated for a vessel, it would be understandable. A tetradrachma can be exchanged [Nobody insists that payment be made with a particular coin. He disputes that the husband owes another coin. The fact that she does not have to go to court to retrieve her coin is worth a peruṭah.] .

[Tosephta 2:7–9; Babli 12b, 13a, 8a.] “ ‘Hold this tetradrachma for me’ and at the moment of delivery he said, ‘lo, you are preliminarily married to me,’ she is preliminarily married [Unless she objects in word or deed. She is married if she remains silent.] . After delivery, if she agrees [But not if she remains silent.] , she is preliminarily married, otherwise she is not preliminarily married. ‘Here is the tetradrachma which I owe you,’ and at the moment of delivery he said, ‘lo, you are preliminarily married to me,’ if she agrees [But not if she remains silent.] , she is preliminarily married, otherwise she is not preliminarily married. If after delivery he said, ‘lo, you are preliminarily married to me,’ she is not preliminarily married even if both parties agree. What can he do? He should take the coin back, deliver it again and say, ‘lo, you are preliminarily married to me.’ ‘Be preliminarily married to me by this mina,’ if it turns out that a denar was missing, she is not preliminarily married [Since there is no mina given to her.] . If one denar was bad [Counterfeit or underweight.] , she is preliminarily married if he replaces it. If he was counting the coins into her hand, she can change her mind any time before he finishes.” Rebbi Eleazar said, she is preliminarily married by the first [coin]; the remainder is a condition [Babli 8a, 47a. It is understood that he asked the woman to be married by a mina, not this mina. Then the first coin establishes the marriage, the remainder is the husband’s debt to be liquidated.] . Rebbi Joḥanan said, only after he completes [the count.] [He seems to hold that the start of delivery is an obligation to finish it at that time. This opinion is not mentioned in the Babli since it is retracted here.] It was said that Rebbi Joḥanan changed his mind about this.

[A different version is in Baba meṣi‘a 4:2 (9c).] A person gave a pledge to another; the other reneged on it [In Baba meṣi‘a: A person made a down payment, the seller then annulled the contract. Here also “reneged” does not mean that the seller claimed not to have received a pledge, but that he refused to honor the contract.] . Rebbi Abba, Rebbi Hila, and Rebbi Jacob bar Aḥa all three say it was a deal about flax seed [In Baba meṣi‘a: “silk”.] and he had given partial payment. The case came before Rebbi Joḥanan [In Baba meṣi‘a: Before R. Ḥiyya bar Joseph and R. Joḥanan. This also is required by the context here.] , who said: Either he delivers the entire contract or one may turn him over to “Him Who exacted retribution. [It was stated in Mishnah 1:5 that possession of movables is obtained only by an act of moving. The buyer does not acquire possession by paying the price for the object bought. It is possible for the seller to take the money but then to renege on the deal, not deliver the merchandise but return the money. The injured buyer cannot force the execution of the contract but Mishnah Baba meṣi‘a 4:2 states that he can go to court and have the court declare that “He Who exacted retribution from the generation of the Flood and of the generation of the Tower of Babylon will in the future exact retribution from him who does not keep his word.”] ” Rebbi Ḥiyya bar Joseph said, either he delivers for the amount of the pledge or ome may turn him over to “Him Who exacted retribution. [R. Joḥanan here decides following R. Eleazar in the previous paragraph: Even a partial payment validates the entire deal. He should hold that the woman who starts to accept partial payment for the promised marriage gift is married. R. Ḥiyya bar Joseph represents the position first ascribed to R. Joḥanan, that financial deals are not completed until the entire debt be paid.] ” Rebbi Ḥiyya bar Joseph agrees with Rebbi Joḥanan in a sale which is not usually split, such as of a cow or a stole [A down payment for a cow requires the delivery of the entire cow.] . Is a woman usually acquired split? Rebbi Ḥaggai and Rebbi Yudan both said, a sale usually may be split, the acquisition of a wife cannot be split [The position of R. Eleazar in the preceding paragraph is universally accepted.] .

MISHNAH: “Be preliminarily married to me by this cup of wine,” but it turned out to be honey; “of honey” but it turned out to be wine; “by this silver denar,” but it turned out to be of gold, “gold denar” but it turned out to be of silver; “on condition that I be poor”, but he turned out to be rich; “rich” but he turned out to be poor; she is not preliminarily married. Rebbi Simeon said, if he tricked her by understatement she is preliminarily married [If he gave a gold denar pretending it was of silver or pretended to be poor when he was rich.] . “On condition that I be a Cohen,” and he turned out to be a Levite; “a Levite” and he turned out to be a Cohen [A Cohen has many more rights than a Levite but a Cohen’s wife is subject to many more restrictions than a Levite’s.] ; “a Gibeonite” and he turned out to be a bastard, “a bastard” and he turned out to be a Gibeonite [For Gibeonites, cf. Chapter 4, Notes 48ff.; Yebamot 2:4, Note 72. Both Gibeonites and bastards (children of adulterous or incestual unions) are precluded from marrying in the congregation.] ; “a villager [In rabbinic Hebrew, any unwalled place is called עִיר.] ” and he turned out to be from a walled city; “from a walled city” and he turned out to be from a village; “on condition that my house be close to the public baths” and it turned out to be far, “far” and it turned out to be close; “on condition that I have a grown-up daughter or slave-girl [She can do the household chores. In some Mishnah mss. one reads גַדֶּלֶת, “hairdresser.”] ” and it turned out that he had none, “on condition that I have not” and it turned out that he did have; “on condition that I have children” and it turned out that he had none, “on condition that I not have children” and it turned out that he did have [If the husband already has children, the second wife is not in danger of a levirate marriage. But the existence of children from a prior marriage may cause trouble.] . Il all these cases she is not preliminarily married even if she says, I had the intention to be preliminarily married to him regardless. The same holds if she misinformed him.

HALAKHAH: “Be preliminarily married to me by this cup of wine,” etc. If this cup and its contents together have the value of a peruṭah, she is preliminarily married; otherwise she is not preliminarily married. “Acquire it and its contents,” if its contents are worth a peruṭah, she is preliminarily married; otherwise she is not preliminarily married; she acquired only its contents [This text seems to be elliptic. It probably should be understood following the text of Tosephta 2:3: The Babli, 48b, notes that every statement has to interpreted in context. If the cup was filled with water, it is understood that the cup was given. If wine, only the contents are intended. If any fluid used as spice, not intended to be used immediately, both cup and contents are given.] .

