Siman 28

The Rambam, of blessed memory, wrote in chapter 5, law 7: One who betroths a woman with stolen property, or with theft, or with property taken by force—if the owners despaired and it is known that he acquired that object through despair, she is betrothed; and if not, she is not betrothed. Thus far his words. Our teacher, the Beit Yosef, transcribed this in section 1, and our teacher, the Rema, wrote regarding this: If he betrothed her with stolen property or the theft of an Egyptian, she is betrothed; if he betrothed her with stolen property after despair alone, she is betrothed rabbinically. Thus far his words. And all of this requires explanation, for from the words of the Rambam it is clear that regarding both stolen property and theft, one must know that they despaired, implying that an unspecified case is not considered despair. Yet we hold that even an unspecified case is considered despair regarding theft, as the Rambam himself wrote in chapter 24 of Kelim, law 7, and as the Tur wrote in Choshen Mishpat siman 368, and such is the opinion of most of the poskim. And some say that regarding Torah betrothal, we do not say that unspecified theft is considered despair of the owners, but specifically when it is known that they despaired, for then it is a complete betrothal, and if she received betrothal from another, she does not require a get; but as long as it is not known that they despaired, she requires a get also from the other. However, nevertheless, she is betrothed rabbinically and requires a get, whether from a thief or a robber. And the wording of the Rambam implies that if not, she is not betrothed at all. Furthermore, regarding stolen property, which by law is not considered despair in an unspecified case, why should we require her to have a get in an unspecified case? Such a novel point the Rambam should have clarified. And some say that what the Rambam wrote, "and if not, she is not betrothed," his intention was when they certainly did not despair, and he is not dealing at all with an unspecified case. And according to this, one must say that what he wrote, "if the owners despaired," its meaning is each one according to its law—a thief even in an unspecified case and a robber when it is known; but his wording does not tolerate this interpretation.

However, according to what I have written with the help of Heaven in Choshen Mishpat siman 361, section 5, that the Rambam contradicts himself in several places regarding this matter and omitted this entire dispute of whether ordinary theft or robbery constitutes ye'ush or not, and we explained his reasoning there: Behold, the reason that theft constitutes ye'ush by default and not robbery is because in theft he does not know who stole them to claim from him, which is not the case in robbery [Rash, Kelim chapter 26, mishnah 8]. According to this, there is no fixed rule in this law, for if people saw the thief as he left his house and hid vessels under his wings, even in the case of a thief he does not despair; and also in the case of a robber, if he robbed him privately, he despairs. It is only regarding a law that concerns others that we hang it on the principle that ordinary theft constitutes ye'ush of the owners and not robbery. But in what depends on the thief and robber himself, such as if he betrothed a woman with his theft or his robbery and the like, he must know how he stole or robbed and whether the owners despaired or not, as I wrote there in section 9, see there. According to this, the Rambam spoke well when he said "if the owners despaired," for he himself knows if they despaired or not according to how the matter of the theft or robbery transpired.

And that which he wrote, that the law of a chamsan is like robbery, it was explained in Choshen Mishpat siman 34 that a chamsan is one who takes the object of his fellow against his will and pays him money. And even though it was explained there that his disqualification is only rabbinic, nevertheless, in the end, as long as this person has not despaired, the object is not his and he cannot betroth with it [Beit Shmuel]. And this fact, that his disqualification is not from the Torah, is because he is not a complete robber since he gives money; and even though he violates "do not covet" as is written there in siman 359, nevertheless, since to people the prohibition of "do not covet" does not seem applicable except when one takes without money [Bava Metzia 5b], therefore he is not disqualified from testimony by the Torah. Furthermore, on the contrary, when he violates "do not covet" it is possible that then it would be betrothal, for one does not violate "do not covet" unless he exerted effort so that the seller would sell to him, as is explained there. And whichever way you look at it—if the seller despaired and agreed in his heart that the sale should be established, behold it is his, and it is much better than robbery after despair and the prohibition has already been transgressed; and if he did not despair and intends to receive it back, he has not yet violated the prohibition of "do not covet" [HaMakneh]. However, in the verse, chamas is actual robbery, as it is written: "For the earth is filled with chamas because of them" (Genesis 6:13), and our sages, of blessed memory, said that the decree of the generation of the flood was sealed because of robbery. And in the Midrash [Chapter 33] it is brought that chamas is less than the value of a perutah and robbery is the value of a perutah, see there.

There is another type of gazel that the Rambam, of blessed memory, did not include—and that is oshek, because this is not applicable to kiddushin, for oshek is when one owes his fellow for wages or for a loan and does not pay him, and the debt is not designated to this specific money or this specific value, for even if he betrothed her with those coins that he borrowed from the lender, a loan is given for expenditure and it is valid kiddushin. And even if he designated a vessel for his oshek, that from this vessel he shall collect the oshek, and he betrothed the woman with it, it lacks meshikhah and the vessel is still his. And if he already delivered the vessel to the victim of oshek and the victim of oshek then returned and deposited the vessel with him—this is absolute gazel and not oshek [see Bava Metzia 48a].

And that which they wrote, "if the owners despaired and it became known that he acquired that object through despair," this phrase "and it became known that he acquired" is a redundancy of language. There is one who wishes to explain that this is its meaning: specifically when there are witnesses at the time of the kiddushin that he despaired, but if at the time of the kiddushin it was not known that he despaired, even though in truth he had already despaired prior to the kiddushin—it is not kiddushin, for it is like despair without knowledge. And this is not the matter of despair without knowledge at all, for despair without knowledge is when it comes into the hand of the finder before despair; rather, it is merely an example. Just as regarding a found object, when it comes into the hand of the finder before the despair, it is of no avail that he despaired afterward, so too regarding kiddushin, the woman and the witnesses must know that the money of kiddushin belongs to the one performing the kiddushin. Therefore, if they know that the kiddushin are stolen and do not know of the despair, it is like one who performs kiddushin without witnesses, and she also did not resolve her mind. Therefore, even though it was revealed afterward that he had already despaired, nevertheless it is not kiddushin, for at the time of the act the kiddushin did not take effect, and by what means would they take effect afterward? And this law only applies if the woman and the witnesses knew they were stolen, but if they did not know at all, this law is not relevant at all. However, according to that which we hold that ordinary theft is considered despair as has been written, it must be said that this only stands regarding robbery, and it requires further study.

And there are those who explain that this is the meaning: for we maintain in Choshen Mishpat siman 353 that ye'ush alone does not effect acquisition unless there was, along with the ye'ush, shinui reshu't or shinui hashem, see there; and what benefit is there that the owners despaired? And some say that even though ye'ush alone does not effect acquisition, here, when they are in the hand of the woman, it constitutes ye'ush and shinui reshu't, and since she acquired them, even he acquires her [the Maggid Mishneh and the Ran and the Rashba, chapter 2, page 52b]. But some say that since ye'ush alone did not effect acquisition—she is not betrothed according to the Torah [the Rosh in Merubba, section 2], for since at the time they are in his hand they are not his, he is giving her nothing, and it is only rabbinically that it is kiddushin to be concerned for the one who maintains that ye'ush effects acquisition rabbinically [ibid.]. And according to this, if the Rambam maintains like this opinion, it is necessary to say that there was something else in addition to the ye'ush, such as a minor shinui hashem or the like, for in such a case he acquired it even while they were in his hand, and this is why he was precise to say "if the owners despaired and it became known that he acquired that object through ye'ush," meaning that besides the ye'ush there was something else in a manner that he acquired it while they were in his hand—then she is betrothed [the Gra and the HaMakneh].

