Commentary for Kiddushin 8:20

"There is an objection from the same area of law, that she can go out with money". This is also the case if it wanted to mention "That she can go out after 6 years or in the Jubilee or with signs of puberty" but it was better for it to object with an objection that was also relevant for a Canaanite slavegirl, since he would have been able to make a ק״ו from a Canaanite slavegirl for whom signs of puberty, six years, and the jubilee are not relevant. But Rabbenu Ya'akov from Orleans raised a problem: Still, why do I need "When he purchases"? Granted that it was not able to derive it from a ק״ו, nevertheless let us derive it from the הקיש that it makes to the Hebrew slavegirl from "'And if he purchases another'—Scripture makes a הקיש to another", as is seen later (Kiddushin 16a), and the Hebrew slavegirl is derived for us later (Kiddushin 14b) that she is acquired with money from "'And redeem'—just as a slavegirl is acquired with money, so too a wife is acquired with money", and it is not possible to respond to a הקיש [so it would have saved us the challenges on the ק״ו]! Solution: If it were all learnt just from the הקיש, I would have thought that 1 perutah wouldn't have been enough until there were 2 perutot, just like we require for a Hebrew slavegirl which is proved later. [Alternative solution:] Rabbenu Netanel resolved: Since we do not know that a Hebrew slavegirl can be acquired with money except from "And redeem" and since she who goes out with money can be acquired with money, we would not have derived from it acquisition of a wife because she can't go out with money like a Hebrew slavegirl.

"Just as the Hebrew slave girl who leaves with money..." [Problem:] But if you say: Let us derive money from sex: just as sex doesn't acquire a Hebrew slave girl but does acquire a wife, money which can acquire a Hebrew slave, isn't it logical that it should be able to acquire a wife!? Solution: All the more so it would be possible to object: The yevamah breaks the ק״ו for she is acquired with sex but not acquired with money.

The argument here is getting more complex. We might have thought that a girl who will never reach na’arut, meaning she will never hit puberty could not be sold. After all, if she goes free at na’arut then maybe if she will never be a na’arah, meaning she is an aylonit who will never hit puberty, then she could not have been sold in the first place. Therefore, we have a verse that says (midrashically) that an aylonit goes out of slavery at bagrut (age 20). This teaches us that she can be sold in the first place.

Above, Mar bar R. Ashi argued that the verse cannot be interpreted to say something that we could have learned through logic, through a kal vehomer argument (“all the more so”). But we earlier said that the Torah does write laws (ones usually drawn out by midrash) that could be learned through a kal vehomer. So why is this a difficulty?
The answer is that we would always prefer to read a verse such that its law could not be learned logically. But we do admit that at times the Torah does write a law that could be learned logically.

This tanna proves that betrothal can be performed through money by the verb in Deuteronomy 24—“takes.” This verb implies the transfer of money, as we see the same verb used in Genesis 23.

The Talmud now discusses whether we could derive betrothal with money from a logical argument. If we can, then we do not need to learn this from a verse.
The first argument is to prove the case from the Hebrew maidservant. A master may acquire a Hebrew maidservant with money by buying her from her father. But intercourse is not a means of acquisition. Therefore, since intercourse is a means of betrothal (acquisition) of a wife, all the more so money should be as well.

The case of the yevamah (the woman awaiting levirate marriage) proves that just because one can be acquired through intercourse does not mean that she can be acquired through money. A woman awaiting levirate marriage is married to her brother-in-law when she has intercourse with him. He does not give her money.

The Talmud now rejects the difficulty raised through the case of the yevamah. A yevamah may not be acquired through money because she also cannot be acquired through a document. But a wife, who can be acquired through a document, should, so it is argued also be able to be acquired through money.
The Talmud now cites the proof from Deuteronomy again.
The problem is that according to the flow of the logic we should not need a verse—we have a logical argument drawn from the Hebrew maidservant from which we can deduce that a woman can be acquired as a wife through money.