“Rebbi Simeon said, if he tricked her by understatement she is preliminarily married.” Rebbi Joḥanan said, Rebbi Simeon agrees that she is not preliminarily married if he tricked her by misstating his personal status [In the Babli, 49a, and the Tosephta, 2:5, this is a tannaïtic statement.] . Rebbi Yose said, the Mishnah says this: “ ‘On condition that I be a Cohen,’ and he turned out to be a Levite. [R. Simeon disagrees only in Mishnah 2, about monetary affairs, not in Mishnah 3, in matters of personal status.] ”

One understands “Cohen and he turns out to be a Levite. [If he is less than he represented himself to be, there is no reason to validate the marriage.] ” “Levite and he turns out to be a Cohen [Why can we not assume that normally a woman will be glad to get a husband of higher social standing than he represented himself to be.] ”? She may say, I do not want one who is haughty towards me [In the Babli, 49a, this argument is attributed to Ulla.] . One understands “from a walled city” and he turned out to be a villager; “from a village” and he turned out to be from a walled city? She may say, I want to be in a quiet place. “On condition that my house be close to the public baths” and it turned out to be far. One understands “close and it turned out to be far.” “Far and it turned out to be close”? She can say, I want to take a walk [This translation is pure speculation. It does not seem that this טרפס is identical to טפס as asserted by the dictionaries and commentators. In Arabic, طر فس means “look through almost closed eyelids; put on many garments; be dark (night)”. Perhaps cf. ظر ف “to be beautiful”.] going and returning. “On condition that I have a daughter or slave-girl hairdresser” and it turned out that he had none, that one understands. “On condition that I have” and it turned out that he did not have? Think of it, if he had one at the end of the world [What difference would it make to the woman?] ! Rebbi Abba bar Mamal said, so is the Mishnah: “A daughter to dress your hair, and a slave-girl to serve you. [The Babli, 49a, notes that while this looks like a monetary stipulation, it is one of personal service and R. Simeon is correct in not objecting.] ”

MISHNAH: Somebody said to his agent: “Go and marry me preliminarily to woman X at place Y”; if he went and married him preliminarily at another place, she is not preliminarily married. “She is at place Y;” if he married him preliminarily at another place, she is preliminarily married [The geographical information is not part of the instruction of agency but an indication where the agent may discharge his commission.] .

HALAKHAH: “Somebody said to his agent: “Go and marry me preliminarily to woman X,” etc. The Mishnah does not follow Rebbi Eleazar [Both paragraphs parallel Giṭṭin6:4, Notes 83–84. The statement of the Tanna R. Eleazar is in Mishnah Giṭṭin6:5.] . But following Rebbi Eleazar she is preliminarily married unless [the husband] tells [the agent]: Do not preliminarily marry me to her except at place X [This also is from Demay.] and he went and executed the preliminary marriage at another place.

“She is preliminarily married,” Rebbi Eleazar agrees that he only indicates a place; the rabbis agree that he only indicates a place [The Babli agrees, 59a.] .

MISHNAH: If somebody performed preliminary marriage with a woman on condition that she had no obligation of vows on her and it turns out that she had vows to fulfill, she is not preliminarily married. If he married her definitively without inquiry and she had vows to fulfill, she should leave without ketubah. For all defects which disqualify a priest disqualify a woman [This Mishnah is severely truncated. It is identical to Mishnah Ketubot 7:8 (Notes 101–105). The missing part, which explains the last sentence, reads: “If somebody performed preliminary marriage with a woman on condition that she had no bodily defects and it turned out that she did have bodily defects, she is not preliminarily married. If he married her definitively without inquiry and she had bodily defects, she should leave without ketubah.” The following Halakhah is from Ketubot 7:9, Notes 110–143. The minor differences in readings are noted there.] .

HALAKHAH: “If somebody performed preliminary marriage with a woman etc. We have stated defects. Which vows? Rebbi Joḥanan in the name of Rebbi Simeon ben Yoṣadaq: If she vowed not to eat meat, or not to drink wine, or not to wear dyed garments. Rebbi Ze‘ira said, the fine linen garments which come from Bet She‘an have the status of dyed garments. Rebbi Yose said, the Mishnah deals with the case that he said to her, “on condition that you have no obligation of vows on you.” But if he said to her, “on condition that you have no vow on you,” then even if she made a vow not to eat carob fruit it is a vow.

“If she went to an Elder and he dissolved her vow, she is preliminarily married. To a doctor and he healed her, she is not preliminarily married.” What is the difference between the Elder and the doctor? The Elder uproots the vow from its start; the doctor heals only for the future. Some Tannaïm state: Even if she went to an Elder and he dissolved her vow, she is not preliminarily married. The baraita follows Rebbi Eleazar, as we have stated there: “Rebbi Eleazar said, it would have been logical about a vow which has to be investigated by a Sage, because the Elder uproots the vow from its start. Why did they forbid a vow which has to be investigated by a Sage? Because of a vow which does not have to be investigated by a Sage. Some Tannaïm state: She is allowed to marry without a bill of divorce. Some Tannaïm state: She is forbidden to marry without a bill of divorce. They wanted to say that he who says, she is allowed to marry without a bill of divorce is Rebbi Eleazar, and he who says, she is forbidden to marry without a bill of divorce are the rabbis. Everything follows the rabbis. He who says, she is forbidden to marry without a bill of divorce, the rabbis. He who says, she is allowed to marry without a bill of divorce: Since she knows that if she went to an Elder, he would dissolve her vow, since she does not go therefore she can be married without a bill of divorce. What is the reason of him who says, she is forbidden to marry without a bill of divorce, that she should not go to an Elder who would dissolve her vow, then the preliminary marriage would become retroactively valid for her and it would turn out that her children became bastards. Therefore she is forbidden to marry without a bill of divorce.

“If he married her definitively without inquiry”. Rebbi Simeon ben Laqish said, the Mishnah deals with the case that he married her preliminarily conditionally but definitively silently. But if he married her preliminarily silently and definitively silently, she can claim her ketubah. Rebbi Joḥanan said, even if he married her preliminarily silently and definitively silently, she has no ketubah. Rebbi Ḥiyya in the name of Rebbi Joḥanan: But she needs a bill of divorce from him even if he married her preliminarily conditionally but definitively silently. Rebbi Ze‘ira asked before Rebbi Mana: In case he married her preliminarily silently and divorced her after the preliminary marriage, what does Rebbi Simeon ben Laqish say? Let us hear from the following: “If she had bodily defects, as long as she is in her father’s house, the father has to prove.” This implies that if he proved his case, she can claim her ketubah. What do you see to say, if he married her preliminarily silently and divorced her after the preliminary marriage! Where do we hold? Since afterwards [it is stated]: “When was this said? For hidden defects, but he has no claim about visible defects.” If he. made it conditional, could he not also claim for visible ones? But did not the colleagues say before Rebbi Yose: Should we say that the following statement disagrees with Rebbi Simeon ben Laqish? “Once she entered her husband’s domain, the husband has to prove.” This implies that if the husband proved his case, she has no claim to ketubah. But by the statement of Rebbi Simeon ben Laqish, she has a claim to ketubah. Rebbi Cohen in the name of the rabbis of Caesarea: The Mishnah deals with the case that he definitively married her but did not sleep with her; Rebbi Simeon ben Laqish speaks about the case that he definitively married her and slept with her; I am saying that she was acceptable to him since he took her to bed.