It appears that this is the opinion of our teacher, the Rema, who wrote: if he betrothed her with stolen property after ye'ush alone—she is betrothed midrebanan. Thus far his words. For the author wrote that she is completely betrothed after ye'ush, and there are those who wished to explain his words as referring to her own stolen property after ye'ush where there is no change of domain, but it does not imply this; rather, he certainly holds that the words of the author, which are the words of the Rambam, refer to ye'ush with another factor, and therefore he wrote that with ye'ush alone she is betrothed midrebanan, as has been written ibid. [And that which they said in the Gemara there, "no one concerns himself with this [ruling] of Rabbi Shimon," it must be said according to this that it refers to the matter of kiddushin midrebanan; see there and examine carefully].

And one should not ask according to this opinion: since in this siman it will be explained that in a case of one who sells forbidden items of benefit and betrothes with their proceeds she is betrothed because the money is permitted to the woman, which implies that even though the money is forbidden to him, nevertheless since the money is permitted to the woman—the kiddushin take effect, and so too regarding theft let us say that even though he did not acquire them while they were in his hand, nevertheless since she acquired them she should be betrothed with them; for in truth, this opinion holds that in a case of one who sells forbidden items of benefit, the proceeds are permitted to the seller himself, and this is the opinion of the Rambam, of blessed memory, in the eighth chapter of Ma'akhalot Assurot, law 16 [for the holder of this opinion is the Rosh, and he explicitly holds so in Nedarim 47b, s.v. "dilma," and at the end of the second chapter of Kiddushin, see there].

However, the wording of the Rambam is difficult according to this interpretation, for if so, what is the meaning of the expression "and it became known," and furthermore, why does he conclude that he acquired that object through ye'ush, when he should have mentioned the factor added to the ye'ush? Furthermore, most of the poskim hold like the first opinion, that even when the change of domain is in her hand it is kiddushin, and we say that the kiddushin and the acquisition come as one, just as regarding a get where we say her get and her courtyard come as one in siman 139, see there. Therefore, it appears to me that this is the explanation: for behold, anyone who betrothes a woman with any object is believed when he says this object is his, but regarding a robber, he is certainly not believed to say that the victim of the robbery despaired, for behold, he is disqualified from all testimony. And for this, the Rambam, of blessed memory, informs us that if the owners despaired, meaning that it became known that the robber acquired it through ye'ush—that is to say, it became known to witnesses that the victim of the robbery despaired—but he himself is not believed to say that the victim of the robbery despaired.

And if this one who betroths did not steal it himself but rather purchased it from a thief – he is certainly believed to say that the victim of the theft already despaired, and there was despair and a change of domain in his hand, and he acquired it according to all opinions. However, according to the opinion of most of the poskim as explained in Choshen Mishpat siman 353, we require that the despair occur before the change of domain, and according to the Rambam there is no distinction in this as he wrote there; however, regarding the thief himself, when he betrothed her with the stolen object before despair, even if afterwards while it was in her hand he despaired – it is not betrothal even according to the Rambam who does not require despair before the change of domain, since at the time of the betrothal he gave her something that was not his, and even if he said "be betrothed to me after the despair" – it is not effective, and it is not similar to one who betroths her after thirty days, for behold now it is not his [Beit Shmuel subsection 4]. And see what I wrote in siman 31 section 5.

And also the words of our teacher, the Rema, can be reconciled according to the opinion of most poskim, and that which he wrote that if he betrothed her with stolen property after ye'ush alone she is betrothed midrabbanan, this is found in a case of ye'ush without shinui reshut, such as if he bought it from a gazlan before ye'ush, which is shinui reshut before ye'ush, which is not effective according to most poskim, and so our teacher, the Rema, ruled in Choshen Mishpat siman 356, and he betrothed her with this after they despaired, and therefore even though for her it is ye'ush and afterwards shinui reshut, nevertheless for him the object is never acquired according to what we explained there in siman 353 section 5, that one into whose hand the stolen object comes before ye'ush is similar to a lost object found before ye'ush, and therefore the kiddushin are only midrabbanan, but the plain meaning of his words does not imply this. And for the halacha, one must be concerned for all the stringencies.

And regarding that which our teacher, the Rema, wrote, that if he betrothed her with the robbery or theft of an Egyptian she is betrothed, they challenged him: for do we not maintain in Choshen Mishpat siman 345 that there is no difference between robbery and theft from an Israelite or from one who is not an Israelite? And his words only apply to the expropriation of his loan, and likewise if he did not rob it but rather took it from a robber even before despair—it is a betrothal, for it is similar to the expropriation of his loan since it came into his hand permissibly. However, if the robber himself betrothed her—it is not a complete betrothal, and if another betrothed her, she requires a get from both of them.

However, regarding the core of this law of kiddushin with stolen property, some of the great authorities questioned this based on what the Rambam wrote in the fifth chapter of Laws of Theft, that if one purchased from a notorious thief, even after despair and a change of domain, one must return the value to the owner, for he only acquires the physical object but remains obligated to pay the value. If so, this woman is obligated to return the value of the stolen item, and with what does he betroth her? And it must be said that it deals with a thief who is not notorious. But according to what our teacher, the Beit Yosef, wrote in Choshen Mishpat siman 356, that even with one who is not notorious, one must by law return the value and it is only because of the "market enactment" that one need not return it, if so, she is not betrothed by Torah law according to the one who holds that a rabbinic acquisition does not constitute a Torah kiddushin, as will be explained regarding the law of an acquisition via the presence of the three of them. However, it is not comparable to this, for even according to that opinion, it is only regarding a matter where the core of the acquisition is rabbinic, but here the woman acquired the object by Torah law, and only by Torah law is she obligated to return the value, and the sages exempted her because of the "market enactment." And since the sages already exempted her from paying and it is as if she already paid, the object remains hers even by Torah law, for the victim of the theft has no claim against the woman for the object even by Torah law. And know that according to what we explained with the help of Heaven in Choshen Mishpat siman 353, section 6, regarding the opinion of the Rambam, there is no difficulty at all; see there.

And so too, according to the one who holds there that even in a case of one who purchased from a thief who is not well-known after despair, if he purchased from him at a low price he must compensate the owners up to their value [Sma, subsection 7], there is room to deliberate on this; for behold, a woman is betrothed with a perutah and she would return the remainder to him. However, it is impossible to say so, for if we say that she must return to him the remainder beyond a perutah, the kiddushin would automatically be voided, as she only relied upon the value of the object. And since the kiddushin would be voided, it follows that she does not need to return anything so that the kiddushin will not be voided, for this is like a buyer who purchased according to the value of the object. Furthermore, we have already explained there in section 7 that the main law follows the opinion of those who disagree with this view, see there.

But one must be precise according to the opinion of our teacher, the Beit Yosef, as has been explained, that only because of the market ordinance is it unnecessary to return the money: how is the market ordinance relevant to kiddushin? For she did not expend money. And one cannot say that the market ordinance is relevant in this case as well, for if not so, no woman would want to be betrothed, as she would fear that perhaps the kiddushin object is stolen or robbed in his hand; for if so, let us say that she should be betrothed even before despair, just as they instituted the market ordinance for a buyer before despair. Nevertheless, it seems to me that the market ordinance is relevant even to kiddushin. And it is not only according to the one who holds in Siman 356 that the market ordinance is relevant even to a gift, for certainly it is no worse than a gift; but even according to the one who holds that they only instituted the market ordinance for a sale, kiddushin is also like a sale, for she is like one who sells herself to him for her kiddushin money. And that which they did not institute before despair as they did in a sale is because there would be no benefit before despair; for the market ordinance before despair is that the owners take the object back and pay the buyer the money he gave, and in kiddushin, even if we were to say that the owners would return to her the full value of the object, the kiddushin would still be void, for she was betrothed with the object and not with the money. Therefore, it is impossible to institute the market ordinance in this regard. But conversely, after despair and a change of domain, where the market ordinance is that the buyer does not pay—certainly this ordinance is relevant to kiddushin as well.