The Talmud now rejects the difficulty raised through the case of the yevamah. A yevamah may not be acquired through money because she also cannot be acquired through a document. But a wife, who can be acquired through a document, should, so it is argued also be able to be acquired through money.
The Talmud now cites the proof from Deuteronomy again.
The problem is that according to the flow of the logic we should not need a verse—we have a logical argument drawn from the Hebrew maidservant from which we can deduce that a woman can be acquired as a wife through money.

R. Ashi says that the deduction from the Hebrew maidservant is refutable. A Hebrew maidservant goes out of slavery with money—she buys her freedom. Therefore, she can be acquired with money. In essence, she is property. But a wife cannot buy her way out of marriage—giving money to the husband is not a means through which divorce is enacted. Therefore, we might think that just as she does not leave the marriage through money, so too she does not enter the marriage through money. Therefore, we need a verse to teach that she is acquired through money.

R. Ashi says that the deduction from the Hebrew maidservant is refutable. A Hebrew maidservant goes out of slavery with money—she buys her freedom. Therefore, she can be acquired with money. In essence, she is property. But a wife cannot buy her way out of marriage—giving money to the husband is not a means through which divorce is enacted. Therefore, we might think that just as she does not leave the marriage through money, so too she does not enter the marriage through money. Therefore, we need a verse to teach that she is acquired through money.

The Talmud now asks why we need two verses to teach that kiddushin can be performed through money. Shouldn’t one have been enough?
We need the verse from Exodus, “and she goes out for nothing” because that verse served as a source for the notion that her father receives the money, at least when she is betrothed as a minor or a na’arah.

The verse from Deuteronomy teaches that for betrothal to occur, the man must give the woman money, not the other way around.
I do realize that this is one of the points that the Talmud emphasizes the patriarchal nature of the system. There is no denying that the system of marriage in the time of the Talmud was not egalitarian. However, it is still interesting to note that the Talmud does not seem to think it is inherently wrong for the woman to acquire the man, that men are not “acquirable” or any such broader message. We could read this section as saying that betrothal by the man is simply following the literal reading of the verse. I don’t know if this offers much solace for those bothered by the patriarchy, but I still think it is interesting to think about.

The same verse that proves that a woman can be acquired through money is also invoked to prove that she can be acquired through intercourse.
But again, we could prove that a woman is acquired through intercourse by analogy with the yevamah (the woman awaiting levirate marriage). She is not acquired through money and yet she is acquired through intercourse (levirate marriage is effected by intercourse with the yavam). Thus a wife who is acquired through money should also be acquired through intercourse.

Again, the Hebrew maidservant serves as a difficulty for she can be acquired through money but not through intercourse. The same could be true of a wife.

The Talmud refutes the difficulty. A Hebrew maidservant cannot be acquired through intercourse because she is being acquired as a servant, not as a wife. But a wife could be acquired through intercourse because she is being acquired as a wife.
The Talmud then requotes the verse to prove that she can be acquired through intercourse. But again, we have a difficulty—why do I need a verse to prove something that I can deduce from logic?

The Talmud refutes the difficulty. A Hebrew maidservant cannot be acquired through intercourse because she is being acquired as a servant, not as a wife. But a wife could be acquired through intercourse because she is being acquired as a wife.
The Talmud then requotes the verse to prove that she can be acquired through intercourse. But again, we have a difficulty—why do I need a verse to prove something that I can deduce from logic?

As he did in yesterday’s sugya, R. Ashi explains why the logical argument is not sufficient. The argument that a wife can be betrothed through intercourse had been made by analogy with a yevamah who can also be acquired through intercourse. But the yevamah is already connected to her yavam, the brother-in-law, by virtue of her marriage to her (now dead) husband. She does not really need “betrothal”—all she needs is “marriage.” But a regular woman getting married is not at all connected to her husband. Therefore, we might have thought that intercourse would not be an effective means to betroth her. Thus we do need a Scriptural verse to prove it.