“And all defects which disqualify a priest disqualify a woman. They added to them for women mouth odor, sweat odor, and a hairless mole.” Rebbi Ḥamai bar Uqba in the name of Rebbi Yose ben Ḥanina: They taught this about the skin of the face. But did we not state: “When was this said? For hidden defects, but he has no claim about visible defects.” Is this not of the visible defects? Explain it if she hid it under her headgear. It was stated: “A mole with hairs is a defect, whether it be large or small, whether it be on the body or on the face. Without a hair it is a defect on the face but not on the body. When has this been said? If it is small. But if it is large, it is a defect whether it be on the body or on the face. How big is large? Rabban Simeon ben Gamliel says, up to an Italic as.” Rebbi Eleazar bar Ḥanina said, for example such a Gordianic denar: its measure is half a ubiquitous gold piece. Rebbi Radifa, Rebbi Jonah: Rebbi Jeremiah asked: A bald woman with a row of hair going from one ear to the other? They wanted to understand it from the following: “They added to them for women mouth odor, sweat odor, and a hairless mole.” They did not mention baldness. They wanted to conclude that it is not a defect. There came Rebbi Samuel the son of Rebbi Yose ben Rebbi Abun: Rebbi Nasa said, it is a defect. It is listed only if it is ugly for both sexes. But something which is beautiful in one sex but ugly in the other, like a bald pate, even though it is a defect it was not listed. You should know that this is so because a beard is beautiful for a man and a defect for a woman, and we did not state: In addition, for a woman a beard. There are breasts which are beautiful for a woman and a defect for men, and we did not state: In addition, for a man women’s breasts.

MISHNAH: Somebody who preliminarily marries two women with the value of a peruṭah, or one woman with the value of half a peruṭah [Even though it is possible to contract a multiple polygamous marriage with a group of women by giving the marriage gift to one of them who acts as the agent for all of them, the gift must be worth as many peruṭot as there are women to be married.] , is not preliminarily married even if afterwards he sent presents [Worth much more than a peruṭah.] , since he sent them based on the earlier preliminary marriage. The same holds for an underage boy who contracted a preliminary marriage [If he contracts the preliminary marriage when underage and sends presents to the woman after he came of age he is not preliminarily married.] .

HALAKHAH: “If somebody preliminarily marries two women with the value of a peruṭah,” etc. It was stated [Tosephta 4:4; Babli Ketubot 73b.] : “In all these cases, if they had intercourse they acquired [The invalid marriage was validated retroactively by the couple living together.] . Rebbi Simeon [ben] [Reading of the parallel sources. The ms. tradition of the names in the mss. of the Babli is varied and quite uncertain.] Jehudah says in the name of Rebbi Simeon: In all these cases, if they had intercourse they did acquire [In the Babylonian sources (Note 132): Did not acquire. Probably the text here should not be emended.] since his intercourse was predicated on the preceding preliminary marriage. [Since preliminary marriage is a formal act of acquisition, it needs intention of the acquirer. If there is no intention because the acquirer wrongly thought that he already had acquired, there is no acquisition. This is the reasoning behind the Babylonian statements.] ” What did they acquire [Since the argument of R. Simeon is based on generally accepted principles, it is difficult to see what he understands by “acquiring”.] ? Rebbi Ḥiyya in the name of Rebbi Joḥanan: They acquired for restrictions [A single woman can be married to any man not forbidden to her by incest prohibitions. A married woman cannot be married by any other man; if another man gives her a gift for preliminary marriage and she accepts it, these actions have no consequence whatsoever in law. But a woman preliminarily married for restrictions is not married in this sense. As explained later in the Halakhah, if another man performs preliminary marriage with her, his action is potentially valid in law; the woman is forbidden to both men until at least one of them validly divorces her. But for the anonymous Tanna the marriage is unconditionally validated by intercourse.] . Rebbi Ḥiyya in the name of Rebbi Joḥanan: With any condition which refers to a preceding action [If the preliminary marriage was performed unconditionally and then the husband added a condition, that condition is invalid, as stated later. But in marriage law, the condition is considered valid if it causes any trouble.] , she is preliminarily married for restrictions. Rebbi Mana asked before Rebbi Yudan: Who is the Tanna who stated: “Any condition which refers to a preceding action is invalid” [Mishnah Baba meṣi‘a 7:14. In contract law, an action already completed cannot retroactively be made conditional. If someone marrieda woman and after the fact declares that the marriage shall be valid only if she will support him, the marriage is valid but she has no obligation to support her husband.] ? This does not follow Rebbi Simeon [Since (Note 139) he accepts legal consequences of conditions attached after the act.] . Rebbi Yudan in the name of Rebbi Joḥanan: She is preliminarily married for restrictions. How is that: “I am marrying you preliminarily by intercourse on condition that rains should fall. [One has to wonder why this marriage should not be invalidated as an idolatrous act or at least as rainmaking by sympathetic magic.] ” If rain fell, she is preliminarily married, otherwise she is not preliminarily married. Rebbi Ḥiyya in the name of Rebbi Joḥanan: In matters of a preliminary marriage by a loan [Which is invalid for R. Meïr, cf. Note 62. It is decided here that a preliminary marriage for which nothing of value changes hands is valid only as a restriction (Note 138).] for restrictions, for real estate it was not acquired [If a debt be liquidated by handing over real estate without a contract, the deal is invalid.] , for movables one does not deliver him to “Him Who exacted retribution. [Cf. Chapter 1, Note 106. A contract for sale of movables for which no money changes hands and no action of acquisition is performed is unenforceable. (The entire statement with slight variations is quoted in Sefer Ha‘iṭṭur 1, לח b, Note 6.)] ” If [the buyer] insists on the deal? Let us hear from the following: “You have wine to get from me, when he had no wine. [This refers to Mishnah Baba meṣi‘a 5:1: A person made a contract for later delivery of grain at the then going rate of 25 denars a kur (30 se‘ah). The buyer demanded delivery when the going rate was 30 denars a kur, in order to sell the grain and invest the proceeds in wine. The seller told him that he was ready to take the grain at 30 denars and to give him wine instead. If the seller actually has the wine, this is a valid deal. But if the seller has no wine at that moment, the deal would be an illegal circumvention of the prohibition of interest payments.] ” Therefore, if he had wine he would be obligated to deliver. Rebbi Ḥiyya stated, if he has wine he is obligated to deliver. Rebbi Samuel ben Rav Isaac did (not) [It seems best to delete this word. The emendation of the standard commentaries, to read שלח for שלא does not make sense since שלח אמר “he sent (by letter) said (in person)” is a contradiction in terms.] say there [“There” usually refers to Babylonia.] : You should know that Rebbi Ḥiyya instructed following Rebbi Joḥanan that a preliminary marriage by a loan is for restrictions. Rebbi Ze‘ira resented it. Why? Because they were restrictive in practice and he taught them leniency [They considered preliminary marriage by cancellation of a debt as invalid. R. Samuel ben Rav Isaac gave them a handle to validate the marriage.] ? Rebbi Yose ben Rebbi Abun said, they were lenient in practice [They considered preliminary marriage by cancellation of a debt as valid. R. Samuel ben Rav Isaac instructed them to consider the marriage only probationary; if another man interferred between preliminary and definitive marriages, a bill of divorce would be required from at least one of the men involved.] and he taught them to be restrictive, that if another man came and married her preliminarily, his marriage would hold. Rebbi Yudan ben Rebbi Ḥanan said, if there is a doubt between adultery and no adultery, decide on no adultery [This is the same statement as the preceding. In a case where it is doubtful whether a woman is married and therefore immune to all proposals of marriage by another man, or is not married and open to such proposals, one has to decide that she might be open to proposals and eventually require bills of divorce from all parties involved.] .