There is a further question in this matter: how can it be found that he betroths her with stolen or robbed property? For either way, if the woman does not know that the kiddushin are stolen, the kiddushin should be void because she can say, "I do not wish to be betrothed with stolen or robbed property," just as we find in the Gemara [53b] regarding hekdesh, that the woman can say, "I do not wish for the hekdesh to be desecrated through me." And if she knows they are stolen, she is obligated to return the money [Beit Shmuel there], as is written in Choshen Mishpat siman 356. However, there it is only explained regarding one who purchased before ye'ush and not one who purchases after ye'ush; and before ye'ush he is obligated to return the object itself as is written there. And after ye'ush, perhaps even the money need not be returned. But if we say that according to the law one must return the money even after ye'ush and change of domain, and it is only because of the market ordinance that one need not return it, like the opinion of our teacher, the Beit Yosef, then automatically, when one knows they are stolen, the market ordinance does not apply [ibid.]; and see what I wrote there in siman 361, section 11.

However, in truth, it is found whether she knew of the theft or whether she did not know, for even if she knew of the theft, the opinion of most poskim is that it is a complete acquisition after ye’ush and a change of domain, and so it is proven in the Shas [Bava Kamma 115a]. Also, regarding the opinion of the Rambam, we explained there in siman 353, section 6, that he holds like all the poskim, and only in a case where one purchased from a notorious thief does he hold that they instituted in this matter that he must return the money to the owners for the sake of the ordinance of the owners; see there. And even if she did not know they were stolen—she is betrothed, for even regarding hekdesh we maintain that she cannot say, "it is not pleasing to me that hekdesh be profaned through me," as the Rambam wrote in chapter 8, law 3 [for the halacha follows Rabbi Yehuda in the Mishnah 52b, and so wrote the Makneh and the Avnei Miluim].

And it is simple that if he informed her that the object is stolen and the owners have despaired of recovery, and that she must return the value of the object to the owners while he betrothes her with the benefit of the use of the vessel—since the vessel will remain with her—and she understood and accepted, she is certainly betrothed, for there is the value of a perutah in this benefit. And if such a vessel is very common in a manner that there is not the value of a perutah in the benefit, it appears to me that nevertheless it is a case of doubtful betrothal, for since she accepted it upon herself, perhaps the benefit is worth the value of a perutah to her [see Beit Shmuel]. But when he did not inform her that he is betrothing her with the benefit of the use of the vessel, if by law she was required to return the value to the owners, she is not betrothed even if the benefit is worth a great deal, for women are not learned in the law to know that she must return the value, and it was in her mind that he was betrothing her with the entire object; and if so, when she must return the value, it is a mistaken betrothal [ibid.].

In Choshen Mishpat siman 356, our teacher, the Rema, wrote that in this time, one returns every theft even after despair and a change of possession by the law of the kingdom, see there; and the law of the kingdom is a complete law from the Torah [Avnei Miluim]. According to this, if he betrothed her with a theft or a robbery in a place where there is a law of the kingdom to return it – it is not a betrothal. And that which he did not gloss this law here is because he relied on what he wrote there, and here he is dealing with the essential law. And if the law of the kingdom is to return the value alone and the object remains in her hand – her law is as I wrote in the previous section [the Beit Shmuel in subsection 3 brought up several novel laws, and we have written what appears correct in our eyes, and also the Avnei Miluim inclined away from his words, see there and examine closely].

It appears that even in a place where they return every theft as has been written—this is specifically when the victim of the theft claims it, but when he does not claim it, such as when he is at a distant location or does not wish to litigate with the thief—it is considered total ye'ush, and she is betrothed if it came into her hand after ye'ush [and so wrote the Pitchei Teshuva in the name of Kehillat Yaakov].

The Rambam, of blessed memory, wrote [ibid.]: One who robbed a woman, or stole from her, or seized from her by force, and then betrothed her with her own robbery, theft, or seized object, and said to her, "Behold, you are betrothed to me with this"—if shidduchin preceded between them and she took it and remained silent, behold she is betrothed. And if he never performed shidduchin with her, even though she remained silent when he gave her these items for the purpose of kiddushin, she is not betrothed; but if she said "yes," behold she is betrothed. Thus far his words. For when shidduchin preceded between them and she consented to be betrothed to him, even though they had not reached an agreement on the details, such as the giving of the dowry, nevertheless, now that he betrothes her and she remains silent, we say that she accepted it for the sake of kiddushin and waived her claim to the robbery. And he, since he proceeded to betroth her, we say that he consented to the details as she stated them [Chelkat Mechokek], as was written in siman 29. But without shidduchin, her silence is not proof of waiving the robbery; for why should she cry out? Behold, she received her own property, and what does his speech matter to her? Therefore, she is not betrothed unless she explicitly said "yes." And it is not called shidduchin unless she consented to marry him in the essence of the matter; but if she has not yet consented, even though matchmakers spoke between them, this is nothing. And if they already performed a kinyan between them to marry, it is obvious that you have no greater shidduchin than this, even though according to what was spoken then, the time for kiddushin had not yet arrived. And there is one who is uncertain about this and wishes to say that it is not called shidduchin unless she consented to be betrothed to him specifically now [Be'er Heitev and Pitchei Teshuvah]; but from the wording of the Rambam that we brought, it does not imply so, since he wrote that "did not perform shidduchin" refers to when he never performed shidduchin with her. And likewise, there is one who wishes to say that even in an unspecified case we are concerned for shidduchin, but it does not imply so from the wording of the Rambam and the poskim.

Regarding her own stolen object, there is no difference between before despair and after despair, for specifically regarding the stolen objects of others is she betrothed after despair because there is despair and a change of domain in her hand; however, regarding her own stolen object, even though she despaired, nevertheless there is no change of domain here when the stolen object is in her hand, for it is hers. Nevertheless, rabbinically she is betrothed after despair, for rabbinically despair effects acquisition as I wrote in section 6 [Bach and Chelkat Mechokek, subsection 4]. And according to the words of the Tur in Choshen Mishpat siman 353, it is not a certain acquisition rabbinically but rather a doubt, and here too it is a doubt of rabbinic betrothal [Beit Shmuel, subsection 6]. And some say that if despair effects acquisition rabbinically, it is a Torah betrothal, for since despair effects acquisition rabbinically, it is "the abandonment of the beit din" and she is betrothed by Torah law [Yam Shel Shlomo, Meruba, section 7], and it is only a legal doubt whether despair effects acquisition rabbinically; according to this, it is a doubt of Torah betrothal [ibid.], for the general rule is that a matter where the acquisition is rabbinic is also a betrothal by Torah law, as will be explained in the law of "the presence of the three of them," and some disagree with this as I wrote there. However, some say that a stolen object is not similar to all matters of acquisitions in this regard, for since by Torah law he must return it, he is therefore betrothing her with something that is not his [Beit Shmuel, ibid.]; but in truth it appears that it is similar to all acquisitions, and since "the abandonment of the beit din is abandonment," it is like a Torah acquisition if we say that in all acquisitions that are rabbinic she is betrothed by Torah law [Avnei Miluim, subsection 33], and more will be explained regarding this with the help of Heaven.

Nevertheless, it is possible to say that gezelah is not comparable to all rabbinic acquisitions, for in all other acquisitions the object remains entirely his, which is not the case with gezelah; for even after he has acquired the object through ye'ush, he is nevertheless still obligated to return the value of the object even rabbinically, and according to the Torah he is obligated to return the object itself. Consequently, this is not similar to all other acquisitions [and perhaps this is the intention of the Beit Shmuel]. However, if he acquired the object according to the Torah as well, such as if he acquired the gezelah through a physical change, it is no worse than ordinary gezelah with which one may betroth after ye'ush; and even though he is obligated to return the money – it is no worse than an ordinary debt [Chelkat Mechokek, subsection 5].