As he did in yesterday’s sugya, R. Ashi explains why the logical argument is not sufficient. The argument that a wife can be betrothed through intercourse had been made by analogy with a yevamah who can also be acquired through intercourse. But the yevamah is already connected to her yavam, the brother-in-law, by virtue of her marriage to her (now dead) husband. She does not really need “betrothal”—all she needs is “marriage.” But a regular woman getting married is not at all connected to her husband. Therefore, we might have thought that intercourse would not be an effective means to betroth her. Thus we do need a Scriptural verse to prove it.

"A case where she gave to him and betrothed him". Rashi's explanation is that she says "Behold you are betrothed (מקודש) to me". Problem: The terminology of betrothal doesn't apply to a man since he is not made forbidden through this to other women. Solution: She says "Behold I am betrothed (מקודשת) to you". And one needs to say about [the line] "She gives to him" that this is not specifically [in a case where] the father receives the kiddushin [money], but only if she wants to say it and she says it [i.e. there would be no monetary transfer in this hypothetical situation when a woman can betroth herself to a man].

"God wrote 'When he purchases', and not 'When a woman purchases a man'". Problem: Since the essence of the verse "When he purchases" comes to say that she can't betroth him, why do we need the גזירה שוה "purchase" "purchase" from the field of Efron!? Without this [ג״ש], we would have learnt from what is written "When he purchases", and not "When a woman purchases a man" [in other words: we would know that the man purchases her with money]! Solution: If it weren't for this ג״ש, I would have assigned the verse of "When he purchases" to be about kiddushin of sex, but about kiddushin of money we would not require "he gives and he says" [i.e. that the man has to do everything]—this is why we need the ג״ש to each that "When he purchases" is about money, and even here [with money] we require "he gives and he says].

"'And he has sex with her'—this teaches that she can be acquired with sex." [Problem:] But if you say: Let [the Talmud] derive it from what is written, "When he takes", which implies also the terminology of sex, just all all of the [instances of] "take" in [the passage of the] Arayot (Leviticus 20): "A man who took his sister", "A wife and his sister you should not take", "A man that takes the wife of his brother"! Solution: It is different in a case where it is not possible to interpret [the word "take"] about a different topic, as we say in the chapter Nos'in al Ha-Anusah (Yevamot 97a) "[The instances of] 'take' written in the Torah without specification: those appropriate [to be understood in the context of forbidden] sex [should be understood in the context of forbidden] sex; those appropriate [to be understood in the context of] taking [through marriage should be understood in the context of] taking [through marriage]." [Problem:] But if you say: Let us derive it from the גזירה שוה that she can be purchased with sex (ביאה), as we say at the beginning of Ha-Ba al Yevamto (Yevamot 55b), "How do we know that a wife can be acquired to her husband through sex (העראה)? The ג״ש of 'take' (כי יקח איש אשה) 'take' (איש אשר יקח את אחותו)"!? Solution: If it didn't write "And he has sex with her" (ובעלה), we would not have learnt the core power of ביאה [that one can be purchased with it] from the"taking" of the Arayot since that is not talking about acquisition at all [since you can't marry someone forbidden to you]. However, to consider העראה as the conclusion of ביאה we can learn well [from the ג״ש from the Arayot—we can learn about the parameters of ביאה but not about its power].

"A Hebrew slave girl can break the ק״ו since she can be acquired through money but can't be acquired through sex". Problem: If the word "And he has sex with her (ובעלה)" were not there, I would have thought that the Hebrew slave girl could also be acquired through sex from a ק״ו, for later (Kiddushin 9b) we exclude from "ובעלה" the Hebrew slave girl, but here [in the flow of the baraita, the Talmud is] questioning the necessity of the word ובעלה [and therefore we would have no way to know that the Hebrew slave girl can't be acquired through sex, and it couldn't break the ק״ו]! Solution: This is what the objection "But isn't it a ק״ו?" meant: The word ובעלה is not required, for it [that a wife can be acquired through sex] comes through a ק״ו, and if [the word came] to exclude the Hebrew slave girl, the verse should have written "And he has sex (ובעל)" since this word itself is not needed [because the כי יקח already tells you it's about sex]. So why do I need the extra ה? The baraita responds [with the line אמה העבריה תוכיח]: If it were only written ובעל, then this itself [the law of a wife being acquired with sex] I could not have derived from a ק״ו since I would have thought that the Hebrew slave girl breaks the ק״ו.