MISHNAH: If somebody preliminarily marries a woman and her daughter [Forbidden in Lev. 18:17.] or two sisters [Forbidden in Lev. 18:18.] simultaneously [Forbidden in Lev. 18:18.] , they are not preliminarily married [If the action was not simultaneous, the first marriage would be valid and the second meaningless because impossible.] . It happened to five women, among them two sisters, that a man collected a bag of figs from their own property in the Sabbatical year and said: All of you are preliminarily married to me by this bag, and one of them accepted for all of them. Then the Sages said, the sisters are not preliminarily married [The invalidity of the act for the two sisters has no influence on the validity for the others. Naturally the woman who acts as recipient cannot be one of the sisters.] .

HALAKHAH: “If somebody preliminarily marries a woman and her daughter,” etc. Rebbi Ḥiyya bar Abba said, one understands from this five rules: One understands that five women can be preliminarily married simultaneously. That a woman may receive her own wedding gift and that of her companion. And one may use the spoils of robbery for a preliminary marriage [Since the Mishnah stated that the figs were the property of the women being married. It also states that this happened in a Sabbatical year. Since the produce of a Sabbatical year is ownerless, the Mishnah seems to contradict itself. One will have to explain that the women collected the figs and acquired them by the act of collection. Then the man came and took them away from them. The Mishnah only implies that a woman may be preliminarily married by objects robbed from herself since by accepting marriage she forgives the robber. It does not imply that objects obtained by robbery can be used to marry an uninvolved woman. The Babli, 52a, comes to an opposite conclusion. It assumes that the figs grew in the women’s orchard and were collected as ownerless produce by the man. Then the conclusion is that in any other year the marriage would have been invalid, even involving the owners of the robbed object.] . And one may preliminarily marry using produce acquired by a prohibited act [Sabbatical produce can only be used to be eaten under the rules of the Sabbatical. Using such produce for an act of acquisition is illicit. Nevertheless, the act remains valid.] . And preliminary marriage is impossible in incest situations.

Rebbi Eleazar said, sisters are not preliminarily married but in the case of purification sacrifices it atoned [If a person simultaneously slaughters two purification sacrifices for one transgression, he has fulfilled his obligation. (Mishnah Me‘ilah 1:2 describes this situation: A person dedicated an animal as purification sacrifice. Then this animal was lost, another was dedicated as replacement, and then the first one was found before the second was sacrificed. Each of the animals becomes the replacement of the other.) This statement is nontrivial since as a general rule an animal dedicated as purification sacrifice but whose owner then used another animal for the same purpose can no longer be used for anything.] . How is that? If one slaughtered two purification offerings for one transgression [Simultaneously.] , the altar selects that which is appropriate [Expression of Mishnah Zebaḥim9:1. Since both sacrifices have equal standing, there is no reason to prefer one to the other. Only selected parts of the purification offering are given to the altar; the remainder of the meat has to be eaten by the priest (Lev. 6:17–23).] ; both are forbidden to be eaten [The priests are commanded to eat the meat of the animal which effects the purification. But in this case it is impossible to determine which animal effects the purification.] . If one slaughtered two reparation offerings for one damage, the altar selects that which is appropriate; both are forbidden to be eaten [The rules of reparation sacrifices follow those of purification sacrifices; Lev. 7:7.] . Rebbi Ze‘ira in the name of Rebbi Joḥanan: If the first [This deals with a separate case, that the animals were slaughtered one after the other.] one was slaughtered not for its purpose but the second for its purpose, it did atone since the first, which was not for its purpose, becomes acceptable only through the purpose stated later [Mishnah Zebaḥim 1:1 states that both purification and Passover sacrifices which were slaughtered not for their stated purpose are invalid and cannot be offered to the altar. Normally, a purification offering which is invalidated at the time of slaughter is burned outside the Temple precinct and another sacrifice is required independent of the first. But if the second sacrifice is slaughtered correctly immediately after the first, when its flesh is still in the Temple precinct, then the correct slaughter of the second rehabilitates the first, both sacrifices have their selected parts offered on the altar, and both are forbidden as food to the priests.] . But if the first was slaughtered for its purpose but the second not for its purpose: if the first atoned for what may the second atone? For impurity which occured between the first and the second [This answer makes more sense in Šebuot 1:4 (33b 1.4) where the relative merit of the purification sacrifices on New Year’s day are discussed, one required for the New Moon and one for the holiday. If one sacrifice purifies, what is the use of the second? To atone for impurities which might have occurred in the meantime. In the case discussed here, the second sacrifice is invalid and useless.] . But for Passover sacrifices it did not atone [The Passover sacrifice does not atone. He holds that people who bring a Passover sacrifice which cannot be eaten did not fulfill their duty, Mishnah Pesaḥim7:4.] since the Passover sacrifice is only for the meat to be eaten. This does not follow Rebbi Nathan since Rebbi Nathan said, one fulfills one’s duty by sprinkling [the blood] without eating [Pesahim 7:5 (34b 1. 45), Babli 78b.] .

MISHNAH: If somebody uses his portion either from most holy or simply holy sacrifices for preliminary marriage, she is not preliminarily married [The parts of most holy sacrifices (purification and reparation sacrifices) that are eaten are reserved for male Cohanian in the Temple precint, off limits to women. The Cohen’s part of simple sacrifices (well-being sacrifices) are eaten by the Cohen’s family in purity. Since a woman by preliminary marriage becomes “bought by the Cohen’smoney”, she might eat from these parts. But everybody agrees that sacrificial meat never is the Cohen’s property but that the Cohanim “eat from the Almighty’s table.” Since the Cohen’s part is not his property, it cannot be used in a marriage transaction. Cf. Ma‘aśer Šeni 1:2, Note 65.] . From Second Tithe [Which is eaten by the farmer’s family in Jerusalem; cf. Introduction to Tractate Ma‘aser Šeni. (First Tithe is profane in the Levite’s hand.)] there is no preliminary marriage whether unintentionally [At the moment of the transaction neither man nor woman was aware that the gift was one of Second Tithe.] or intentionally, the words of Rebbi Meïr [He holds that Second Tithe is Heaven’s peroperty in the hand of the farmer.] . Rebbi Jehudah says, intentionally he performed preliminary marriage [In his opinion, Second Tithe is the farmer’s property but is reserved for sanctified use. If the farmer intentionally misused Second Tithe as marriage gift, he desecrated it. The tithe becomes profane and the farmer has to replace it in the statutory amount of 125%.] , unintentionally he did not perform preliminary marriage [If the use was unintentional, the tithe is not desecrated but cannot be used.] . From Temple property, intentionally he performed preliminary marriage [The intentional use of Temple property for private purposes is sacrilege and desecrates the property, which becomes profane.] , unintentionally he did not perform preliminary marriage [In R. Meïr’s opinion, Temple property becomes profane only by intentional profanation.] , the words of Rebbi Meïr. Rebbi Jehudah says, unintentionally he performed preliminary marriage [He extends the rules of Lev. 5:14–16 to all Temple property. The inadvertent use of Temple property constitutes larceny which requires a reparation offering and restitution in the amount of 125%, but the object taken becomes profane and, therefore, can be used as marriage gift.] , intentionally [Since intentional sin cannot be atoned for by sacrifice (Num. 15:30), the rules of Lev. 5:14–16 cannot apply.] he did not perform preliminary marriage.