It appears more correct to say that regarding her own stolen property, in whatever he stole, whether money or an object, even if he acquired it through a physical change—it is not a kiddushin at all unless he had previously proposed marriage. For she can say, "I took my own, and therefore I remained silent when he betrothed me with this, for I did not concern myself with his words." And we cannot say to her, "Why were you silent? Did he not acquire the object according to the law, and if you did not want to be betrothed to him, you should have protested the kiddushin?" For she can say, "I do not know the law," for do women learn the law? [Gemara 13a]. "And I only know that he robbed me and I received my object or my money back" [see Beit Shmuel subsection 7 and in the HaMakneh]. However, in any case, she should not be released without a get based on this reasoning, as will be explained with the help of Heaven.

And that which has been explained, that where they had negotiated she is betrothed even when she remained silent, and where they had not negotiated she is betrothed when she said "yes" – this is specifically when he betrothed her at the time he gave her the object of her theft. However, if at the time of the giving he said nothing, and after she received it he said to her, "Be betrothed to me with it," even though she said "yes" and they had also negotiated beforehand – nevertheless she is not betrothed, for presumably she received it for the sake of her theft. And even if he did not say to her, "Here is your theft" [so it is implied in the Beit Shmuel, subsection 8], and even if she says that her intention was for the sake of kiddushin when she received it and he also says so – nevertheless it is of no avail, for thus the sages estimated the mind of a woman, that it is not pleasing to her to be betrothed with her own stolen property, unless he said to her at the time of giving, "Behold you are betrothed to me," and they had negotiated beforehand or she said "yes." And similarly, where they had not negotiated and he betrothed her at the time of the giving into her hand, and she did not say "yes," and after her receipt she said "yes" – it is also of no avail; since she did not say it at the time of the giving, she certainly did not consent then [Beit Shmuel].

Our teacher, the Rema, wrote that he must pay her for her stolen property. Thus far his words. This means that in a case where the kiddushin take effect when he betrothed her with her own stolen property, he must pay her for her stolen property, for what he gave her now is under the category of kiddushin and not under the category of returning the stolen property. And even though we explained in section 21 that in a case where he had proposed and she remained silent we say that she forgave him for her stolen property, nevertheless, in a case where he had not proposed and she said "yes," he is obligated to pay her for the stolen property. For specifically when he had proposed beforehand do we say that out of their prior closeness she forgave him, but when he had not proposed, granted that she now consented to be betrothed to him, nevertheless she did not forgive her stolen property [it appears to me]. However, there are some of our teachers who hold that even when he had proposed he is obligated to return her stolen property to her, for in truth, from where do we have the right to say that she forgave? For forgiveness is a weak claim in monetary laws. And so it is implied in the Yerushalmi [chapter 2, halacha 1] that with her own stolen property the kiddushin are valid, and she considers the stolen property as a debt upon him and he is obligated to pay. And he also intended as such, for if not so, the kiddushin would be void if he intended not to return the stolen property and she intended that he return it to her; rather, certainly he also intended to return for her stolen property [Makneh].

And just as the law is regarding her stolen property, so too it is regarding her debt: if he returned to her the debt that he owed her and said to her, "Take this sela that I owe you and behold you are betrothed to me with it," and the statement was while the object was still in his hand and he gave it to her and she took it and remained silent, if there were prior shidduchin between them—behold she is betrothed, and we say that she certainly consented to receive it for kiddushin and she will collect the debt afterwards, for if not so, she would not have remained silent but rather would have said to him, "I am not receiving this for the sake of kiddushin." But if shidduchin did not precede between them—her silence is not proof and she did not concern herself with his words unless she said yes. And if after he placed it in her hand he said to her, "Behold you are betrothed to me with it," even if she said yes and he had proposed shidduchin first—she is not betrothed, for we are witnesses that her receipt was for the sake of her debt and not for the sake of kiddushin since he mentioned the debt at the time of the act; and even if he did not mention the debt, since he also did not mention the kiddushin but rather gave it to her without specification—certainly she received it for the sake of the debt. And if both of them say that their intention was for kiddushin and he gave it to her without specification—it is a matter of doubt if in this too it is similar to stolen property where they are not believed or not; and it appears that she requires a get and it is not similar to stolen property, for regarding stolen property we say that since he is a wicked person she is not believed to say that she received it for kiddushin, which is not the case regarding a debt.

And even though a debt is similar to theft, nevertheless, they are not similar in every matter. For regarding theft, even if he did not mention the stolen object at the time he gave it to her, but rather said to her, "Behold, you are consecrated to me with it" – she is not consecrated if she remained silent unless he had previously proposed, and where he had not proposed – when she said "yes." However, regarding a debt, this law does not apply unless he said to her, "Take this sela that I owe you and be consecrated to me with it," for since he mentioned the debt, we say that she certainly accepted it for her debt in an unspecified case when she did not say "yes" and he had not proposed. But when he did not mention the debt at all, but rather gave her a sela and said to her, "Take this sela" without specification, and before the giving of the sela he said to her, "Be consecrated to me with it," and she accepted it in silence and he had not proposed – nevertheless, she is consecrated even though the time for repayment of the debt had arrived, and she cannot say "I accepted it for the repayment of my debt." And specifically regarding theft it is clear that her unspecified acceptance is for the return of the stolen object, as it is the way of the world to rescue from a thief by any means possible. But regarding a debt, it is common for it to be extended for a long time, and as long as the speech was only for kiddushin, it is certain that she accepted it for kiddushin and was not concerned about the debt that she did not collect now. [And there is proof from page 13a: "But if so, this is difficult, that which he consecrated her with theft etc.," and what is the difficulty? Let him establish it in an unspecified case; rather, it is certain that theft is different. And see Lechem Mishneh].

The Rambam, of blessed memory, wrote: If he returned to her a debt that he owed her and said to her, "Behold, you are betrothed with it before you take it," and she took it and remained silent, if there were shidduchin between them—behold, she is betrothed; and if he did not perform shidduch—she is not betrothed until she says yes. Thus far his words. And it is not clarified in his words that he said to her beforehand "Here is your debt," but rather immediately when he approached her he said to her, "Behold, you are betrothed with it," and according to this, a debt is similar to gezel. However, it can be said that that which he wrote "returned to her a debt" means that he said to her "Here is your debt" and afterwards betrothed her, and several of the commentators understood that this was his intention, as this is implied from the language of the Gemara ibid. However, there are some of our teachers who are uncertain that perhaps when he said "Here is your debt" and then retracted and said "It is not my will to give it to you for the sake of the debt but for kiddushin" and she remained silent and did not perform shidduch—that she is betrothed, since he explicitly retracted his first words. And even though also in saying "Here is your debt and be betrothed to me with it" it is also like an explicit retraction, nevertheless it is not similar, for without an explicit retraction she remained silent and did not concern herself with answering him since he did not speak properly; and if his intention was to also exempt the debt through the kiddushin—it is obvious she did not concern herself with answering him, and why would she do so? For it is well understood that when he performed shidduch it is possible that even in such a case she consented, but when he did not perform shidduch she did not concern herself with his words at all. And if his intention was that the debt would be paid to her afterwards, nevertheless since he did not clarify his words she did not concern herself with answering him; but in an explicit retraction, if she did not consent to be betrothed to him, she should have answered him, "I will not receive it for kiddushin but for my debt." Our teacher, the Rema, wrote regarding this law that some say she is certainly betrothed, and it requires further study for it should only be a case of doubtful kiddushin; and some say that even in a literal retraction it is nothing, for she did not concern herself at all with the words of his retraction. Thus far his words.