"The yevamah that is caught in a bond [with her levir]". [Problem:] But if you say: Isn't her bond not relevant to the matter of [her being acquired by] money [since it can only be broken by halitzah or sex]!? in which case, if this is true, then I could include it all in the ק״ו and say thus: "A yevamah, who, even though she is caught in a bond, can't be acquired with money but can be acquired with sex, a wife who, even though she is not bound, can be acquired money, surely can be acquired with sex!?" and the fact that [the wife] is not bound will not harm her [law, i.e. it does not affect the fact that she can be acquired with money]! [Another place when Tosafot makes this kind of move in order to support their combination of factors into the ק״ו here:] In a similar vein, one needs to say [this kind of ק״ו in] chapter Keitzad Ha-Regel (Baba Kamma 24b-25a) where [R. Tarfon in the Mishnah] wants to prove that for keren in the damaged party's courtyard one should pay full damages (as opposed to half damages) from a ק״ו [summarised:] Since shen and regel are exempt [from any payment] in the public space but are obligated in full payment in the damaged party's courtyard, keren, which is obligated in half damages in the public space, isn't it logical that it should be obligated in full damages in the damaged party's courtyard?! And Rabbenu Yitzhak questioned there [that leads to this solution of כל זה אכניס בק״ו] that it is possible to break [the ק״ו]: Shen and regel—their damages are common, so you would say [to make their laws relevant to] keren whose damage is not common!? [I.e. the ק״ו is not a good one since shen-regel and keren are of such different frequency]. Rabbenu Yitzhak explained there: About the obligation of full payment in the damaged party's space [for shen and regel] it is not a stringency that one can object about since it would have no effect at all on shen and regel [in the damaged's courtyard] if [shen and regel] were obligated for half payments in the public space like keren [these two halves of the law are independent, what happens for shen and regel in רשות הרבים vs. the courtyard are independent of each other and also independent of what happens for keren]. And [therefore] all of this I can place in the ק״ו: "Shen and regel which, even though their damages are common, are exempt [from any payment] in the public space but are obligated in full damages in the damaged party's space, keren, which, even though its damages are not common, is obligated in half damages in the public space, isn't it logical that it should be obligated in full damages in the damaged party's courtyard!?" [The main point for this Tosafot: This is another example of כל זה אכניס בק״ו, Rabbenu Yitzhak's objection to R. Tarfon's ק״ו can be incorporated into his very same ק״ו; so too here, the question is that it seems Rav Ashi's objection to the baraita's ק״ו can be incorporated into that very same ק״ו! So what was Rav Ashi's objection?] [Solution:] It seemed to Rabbenu Yitzhak that this [Rav Ashi's] objection of "For she is caught in a bond" [is specifically] for sex; i.e. the core of her mitzvah is to uphold the [dead] brother's name [by marrying his living brother], therefore we are lenient on her more than for the wife that she can be acquired through sex [in other words: it is more intuitive that the yevamah can be acquired through sex than the wife since the whole point of the levirate bond is to create offspring, and this is how Rav Ashi understood the force of the potential objection (מעיקרא דדינא פירכא) to the baraita's ק״ו]. [Another solution:] Rabbenu Elazar from Shazna (Rabbenu Eliezer from Sens?) explained "For she is caught in a bond" [means] that this sex only achieves the completion of the original kiddushin [with the dead brother], and because we find that this sex is for [the] completion [of this bond that was created when she was engaged to the dead brother], we do not say that it can acquire to begin with.