HALAKHAH: Rebbi Eleazar said, it is everybody’s opinion. Rebbi Joḥanan said, it is in dispute [The statement that the Cohen’s share of simple sacrifices may not be used as a marriage gift.] . There [Mishnah Ma‘aser Šeni 1:2, Notes 43–44. The firstling becomes the Cohen’s property at the rancher’s corral, outside the Temple precinct.] , we have stated: “One may sell a firstling unblemished alive, blemished alive or slaughtered, and one may use it for preliminarily marrying a woman.”

[From here to the end of the paragraph, the text is from Ma‘aser Šeni 1:2, Notes 63–69 (מ). The only major addition is a quote of the Mishnah here.] Rebbi Jehudah bar Pazi in the name of Rebbi Joshua ben Levi: Alive, but not slaughtered. And Rebbi Jehudah bar Pazi said, Rebbi Meïr learns all sacrifices from animal tithe. Just as one may not become betrothed to a woman with animal tithe, so no sacrifices may be used to become betrothed to a woman. Rebbi Jehudah learns all dedicated things from the firstling. Just as one may become betrothed to a woman with a firstling, so all sacrifices may be used to become betrothed to a woman. The opinion of Rebbi Jehudah bar Pazi is inverted. There, he says, alive or slaughtered. But here, he says alive, but not slaughtered. There in his own name, here in the name of Rebbi Joshua ben Levi. Even if you say there and here in his own name; if he becomes betrothed while it is still alive and with what is scheduled to fall to him. After slaughter, what is the reason of Rebbi Joshua ben Levi? (Num. 18:18): “Their meat shall be for you, like the breast of weaving.” And what is the reason of Rebbi Jehudah ben Pazi? “Shall be for you” [The text is misquoted here, correct in Ma‘aser Šeni.] , even after slaughtering. How does Rebbi Joshua ben Levi uphold “shall be for you” [The text is misquoted here, correct in Ma‘aser Šeni.] ? He added another being that it should be eaten during two days and one night.

There [Mishnah Demay 1:3, Notes 112–114.] , we have stated: “Ḥallah of the am haäreẓ, food containing heave, food bought with money of the Second Tithe, and the remainders of flour sacrifices are free from demay.”

[This text is from Demay 1:3, Notes 183–188.] It was stated: “Concerning all of these, if he gave a name to their heave of the tithe or Second Tithe, what he did is done.” Rebbi Eleazar said, with the exception of the remainders of flour sacrifices. Rebbi Jeremiah said, the rest is in dispute. Rebbi Yose asked, what dispute? Where are we standing, if according to Rebbi Meïr, both for Second Tithe and for the remainders of flour sacrifices, he did not do anything. If according to Rebbi Jehudah, what he did is done. Rebbi Mana said, I went to Caesarea and heard Rebbi Ḥizqiah who was sitting there, stating: “If [a priest] preliminarily marries by means of his share in the holiest sacrifices or simple holy sacrifices, she is not married.” Rebbi Eleazar said, that is everybody’s opinion. Rebbi Joḥanan said, it is in dispute. I said to him, from whom did you hear this, and he said, from Rebbi Jeremiah. I said, this explains the matter! Rebbi Jeremiah, who heard that Rebbi Eleazar said, it is everybody’s opinion, he says it is in dispute. Rebbi Yose, who did not hear that, asked which dispute? If according to Rebbi Meïr, both for tithe and for the remainders of flour sacrifices, he did not do anything; if according to Rebbi Jehudah, what he did is done.

When Rebbi Meïr expired, Rebbi Jehudah decided and said, Rebbi Meïr’s students shall not enter here [Babli 52b, Nazir 49b. In the version of the Babli, Symmachos quoted R. Meïr’s Mishnah in R. Jehudah’s school, R. Jehudah objected that most holy sacrifices are distributed at a place reserved to male Cohanim, and R. Yose gave the answer attributed here to R. Jehudah. Since in the preceding paragraph it was established that R. Jehudah admits the possibility of contracting marriage by the Cohen’s part in the sacrifices, the question arises how this is possible for most holy meat. In R. Meïr’s Mishnah, most holy sacrifices could be mentioned together with simple sacrifices since all are forbidden.] . Symmachos squeezed by and entered. He said, “Most holy sacrifices for preliminary marriage,” how could a woman enter the Temple courtyard? He said to him, if he contracts preliminary marriage through an agent [According to the Babli, it also could be a transaction between an unmarried Cohen and the Cohen father of an underage girl. Then not even an agent is needed.] . By what does he contract preliminary marriage? Rebbi Eleazar said, by its body [The meat itself, given from one Cohen to another. Then the question arises whith whom a Cohen possibly could trade most holy meat.] . Rebbi Joḥanan said, by the goodwill created [The goodwill created by a gift of meat might be worth a peruṭah. Goodwill is immaterial, not subject to the restrictions imposed on sancta.] . Or we might say that they do not disagree [To avoid the question raised in Note 187.] . When Rebbi Eleazar said, by its body, [he meant] by the expected goodwill from it. Rebbi Ḥizqiah, Rebbi Bevai in the name of Rebbi Eleazar: One may contract preliminary marriage with a peruṭah from Second Tithe [Second Tithe is agricultural produce. It may be redeemed by money, which transfers the sanctity from the produce to the coin (Deut. 14:25). But only the original produce is called “holy” (Deut. 26:13); the replacement is functionally but not intrinsically holy. Therefore, the money may be given as marriage gift to a woman in Jerusalem who may buy food with it for consumption in purity.] .