There are those who say that when the time for the debt's payment has not arrived and he said to her, "Take your debt and you are hereby betrothed with it," and she remained silent, even though they had not arranged the marriage—she is betrothed. And there are those who say there is no distinction in this, for since he agreed to pay within its time, her receiving it is on account of her debt. And there is one who decides in this—that certainly when he said, "Take this sela for your debt and be betrothed to me with it," it is like after its time; but if he went back and said, "I am not giving it for the sake of your debt but for the sake of kiddushin," and she remained silent, she intended and accepted for the sake of kiddushin, for behold the time has not yet arrived and he does not desire to clear the debt now since he retracted. And so it appears to be the primary view. And the same law applies if he previously said, "I will pay you your debt," and afterwards at the time of the giving he said to her, "Be betrothed to me with it"—it appears to me that it is like a retraction, as I have written according to the Tosefta.

Our teacher, the Rema, wrote in section 3: If he requested of her that she lend him money on a mashkon, and she gave him the money, and when he gave her the mashkon he said to her, "Be betrothed to me with it," and she received it and remained silent—it is a case of doubtful kiddushin. Thus far his words. And even though regarding the repayment of a debt it was explained in section 28 that when he did not mention the debt at all she is betrothed, and all the more so regarding a mashkon; however, regarding a mashkon, even without mentioning the term mashkon, it is as if it were mentioned. Since in one sitting they are speaking that she should lend to him on a mashkon, and she lent to him and he gave her the mashkon and said to her, "Be betrothed to me with it," it is like a debt when he says to her, "Take your debt and be betrothed to me with it" and she remained silent, where she is not betrothed when they had not previously negotiated marriage. And there is a doubt regarding a mashkon whether its law is also like a debt and she is not betrothed, or perhaps it is not comparable to a debt; for regarding a debt, since he owes it to her, she can say, "I am taking [it], and I am taking what is mine," but regarding a mashkon, even though he said to her that she should lend to him on a mashkon, nevertheless she does not yet have anything in the mashkon and it is not acquired to her at all, and at the moment he gave it to her, he gave it to her only for kiddushin, and all the more so if the mashkon is worth more than the debt. And even if we say that regarding a mashkon there is no need for meshikha and money acquires it, nevertheless this is only a mere lien and the body of the mashkon is not hers, for he is able to repay her debt and receive the mashkon back. Therefore, it is a case of doubtful kiddushin in her silence, for perhaps she consented to be betrothed to him with this mashkon. And there is no difference between whether he said to her, "Lend to me on this mashkon" or "a mashkon" without specification, for even with "this mashkon" it is only a lien, and also with "a mashkon" without specification, since it was in one sitting, it is as if he said to her, "Take it for a mashkon and for kiddushin" [as appears to me to be correct, and the difficulty of the Chelkat Mechokek is settled, and also the difficulty of the HaMakneh and the difficulty of the Avnei Miluim, see there and examine closely].

If he said to her, "Take this sela as a deposit," and before he gave it to her he said to her, "Behold, you are betrothed to me with it," and she took it in silence—she is betrothed. For this is not similar to a debt or a pledge, and nothing is due to her that she could say, "I received it for my debt or my pledge," and if she did not want it, why did she remain silent? She should not have received it from him. And she cannot say, "I did not concern myself with his latter words, but rather with the first ones, and I received it as a deposit," for she is not believed to say so, for what does she have in this to receive it as a deposit when he wants it for betrothal? But if after she took it as a deposit he said to her, "Behold, you are betrothed to me with it," if she said "yes," she is betrothed, for even with a deposit that is already in her hand she can be betrothed with it, as will be explained. But if she remained silent, she is not betrothed, for silence after the giving of money is nothing, for the reason she remained silent was because she did not concern herself with answering him, since "I received it as a deposit." And why did she not throw it in his face? Because she feared that since she received it as a deposit and became obligated in its safeguarding, if she were to throw it and he would not receive it and it would be lost, she would be obligated to pay. And even though in truth she would not be obligated when she throws it and says to him, "Behold, yours is before you," nevertheless, women are not experts in the law, and according to logic it appears to them that she would be obligated to pay; therefore, she did not throw it in his face.

That which we have explained regarding a deposit, that silence after the giving of the money is nothing—this is the opinion of the Rambam, the Tur and Shulchan Aruch, and most of the poskim. However, the opinion of the Rif, of blessed memory, is that it is a legal doubt and she requires a get from him, and if he wishes to maintain the marriage, she requires other kiddushin. The reason for the doubt is because she did not throw it down before him, and we do not hang the matter on the fact that she thought she would be obligated to pay. [See Ran, that the Rif refers also to a deposit, and according to the version of the Gemara, Rav Huna the son of Rav Yehoshua only disagreed regarding a mat, and it requires further study].

Regarding that which has been explained, that when he said to her regarding a deposit, "Behold, you are betrothed to me," and she took it in silence, she is betrothed; our teacher, the Rema, wrote that there are those who say this is specifically when she took it in her hand, but if he threw the kiddushin to her, even into her lap—silence in such a case is nothing, since she did not initially consent to be betrothed to him. Thus far his words. For specifically when she took it in her hand is her silence proof of her will, for if not so, who forced her to take it by hand? But in a case where he threw it into her lap, granted that regarding kiddushin with consent it is like receiving by hand, but nevertheless, that her silence should be proof of her will—there is no proof; and why should she not remain silent, and what does she care about what he is doing? And according to this, the law is not specifically so regarding a deposit, but rather in all matters of kiddushin, when he approached a woman and threw an object into her lap before witnesses and said to her, "Behold, you are betrothed to me," and she remained silent, even if she did not take it and throw it away in his presence—it is not kiddushin at all, for we have no proof that she consented since she did not receive it in her hand. And there are those who say that this is specifically when she shook it out immediately from her lap, but if she did not shake it out immediately, it is like silence at the time of the giving of the money and she requires a get [Bach], but in the Tur it does not imply so [Beit Shmuel subsection 12] and so appears the opinion of the great later authorities, and so it is implied in siman 30, see there.

It happened that a certain man betrothed a woman with a myrtle mat, and they said to him, "Behold, it is not worth a perutah," and he said, "Be betrothed to me with the four dinars wrapped inside it." When she took the mat, she did not know about the dinars, and when he said, "Be betrothed to me with the dinars," she did not cast the mat from her hand, nor did she say anything and remained silent. Our sages, of blessed memory, said ibid. that this too is a silence after the giving of money and it is not kiddushin at all; for since at the time of her receiving it the kiddushin did not take effect, they do not take effect afterward based on her silence unless she said "yes." And why did she not cast them to the ground if she did not desire to be betrothed? Because she was afraid lest the money be lost and she would be required to pay. And even though in truth the law is not so, nevertheless a woman is not expert in the law and she believes so, and therefore she did not cast them ibid., but not because she consented. Nevertheless, there is one in the Gemara who was concerned for the kiddushin for this reason, that she did not cast them to the ground, for certainly even a woman would not err in this to imagine that she would be liable to pay, and therefore her silence is possible evidence of her desire and it is as if she said "yes." The Rif ruled accordingly, that she requires a get, and if he wishes to maintain her, she requires other kiddushin, as I wrote in section 33. However, the Rambam ruled that for this reason she does not require a get, because in the Gemara the primary law appears so; however, he requires a get for another reason—for the reason that perhaps the mat is worth a perutah in another place, as I wrote in siman 31. The practical difference is that if it is something that does not endure, such as a food item that spoils, she is not betrothed. Many of the poskim incline toward the opinion of the Rambam, and on the contrary, they disagreed regarding his concern for kiddushin that perhaps it is worth a perutah in another place, for behold, he did not intend at all to betroth her with the mat but rather with the dinars (Rashba and Ran). The Tur and the Shulchan Aruch ruled like the Rif, but regarding a deposit they did not rule like the Rif for the reason we explained in section 32; therefore, if she knew that she would not be liable for their responsibility, even in a deposit it would be a case of doubtful kiddushin (see Beit Shmuel, subsection 14).