“With Second Tithe.” Rebbi Abbahu in the name of Rebbi Joḥanan: He did not intend to transgress the words of the Torah [One has to explain why Second Tithe cannot be used as marriage gift in error according to R. Jehudah. If the groom did not intend to acquire the Second Tithe, he cannot give it away.] . Rebbi Ze‘ira said, in one case he did not intend, in one case she did not intend [The rules for both Temple property and Second Tithe can be explained in the same way. R. Jonah and R. Abin try to understand what R. Ze‘ira meant.] . Rebbi Jonah said, the sanctified he did not intend [Misappropriation of Temple property is characterized as a sin in Lev. 5:15–16. One cannot assume that a man intentionally wants to sin. Therefore, for R. Meïr one has to assume that the marriage is invalid, for R. Jehudah that it is valid. Both will agree that if the groom is interviewed and he insists that he intentionally misused Temple property, then for R. Meïr the marriage is valid, for R. Jehudah it is invalid (Notes 175,177).] , Second Tithe she did not intend [No woman wants to be married by produce which she will be obligated to bring to Jerusalem before it can be used. According to the undisputed opinion of R. Eleazar (Note 190), the Mishnah must speak of produce which is Second Tithe, not of money for which the tithe was redeemed.] . Rebbi Abin said, the sanctified neither he nor she did intend [Nobody wants to start his marriage with a blatant sin.] ; Second tithe he did intend but she did not [No woman wants to be married by produce which she will be obligated to bring to Jerusalem before it can be used. According to the undisputed opinion of R. Eleazar (Note 190), the Mishnah must speak of produce which is Second Tithe, not of money for which the tithe was redeemed.] [In the Babli, 53b, this opinion is attributed to R. Johanan.] .

Rebbi Yose in the name of Rebbi Pedaiah: Intentionally desecrated Temple property becomes profane without redemption [This explains why for R. Meïr a marriage effected by intentional misuse of Temple property is valid.] . But did we not state [Sifra Wayyiqra Parašah 11(8), (Babli Pesaḥim 32b) referring to Lev. 5:15 dealing with larceny committed with sacrifices or Temple property, explicitly restricted to unintentional sin.] : “In error,” that excludes intention? That you say for the additional fifth [He extends the rules of Lev. 5:14–16 to all Temple property. The inadvertent use of Temple property constitutes larceny which requires a reparation offering and restitution in the amount of 125%, but the object taken becomes profane and, therefore, can be used as marriage gift.] and the sacrifice, but profaned it is [Since intentional sin is excluded from expiation by sacrifice, the rules of Lev. 5:14–16 do not apply.] . Rebbi Ḥama bar Uqba in the name of Rebbi Yose ben Ḥanina: The excluded well-being offerings [Well-being offerings, which remain the property of the donor and of which only a small part is given to the altar and the priests, is excluded from the rules of Lev. 5:14–16, as will be explained immediately following.] become profane without redemption. But did we not state [Sifra Wayyiqra Pereq 20(1), referring to Lev. 5:15, speaking of larceny committed “from the Eternal’s sancta”. In rabbinic interpretation, prefix מ or מִן always implies “some, not all”. In this case, the verse is taken to refer to “the Eternal’s sancta”, no part of which is private property. This excludes well-being and other simple sacrifices but includes sacrifices given to the priests since these offerings always remain Heaven’s property (cf. Note 169).] : “From the sancta,” not all sancta? That you say for the additional fifth and the sacrifice, but profaned it is [Since intentional sin is excluded from expiation by sacrifice, the rules of Lev. 5:14–16 do not apply.] .

There [Mishnah Šeqalim 7:4. The present paragraph has a parallel there in Halakhah 7:6 of which, however, it is not a direct copy.] , we have stated: “An animal that is found as from Jerusalem to Migdal-Eder in every direction [If an animal which is a potential sacrifice (cattle, sheep, or goats) is found ownerless near Jerusalem, one may assume that it was dedicated as sacrifice but escaped from its owner. Elevation offerings must be male (Lev. 1:2,10); well-being sacrifices can be of either gender. Most well-being offerings were bought from redemption monies of Second Tithe. The Mishnah precribes that male animals be used for elevation offerings, females for well-being offerings.] .” The elder Rebbi Hoshaia said, this was taught for their monetary value [It is impossible to say that a male animal which was found ownerless should be taken as elevation offering since it might have been dedicated as well-being offering. The animal should be redeemed and the redemption money used for an elevation offering. The same argument is given in the Babli, 55a.] . Rebbi Joḥanan said to him, does one say to a person, go and commit larceny with sacrifices [It is impossible to redeem an unblemished dedicated animal (Lev. 27:10). Any redemption is both sinful and ineffective. R. Hoshiah’s rule seems to be impossible.] ? But in every case [The animal itself should be used for what was its most probable dedication.] they followed the majority of cases: If most are male, they are elevation offerings, if most are female, well-being offerings. But do not well-being offerings come from males and females? What does he do? He redeems them as profane and then turns them into elevation offerings [One follows both R. Hoshaia and R. Joḥanan. The animal is first redeemed and then rededicated; this precludes the sin of freeing a dedicated animal and removes the prior specific dedication. (In the Babli, 55b, R. Joḥanan holds that the redemption of unblemished animals is never possible. He requires that the aninmal be put out to graze until it develops a blemish; then it can be redeemed and the proceeds used for another sacrifice.)] . This is difficult. Can a purification offering [This reading is unacceptable since purification offerings are female (Lev. 4:28,32). One must read: “well-being offering.” This argument is missing in Šeqalim.] become an elevation offering? Rebbi Ḥanina said, it is a stipulation by the court that all redundant animals should be brought as elevation offerings [Therefore, it is part of every dedication of any male animal that, if not needed for its original purpose, it should be used as an elevation offering.] . Rebbi Yose said to Rebbi Jacob bar Ḥama, is that not intentional [misuse]? He said to him, since it is a stipulation by the court, it is not intentional [misuse]. Rebbi Ze‘ira said, as you say there, it is a stipulation by the court that lost animals should be brought as elevation offerings [It is also part of every dedication of any male animal that, if lost and then found by another person, it should become an elevation offering.] .

MISHNAH: If a man performs preliminary marriage using ‘orlah [The fruit of a tree in the first three years after planting whose usufruct is forbidden (Lev. 19:23–24; cf. Introduction to Tractate ‘Orlah.) The entire list consists of items forbidden for usufruct. Since marriage is to the man’s advantage, items forbidden for usufruct cannot be used as marriage gifts.] , or kilaim of a vineyard [While mixtures of seeds are always forbidden (cf. Introduction to Tractate Kilaim), only foreign produce in a vineyard is forbidden for usufruct (Deut. 22:9).] , or an ox sentenced to be stoned [An animal which killed a human (Ex. 21:28,29).] , or a calf whose neck was broken [To atone for an unsolved murder (Deut. 21:1–9); cf. Tractate Soṭah, Chapter 9.] , or the birds of a sufferer from skin disease [The two birds the recovered sufferer from skin disease needs for his purification (Lev. 14:1–7).] , the hair of a nazir [Which must be burned when his sacrifice is cooked, Num. 6:18.] , or the first-born of a she-ass [This is forbidden for usufruct only before it was redeemed by a lamb, or whose neck broken. Ex. 13:11–13. The question of the biblical root of the prohibition of usufruct is raised in the Halakhah.] , or meat cooked in milk [Ex. 23:19, 34:26, Deut. 14:21.] , or profane meat slaughtered in the Temple precinct [Forbidden for usufruct by rabbinic interpretation.] , [the woman] is not preliminarily married. If he sells any of these items [While the sale is sinful, the coins received in payment are not forbidden.] and uses their proceeds for preliminary marriage, she is preliminarily married.