Some say that in the case that was explained, when they told him that it is not worth a perutah and he said "be betrothed to me with the dinars within it," the same law applies if he did not say the language "be betrothed to me with the dinars within it" but rather said plainly "behold, there are dinars within it" – she is also betrothed out of doubt, and so our teacher, the Rema, wrote plainly in section 4. And there are those who disagree with this, for it is well and good when he said the language "be betrothed to me with the dinars within it," he betrothes her now and there is a doubt regarding her silence as has been written, but when he did not say the language of kiddushin now, what doubt is there? For the first language of the kiddushin is void since she did not know there were dinars within it, and with what shall she be betrothed now? Furthermore, some say that when he says "be betrothed with the dinars" he retracted from his desire to betroth her with the mat [the Rosh], and it is obvious that when he did not say a new language of kiddushin it is nothing [Beit Shmuel ibid.], and even if we say that his intention from the beginning was also to betroth her with the dinars [the Ran], nevertheless, previously his speech was in error since she and the witnesses did not know of the dinars, and with what shall she be betrothed now if he did not say the language of kiddushin [the Taz]. And it appears like the opinion of our teacher, the Rema, that since it was all in the same standing, it is obvious that it is no worse than one who spoke with her regarding matters of kiddushin, and therefore even if we say that he retracted from his words, since he said now "behold, there are dinars within it," it is like one who speaks with her regarding matters of kiddushin and gave to her plainly, which is kiddushin. Therefore, since there is in her silence a doubt of admission – it is certainly a doubt of kiddushin and therefore she requires a get [see Ba'er Heitev in the name of Knesset HaGedolah, subsection 19] [and from Mahari-v and Tosafot Rid it implies like the Taz, see Avnei Miluim, subsection 12].

A woman who snatched money from another man, and he requested of her that she return them to him and she did not want to, and he said to her, "Behold, you are betrothed to me with them," and she remained silent and kept the money—it is not a betrothal, for it is silence after the giving of money, which is nothing. For just as when it came into her hand as a deposit, silence afterward is not effective, so too when it came into her hand as theft. On the contrary, in the case of theft it is even worse, for with a deposit only silence is not effective but when she says "yes" she is betrothed, whereas with his theft it is possible that even when she says "yes" it is not effective unless she returns the theft to his hand and he betrothes her with it. The reason is that we hold that regarding theft where the owners have not despaired, both are unable to consecrate it: this one because it is not his, and this one because it is not in his possession. If so, just as this man cannot consecrate it, so too he cannot betroth the woman with it. According to this, even with a deposit, if he demanded it from her and she does not wish to return it to him, it becomes like theft and he cannot betroth with it. However, it is possible to say that she is betrothed when both of them consented to the betrothal, for it becomes as if she returned it to him and it becomes like a deposit. And even regarding consecration, if both of them consented to consecrate it, it is consecrated [Beit Shmuel], for since both of them consented, it is like a deposit and is consecrated [see Avnei Miluim, subsection 13].

The general rule of the law regarding silence after the giving of money is that whenever the object came into her hand not for the purpose of kiddushin, but rather as a deposit or if she stole it from him, or even if it came into her hand for the purpose of kiddushin but the kiddushin did not take effect—such as if there was not the value of a perutah in the external part of it as in section 35, or if the external object was not his and after it was in her hand he betrothed her and she remained silent—this is silence after the giving of money. For since she did not say "yes," there is no revelation of her intent that she desires to be betrothed to him, and the fact that she did not throw it in his face was due to her fear that she would be required to pay, as I have written. Therefore, in each case, the law is as I have written in the previous sections. However, if there is a revelation of intent that she consented to the kiddushin—such as if the object was not in her hand but rather in her lap or in the hem of her garments and the like, and when he betrothed her with it she took the object into her hand—she is certainly betrothed. And so too, if he gave an object into her hand without specification and she received it, and after the object was in her hand he betrothed her with it and she remained silent—she is certainly betrothed, for this is not silence after the giving of money, as it did not come into her hand for another explicit purpose but rather without specification; and when he said to her afterward that it is for kiddushin and she remained silent, she reflected and accepted.

Regarding silence after the giving of the money, some say that even if they had previously spoken of marriage it is not effective, and the proof for this is from the incident of the mat; since he betrothed her with the mat, it is obvious that it is no less than if they had previously spoken of marriage, and nevertheless, when he said, "Be betrothed with the dinars that are inside it," the Sages of blessed memory said that it is silence after the giving of the money. The reason is that having previously spoken of marriage only helps when the receiving was initially for the sake of kiddushin, but it is not effective because the money was already hers from a debt or from her stolen property; in such a case we say that since they had previously spoken of marriage, she forgave him. However, when the initial giving was for the sake of a deposit and she did not enter into the matter for the sake of kiddushin, there is no proof from her silence that she consented even if they had previously spoken of marriage, for just as she did not initially receive it for kiddushin, so too her silence was not for the sake of kiddushin. And in the incident of the mat, even though she initially entered into the matter for kiddushin, nevertheless, since in the mat itself there was nothing fit for kiddushin, it is as if they did not enter into the matter for kiddushin at all; it is not similar to a debt or stolen property which contain the required value for kiddushin but where something else hinders it. And some say further that regarding silence after the giving of the money where they had not previously spoken of marriage, even the one who is stringent regarding silence after the giving of the money as I have written, nevertheless, where they had not previously spoken of marriage, there is no reason to be stringent at all, and although there are those who hesitate regarding this—nevertheless, such is the primary ruling.

From what has been explained, we have learned that one may betroth with a deposit that is in the woman's hand; and even though he does not give her anything now, nevertheless, this is as if he gave it to her, for the deposit is in her possession, and when he betroths her with it, the deposit becomes hers, and this is the money of her kiddushin. The same applies when she borrowed an object from him and he betrothed her with it—she is מקודשת. And all this is when she said "yes," for otherwise it would be silence following the giving of money. Furthermore, thus the sages, of blessed memory, said: One who says to a woman, "Be betrothed to me with the deposit of mine that is in your hand," and she went and found that it was stolen or lost, if there remained of it the value of a perutah—she is מקודשת, and if not—she is not מקודשת. And we do not say that she did not consent to be betrothed except with the entire deposit, for certainly if she knew the amount of the deposit we would say so, but when she did not know the amount of the deposit, we say that she consented even to the value of a perutah from it. And some say that even if she knew the amount of the deposit, since he did not say to her "be betrothed to me with the entire deposit," their intention was also for a portion of it; and one should be stringent in practice according to this opinion. Our teachers, the authors of the Shulchan Aruch, wrote without qualification according to the first opinion, but in the Yerushalmi it is explicitly implied like the opinion of the "some say."

And regarding a loan for use, the law is also like a deposit; and even though according to the first opinion it is impossible for kiddushin to take effect with a loan for use when it has diminished, since she knows the amount of the loan, nevertheless, with a loan for use she is betrothed for another reason, for she is obligated to pay. However, there must remain of it the value of a perutah, for if not, since a debt remains upon her, it is like one who betroths with a loan and she is not betrothed. But when the value of a perutah remains, it is like a loan and a perutah, where she is betrothed [Bach and Perishah]. And according to this, also regarding a deposit, if she is liable for its responsibility, even according to the first opinion she is betrothed even when she knew the amount of the deposit. And there are those who disagree on this, for granted that she is obligated to pay, nevertheless she did not intend to be betrothed except with the entire deposit, for the reason that one who betroths with a loan and a perutah is betrothed is because her mind is not on the loan but on the perutah, whereas here her mind is on the entire deposit [Taz and Avnei Miluim]. And regarding a loan for use, it perforce deals with a case where he said, "Be betrothed to me with that which I have in your hand" [Avnei Miluim], for without this, she is indeed not betrothed if it diminished from the amount. [And regarding a deposit, the Rosh and the Tur find a case where she did not know how much it was]. And regarding a deposit, when only a perutah remains and she is betrothed with it as has been written, he is not obligated to complete the remainder for her, for he did not say to her with what amount he is betrothing her [Tur].