HALAKHAH: “If a man performs preliminary marriage using ‘orlah, or kilaim of a vineyard,” etc. The first-born of a she-ass, Rebbi Eleazar said, may be used to preliminarily marry a woman; Rebbi Joḥanan said, it may not be used to preliminarily marry a woman. Rebbi Immi in the name of Rebbi Eleazar: The first-born of a she-ass may be used to preliminarily marry a woman by an argument de minore ad majus. Since you say that a firstling, whose prohibition cannot be lifted during its lifetime, can be used to preliminarily marry a woman, this one, whose prohibition can be lifted during its lifetime, not so much more [The firstlings of cattle, sheep, or goats (the animals admitted to the altar) must be given to a Cohen. If without blemish, the animal must be sacrificed and eaten by Cohanim. If blemished, it remains the property of the Cohen and may be eaten by any Jew. In both cases, the living animal cannot be used for any work. The only use permitted is as sanctified or profane food; as far as use goes it is forbidden during its lifetime and becomes permitted by slaughter. But the firstling of a she-ass is supposed to be redeemed by the gift of a lamb to a Cohen; by this act, the donkey becomes totally profane and can be put to work immediately.] ? What is the difference between them [What additional differences does one find between Rabbis Eleazar and Joḥanan?] ? If somebody transgressed and redeemed it without the knowledge of its owner [A third party gave a lamb to a Cohen to redeem the firstborn of the she-ass, without knowledge of the latter’s owner.] . Rebbi Eleazar said, it is not redeemed [For R. Eleazar the unredeemed donkey is his owner’s property; it cannot be redeemed without the owner’s knowledge. For R. Joḥanan the unredeemed donkey is not the owner’s money, being forbidden for the latter’s usufruct, but it can be redeemed by a third party.] . Rebbi Joḥanan said, it is redeemed [For R. Eleazar the unredeemed donkey is his owner’s property; it cannot be redeemed without the owner’s knowledge. For R. Joḥanan the unredeemed donkey is not the owner’s money, being forbidden for the latter’s usufruct, but it can be redeemed by a third party.] . A baraita supports Rebbi Eleazar and disagrees with him. A baraita supports Rebbi Eleazar: [Quoted in the Babli, Bekhorot11a. The translation follows the Babli in reading בּוֹ “in it” instead of בן “son” of the ms.] If somebody steals the first-born of another person’s she-ass, he has to pay double restitution [This implies that the unredeemed firstling represents property value, agreeing with R. Eleazar.] . The end [The second half of the baraita quoted, Note 225.] disagrees with him: For even though he has no interest in it now he will later [Since by giving a lamb to the Cohen the owner can establish ownership of the donkey. This agrees with R. Joḥanan’s opinion that the unredeemed firstling donkey is not his owner’s property.] . The Mishnah disagrees with Rebbi Eleazar: One may not use the first-born of a she-ass to preliminarily marry a woman [A paraphrase of Mishnah 9.] . Rebbi Eleazar explained that, after breaking of [the foal’s] neck. For Rebbi Eleazar said, everybody agrees that after its neck was broken it cannot be redeemed [If the owner prefers to break the neck of his firstling donkey rather than give a lamb to a Cohen, R. Eleazar agrees that by this act he has lost his ownership and the carcass is forbidden for any usufruct. The Babli agrees in the name of Babylonian authorities, 57b; Bekhorot 10b.] .

[This is a new baraita; in slightly different formulation it appears in the Babli, Bekhorot 10b–11a.] “One may not use the first-born of a she-ass to preliminarily marry a woman, but Rebbi Simeon permits it.” That disagrees with Rebbi Eleazar in two respects. If during its lifetime, it disagrees following the rabbis; if after breaking the neck, it disagrees following Rebbi Simeon [The baraita does not specify the status of the firstling. It is clear that after redemption the firstling is profane and can be used as a marriage gift. If the baraita speaks of the living unredeemed firstling, it contradicts R. Eleazar’s statement that it can be given as marriage gift. If it refers to the dead firstling, the assertion that R. Simeon permits its use contradicts the statement that everybody prohibits the dead fistling.] . Rebbi Ḥanina in the name of Rebbi Yudan: Explain it that it died [It died a natural death before being redeemed. In this version, R. Simeon will agree that usufruct is forbidden after its neck was broken. This is the Babli’s explanation, loc.cit. Note 230.] . If he broke its neck, it is forbidden for usufruct, but Rebbi Simeon permits it. [A new baraita, Babli Bekhorot10b; Mekhilta dR.Ismael Pisḥa 18 (Horovitz-Rabin p. 71); Mekhilta dR.Simeon ben Ioḥai 13:13 (Epstein-Melamed p. 43). Then the comparison is between breaking the neck of the firstling and of the calf which atones for an unsolved murder. Since the calf has to be buried and its grave is forbidden for all usufruct (Soṭah 9:5, Note 132) it is clear that the carcass itself is forbidden for all usufruct.] “Breaking the neck, breaking the neck.” Since “breaking the neck” mentioned there implies that one has to break its neck, bury it, and it is forbidden for usufruct, so “breaking of the neck” mentioned here implies that one has to break its neck, [bury it,] [Added from all parallel sources and a Genizah fragment.] and it is forbidden for usufruct. Following Rebbi Eleazar it is understandable. He permits during its lifetime; he needs an argument to forbid it after the breaking of the neck. Following Rebbi Joḥanan it is difficult. If it is forbidden during its lifetime, not so much more after breaking of its neck? There came Rebbi Jacob bar Aḥa in the name of Rebbi Joḥanan, Rebbi Ze‘ira in the name of the rabbis: It is needed following the rabbis, lest you say that since the Torah combined the breaking of its neck with its redemption [The prohibition of usufruct of the firstling after its neck was broken is far from clear from the biblical text. Redemption by a lamb or breaking the neck are mentioned in the same verse (Ex. 13:13, 34:20); one might assume that both follow the same rule. The same explanation is given in the Babli, Bekhorot 10b.] , and its redemption makes it profane, so also the breaking of its neck should make it profane [A Genizah fragment adds here: לפם כן צרך מימר עריפה ער' וגו'. ר' יעקב בר אחא בש' רב י.. ... שמעון את חכמין. Therefore it was necessary to say "breaking the neck, breaking the neck." R. Jacob bar Aha in the name of Reb[bi] Y[ohanan].... one understands this for the Sages. The text seems to be redundant; its omission in the Leiden text may be original.] . Do we find anything whose lifting makes profane and which is forbidden for usufruct [This challenges R. Joḥanan’s position that the living unredeemed firstling is forbidden for ususfruct. In comparable cases, untithed produce (ṭevel) or sacrificial animals which developed a blemish, redemption transfers holiness to the redeeming object. But in the case of the donkey both it and the redeeming lamb are totally profane.] ? They objected: There is ṭevel containing the tithe of the poor [In general, ṭevel is produce from which either the required heave or the tithe was not taken; its consumption is sinful. The tithe of the poor is due in the third and sixth years of a Sabbatical cycle, when no Second Tithe is due. Its only claim to biblical status is from Deut. 14:28. Second Tithe, which must be eaten near the Sanctuary, has a status of holiness; produce from which Second Tithe was not taken is recognized as ṭevel(Ma‘aser Šeni 3:5, Notes 61ff.) But the tithe of the poor is totally profane; produce from which this tithe was not taken is referred to as ṭevel only here.] which becomes totally profane by its lifting; but Rebbi Abba, Rav Huna said in the name of Rebbi [It seems that one should read “Rav” instead of “Rebbi”.] : A person eating produce which is ṭevel for the tithe of the poor is guilty of a deadly sin. The rabbis of Caesarea in the name of Rebbi Jeremiah: So the rabbis answer Rebbi Simeon: Do we find anything that needs redemption and is permitted for usufruct [Any dedicated animals which become disqualified as sacrifices are forbidden for all use before being redeemed.] ? He replied to them: There is the first-born human who needs redemption and is permitted for usufruct [A first-born human male whose father did not redeem him by giving five Šeqalim to a Cohen must redeem himself when adult, but nowhere is there any restriction on his earning power before redemption.] .

“If he sells any of these items and uses their proceeds for preliminary marriage, he is married.” Rebbi Ḥaggai in the name of Rebbi Ze‘ira: Because it is not its proceeds. Rebbi Ḥanina said, this means that one cannot marry preliminary with [the proceeds of] robbery [This paragraph is quoted by Rosh (Qiddušin 2, #31) as follows: רִבִּי חַגַּי בְשֵׁם רְבִּי זְעִירי, שֶׁאֵין תוֹפְסִין דְּמֵיהֶן. אָמַר רַבִּי חֲנִינָא, זֹּאת אוֹמֶרֶת שֶׁמְּקַדְּשִׁין בְּגְזֵילָה . "Rebbi Haggai in the name of Rebbi Ze‘iri: Because (the prohibition of usufruct) is not transferred to its proceeds. Rebbi Hanina said, this means that one can marry preliminarly with (the proceeds of) robbery." However, Ran (Novellae Baba meṣi‘a7:1), Rashba (Novellae ad 57b), Ritba (Novellae ad 56b), and Meïri (Bet Habeḥira Qiddušin, ed. A Sopher, p. 261) all read the statement of R. Ḥaggai in the version of the Leiden ms. but that of R. Ḥanina in the version of Rosh. [It seems that most authors did not have access to the Yerushalmi but copied from Ran (R. Nissim Gerondi); they cannot be counted as independent sources.] His arguments and those of the other medieval authorities are discussed in great detail and at length by J. Rosanes (Mishneh Lammelekh, Maimonides Hilkhot Iššut 5:7)]. In the opinion of the Babli (Rashi Ḥulin 4a, ‘Avodah zarah 54a), the prohibition of usufruct is not transferred to the (illegitimate) proceeds except in the cases of idols and Sabbatical produce. However, our ms. sources (including the Constantinople print edition) do not support Ran’s reading of R. Ḥanina; one has to accept the ms. reading as it stands. The statement of R. Ḥaggai is straightforward and was explained by Ran. Since objects forbidden for usufruct are worthless, the money received by the seller was not payment for the object. Since it was necessary to point out that the marriage was valid, it follows that if the money had been given in exchange for an object acquired unlawfully, the marriage would be invalid.] .

MISHNAH: If a man perform preliminary marriage using heaves [Which can be consumed only by a Cohen.] , or tithes [Which either are given to a Levite, or a poor person, or must be eaten in purity in Jerusalem.] , or gifts to priests [From slaughtered profane animals, prescribed in Deut. 18:3.] , or money for purification [It is not clear what this money represents; probably the sums of restitution mentioned in Lev. 5:16, Num. 5:8; cf. 2K. 12:17). In the Babli, most independent Mishnah mss., and in the Halakhah one reads מֵי חַטָּאת “purification water”, the water used in the purification rite of Num. 19.] , or the ashes of purification [Ashes from the burning of the Red Cow, Num. 19. This is very precious material.] , she is married even if he is an Israel [While an Israel and his wife have no use for most of these items, they can sell them to Cohanim. The items have value and can be used as marriage gifts.] .

HALAKHAH: [This text is from Demay 6:3, explained there in Notes 59–76 and Nedarim 11:3, Note 46. It seems that the text in Demay is the original source.] Rebbi Yose ben Rebbi Ḥanina said, a person gives his tithes for the benefit of goodwill. What is the reason of Rebbi Yose ben Rebbi Ḥanina? (Num. 5:10) “Everybody shall be the owner of his holy things.” How does Rebbi Joḥanan explain this? He may give them to whomever he likes.

A Mishnah disagrees with Rebbi Yose ben Rebbi Ḥaninah: “A vow that no Cohanim or Levites should have any advantage from me: they should take against his will.” He explains it about a person who says, I cannot possibly give them any gifts. You should know that this is so, since we have stated: “These Cohanim and Levites should [not] have any advantage from me; let others take.” A baraita disagrees with Rebbi Joḥanan: “One may say, here you have a tetradrachma and give this firstling to my daughter’s son, a Cohen.” He explains, if he already wanted to give it to two Cohanim and that daughter’s son was one of them; then one said, here you have a tetradrachma and give it whole to my daughter’s son, a Cohen.

They asked before Rebbi Zeïra: a Cohen to an Israel, Rebbi forbids. What does Rebbi Yose say? He did not respond. Rebbi Ḥizqiah in the name of Rebbi Aḥa said, so he said to them: In the opinion of Rebbi Yose ben Rebbi Ḥanina, why is a Cohen to an Israel forbidden, not because it looks badly? Also Rebbi Joḥanan holds that from an Israel to an Israel it is forbidden because it looks badly. In addition, because of the following, as it was stated: “Cohanim and Levites who help at the threshing floor have no right either to heave or to tithe, and if the farmer gave, it is desecrated, as it is said (Lev. 22:15): ‘They should not desecrate the sanctified things of the Children of Israel,’ but they do desecrate them! In addition, they said that their heave is no heave, their tithes are no tithes, their dedications are no dedications, and about them the verse says (Micha3:11): ‘Their heads judge for bribes, their priests instruct for hire, etc.’ The Omnipresent brings over them three catastrophes; that is what is written (Micha 3:12): ‘Therefore, because of you Zion will be ploughed over as a field, Jerusalem will be desolate, and the Temple Mount a wooded hill.’

A Mishnah disagrees with Rebbi Joḥanan: “If a man performs preliminary marriage using heaves, or tithes, or gifts to priests, or water for purification, or the ashes of purification, she is married even if he is an Israel.” He explains it with heave he inherited from his maternal grandfather, a Cohen.

Kiddushin2