A loan is not similar to a deposit, for if he had a loan with her, even if its time for collection had arrived and even if it were a loan with a document, and he said to her, "Behold, you are betrothed to me with the loan that I have with you" – she is not betrothed. For while a deposit is in the domain of the depositor wherever it may be, a loan is given for expenditure; and even if the loan is still intact in her hand and she has not made use of it, nevertheless, it is hers and not his, rather he only has a personal lien and a lien on property against her that she should pay him, but the money is not his, and with what is he betrothing her? The Rambam, of blessed memory, wrote: because a loan is given for expenditure and there is nothing here currently existing to benefit from from now on, as she has already spent that dinar and its benefit has passed. Thus far his words. His intention is not that if the dinar is intact she is betrothed, but rather this is the explanation: since it was given for expenditure, it is as if she spent the dinar even though it is still intact, and the dinar that she has is not his but hers.

If she received money from him for an iska, which is half loan and half deposit, if he betrothes her with the deposit portion – she is betrothed. And even if he betrothes her with the iska without specification, if there are only two perutot within it – she is betrothed, for this is like one who betrothes with a loan and a perutah where her intent is upon the perutah; but if he betrothes her with the loan portion – she is not betrothed [Teshuvot Maimoni Mishpatim siman 12]. And there is one who says that even with the loan portion she is betrothed, for the reason that one who betrothes with a loan is not betrothed is because it was given for expenditure and he is permitted to spend it, and he is not obligated to maintain it in the iska so that it be available whenever he claims it [Rashi 47a], but an iska where the recipient is forbidden from spending it on another business but only on the iska he received, it is like a deposit [Avnei Miluim]. And the first opinion appears primary, for nevertheless the half that is a loan is not in his domain but in her domain, and he has nothing upon it but a lien, and with what is he betrothing her now? And that which is forbidden to spend for another matter, this is like a condition in the loan, but in any case they are not in his domain. For behold, even with a standard loan it is forbidden for the borrower to spend the loan on trivial matters, but rather for business, as written in Choshen Mishpat siman 97, except that he is permitted to spend it on any business he desires, while in an iska he is not permitted to spend it except on the iska they discussed; nevertheless, they are one and the same [it appears to me].

Even if he had a document against her and he returned the document to her and the document is worth a perutah—she is not betrothed, for he betrothed her with the loan and not with the document; and even if he said, "Be betrothed to me with this promissory note," certainly his intent was not for the paper but for what is written in it. However, there are those who are stringent in this, and even if he did not say, "Be betrothed to me with the promissory note," if it is worth a perutah and he returned the promissory note to her, it is a case of uncertain kiddushin. For behold, in the Gemara ibid. there is an interpretation in such a case that we appraise the paper, and if it is worth a perutah she is betrothed; and even though in the conclusion it does not stand so, that is for another reason, but nevertheless for the law perhaps it is so, that his intent is also for the paper. And even though there, in any event, he mentioned the document and said "Be betrothed to me with this document," whereas when he did not mention the document at all there is no proof from there, nevertheless perhaps even in an unspecified case when he said "Be betrothed to me with the loan that I have with you" and returned the document to her, his intention was also for the document, for in the term "loan" the document is also included. And it is not similar to any other two things, for the document is like a part of the loan, as behold, when one settles his debt he returns his document. And we have already explained in Choshen Mishpat siman 241 section 3 that when one waives a debt to him, even when there is a document in his hand, the document does not prevent the waiver; and we explained there that it appears that when one waives the debt he is obligated to return the document as well, which shows that the document is not like a different object. And in the Yerushalmi in the first chapter of Gittin there is one who holds that the waiver of a document constitutes a waiver of the debt, and even the one who disagrees there regarding this, it is because the essence of the debt is called by the name of the debt and not by the document, but he admits that in the debt the document is also included.

And that which we wrote according to the first opinion, that even if he said "be betrothed to me with a promissory note" his intent was not for the paper, so it appears from the words of the Rambam. However, the Tur, who also holds like the first opinion, nevertheless wrote that if he said "be betrothed to me with a promissory note" and gave it to her—we appraise the paper; if it is worth a perutah, she is betrothed, and if not, she is in a state of doubtful betrothal. Our teacher, the Beit Yosef, wrote similarly in section 8. And why is she doubtfully betrothed when it is not worth a perutah? Because perhaps it is worth a perutah in another place. And even though one may raise a difficulty against all that has been explained: how can he betroth her with the document, is the document not hers, for the borrower pays the scribe's fee as is written in Choshen Mishpat siman 39? There is one who answered that the document is like a mashkon for the loan, and just as one who betroths with her mashkon she is betrothed, as has been explained, so too with a document. According to this, for the opinion that will be explained—that even without returning the mashkon to her she is betrothed with a loan that has a mashkon upon it—here too she would be betrothed even without returning the document to her. But it is impossible to say so, for it is according to everyone that one who betroths with a loan that has a promissory note upon it is not betrothed, and it is not similar to a mashkon. Furthermore, what is the similarity of a promissory note to a mashkon? For in a mashkon the lender has an acquisition in the body of the mashkon, as will be explained, which is not the case with a promissory note. However, according to what the Rambam wrote regarding the reason for a mashkon—that she is betrothed when he returns the mashkon to her because she benefits from the mashkon from now on and benefit has reached her hand—it is possible to say so regarding a promissory note as well. But for the other poskim who hold that she is betrothed even without the return of the mashkon, it is impossible to compare a promissory note to a mashkon. And even according to the Rambam it is difficult to say so, for regarding a mashkon we would require in any case that the benefit of using the mashkon be worth a perutah, for if not, with what is he betrothing her, since the essence of the mashkon is hers? According to this, we would have to say that the benefit of using the paper is also worth a perutah, and it does not imply so, for they wrote only that the paper itself is worth a perutah, from which it follows that the benefit of its use is not worth a perutah. Therefore, it appears that in truth the poskim are dealing with a case where the lender wrote the promissory note and not she, and by law in such a case, even when she pays him, he does not need to return the promissory note to her but only to tear it, as is written in Choshen Mishpat siman 57; therefore, when he betroths her with it, it is properly a betrothal. And there is one who says that in every promissory note the borrower must transfer the promissory note to the lender, and it turns out that it is his, but it does not imply so from the poskim.

And just as one may not betroth with a loan, so too one may not betroth with wages, such as if he were a worker for her and wages were owed to him for labor he performed for her; and even if the time for the wages to be collected had arrived and he said to her, "Behold, you are betrothed to me with these wage funds" – she is not betrothed. And the reason is that we maintain "wages exist from beginning to end" – for upon every perutah's worth of work he performed, she becomes obligated to pay, and the payment is a loan with her, and with a loan she is not betrothed. And even if we were to say that "wages only exist at the end," nevertheless, here where he has already finished the work, the money is a loan upon her. And even if he said to her, "Be betrothed to me with the wages for the work that I will perform for you," which he is not yet owed by her – nevertheless, she is not betrothed for the reason that "wages exist from beginning to end," and for every perutah's worth he performed, it becomes like a loan with her. And even though we maintain that "wages are not paid until the end," as is written in Choshen Mishpat siman 339, nevertheless, the obligation takes effect for every perutah's worth he performs, but the Torah did not obligate him to pay until the completion of the time.

And even if he is a contract craftsman and not a day laborer—we do not say that a craftsman acquires title through the improvement of the vessel, such that it would be as if the vessel is his and when he betrothes her, he betrothes her with his own property; for we hold that a craftsman does not acquire title through the improvement of the vessel, and the vessel is hers, and she owes him the money for the craftsmanship, which is a loan. And some say she is betrothed, for we hold that a craftsman acquires title through the improvement of the vessel. It has already been explained in Choshen Mishpat siman 306 section 4 that even though the primary ruling is that a craftsman does not acquire title through the improvement of the vessel, as our teachers the authors of the Shulchan Aruch ruled there, nevertheless, regarding the prohibition of a married woman one must be stringent. Therefore, they wrote here in section 15 both opinions. Furthermore, from the Yerushalmi [Bava Kamma chapter 9] it appears that we hold a craftsman acquires title through the improvement of the vessel, and it is a dispute among the authorities. And some say it is a legal doubt [Shach ibid. subsection 3]. And there is one who says that even regarding a day laborer one can say that he acquires title through the improvement of the vessel, but we have already explained there that this does not appear to be so. And know that all of this is when the craftsman performs only the labor, and the wood or the stones or the merchandise belongs to her, but if everything is his and he agreed with her to make her a garment or a vessel from his own materials for such and such a price—it is obvious that it is his, and if he betrothed her with it, it is a complete betrothal.

Our sages, of blessed memory, said [6a]: Even though with a loan she is not betrothed, nevertheless, when he betrothed her with the benefit of a loan, she is betrothed. And what is the benefit of a loan? When he extended the time for her from the loan. Our teachers explained that this is the meaning: For example, if she owed him a loan to pay at a certain time and he now extended the time for her for the future, and this benefit is worth a perutah, for she would have given a perutah to a person who would act on her behalf to gain her more time, or she would have given a perutah to him himself for the extension of time, and with this perutah he betroths her and says to her, "Be betrothed to me with this benefit," for behold, this benefit is worth a perutah. However, there is a prohibition in this of an evasion of ribbit, for it is as if he takes a perutah for the extension, since he betroths her with this. And it is not total ribbit, for in any event he does not take anything from her. And there are some of our teachers who hold that this is total ribbit, for he is like one who takes a perutah from her; and here it deals with a case where she owes another person and the time to pay arrived, and he came and gave the creditor a perutah to gain her time and with this he betroths her, and therefore it is not total ribbit, for the Torah only prohibited ribbit that comes from a borrower to a lender [Tosafot]. And all the more so if he forgave her the entire loan and said to her, "Be betrothed to me with the benefit of this forgiveness" [Rashi].

And one should not wonder: how can the benefit of the loan be superior to the loan itself? For even if he lends her money now and betrothes her with it, she is not betrothed, yet through the benefit of the extension or the forgiveness she would be betrothed? For it is certainly so, that when he betrothes her with the principal of the money, he gives her nothing, as it is already in her possession and is hers. However, when he betrothes her with the benefit of the forgiveness of the loan or with the extension of the time, it is now that he gives her this perutah that this benefit is worth [ibid.], for the benefit of the loan exists in its own right and therefore she is betrothed by it, whereas the loan itself does not exist such that she could be betrothed by it, as we establish that a loan is given for expenditure [the Rif].

But the Rambam, of blessed memory, in chapter 5, this interpretation did not seem correct to him, and he explains: One who betroths with the benefit of a loan, she is betrothed. How so? For example, if he lent her now two hundred zuz and said to her, "Behold, you are betrothed to me with the benefit of the time that I will grant you in this loan, that it shall remain in your hand such and such days and I will not claim it from you until such a time" – she is betrothed, for she has benefit from now to use this loan until the end of the time he established, and it is forbidden to do so because it is like ribbit. Thus far his words. And he holds that as long as he does not give her something now, it is impossible for her to be betrothed by it. And it is not similar to a deposit where she is betrothed without the giving of an object, for a deposit is in his domain wherever it is, and when he betroths her it becomes hers and that is its giving; this is not the case regarding a loan—what benefit is there in the extension of time or in the benefit of forgiveness? Ultimately, he is giving her nothing.

Indeed, even according to his interpretation it can be said thus, for behold, with that which he lends her now she is not betrothed, for it was given to be spent and is not his, and he only betrothes her with the extension of time, and ultimately he gives her nothing in exchange for the kiddushin; and since this is so, even if the loan preceded the kiddushin, what of it, for they are one [Ran]. And it appears that his opinion is thus: that just as if he betrothes her with an object that she will benefit from its use for such and such time, and the use is worth a perutah, she is betrothed, so too with the money that is ready now to be lent to her, and he permits her to use the money for such and such time beyond an ordinary loan, this benefit is not in the category of a loan but rather in the category of the use of an object. And this is specifically when the money is ready now before us; but if he had already lent it to her, ultimately the benefit is on a loan and is no better than the loan itself [It appears to me].

And there are some of the Rishonim who explained, for example, if the time for the lender to be repaid arrived and her money was prepared in her hand to be repaid, and she would have immediately and willingly given a dinar to one who extends the time for her by one month, and he extended it for her in exchange for the kiddushin – she is betrothed [the Ra'avad there]. And it appears to me that in such a case even the Rambam might agree that it is kiddushin, for since the money is in her hand and the time of the loan has already passed, the status of a loan is nullified from the money and it is like the benefit of use of the object which is the money, and it requires further study. And know that for the law one must be concerned for all opinions, for the first opinion is the opinion of most of our teachers, and as a stringency one must be concerned for the words of the Rambam, that if she received kiddushin from another she requires a get from both of them, and so it is explained from the words of our teachers, the authors of the Shulchan Aruch, in section 10, see there. However, when she is indebted to others and he gave the lender a perutah to extend the time for her – it appears that it is complete kiddushin, and so it is implied from the arrangement of the words of our teacher, the Rema. [And regarding the matter of ribbit – see Beit Shmuel subsection 29, and it appears to me that there is a prohibition, and he relied on the previous words of the author].

There is one who says that regarding the benefit of the forgiveness of a loan, even the Rambam admits, for he only disagrees regarding the extension of time, which is no better than the loan itself; but regarding the forgiveness of the entire loan—it is certainly a great benefit, and it is certainly possible to say so. However, there is one who remains in doubt even regarding this, for it is possible that even if he said to her, "With this benefit of forgiveness I betroth you," nevertheless, her mind is set on the money of the loan itself, and it returns to being like the loan itself, since it was given for spending and is no longer in existence. Therefore, in this as well, one must be concerned for the stringent view.

And just as he cannot betroth her with her own loan, so too he cannot betroth her with the loan of others, such as if he said, "Behold you are betrothed to me with the loan that is due to me from so-and-so." However, the reason for this is not the same as in her own loan—because it was given for expenditure—for in her own loan, where she has already acquired the money and he is not giving her anything new, it is the law that she is not betrothed; but in the loan of others, he is giving her something new that was not in her hand, for although the loan is not physically present, nevertheless it is a right for her as if it were physically present [Tosafot 47b]. But there is another reason for this: and it is not only necessary to state regarding an oral loan where he said to her, "Be you betrothed to me with the loan due to me from so-and-so," that there is no acquisition here at all and with what is he betrothing her, unless it is in the presence of the three of them as will be explained; but even regarding a loan in a document where he transferred the document to her through writing and delivery as written in Choshen Mishpat siman 66—nevertheless she is not betrothed. And the reason is that since he can even afterwards forgive the debtor his debt, her mind does not rely on it, for perhaps he will forgive him [48a].

However, the Tur wrote that if the paper is worth a perutah—she is certainly betrothed, and if not—she is betrothed out of doubt. Thus far his words. And the reason is that perhaps it is worth a perutah in another place, and this is as was stated regarding her own promissory note. But some say that even if the paper is worth a perutah—she is not betrothed, for the paper belongs to the borrower, and when he forgives him, will she not be obligated to return the paper to him [Ran], and even according to this opinion, if the paper is his and not the borrower's—she is betrothed when it is worth a perutah. And the Tur holds that she does not need to return the paper to him, and from his words it implies that even when he did not say to her "be betrothed to me with this document," his intent is also for the paper [Beit Shmuel], and in this it is more stringent than her own promissory note, and the reason is simple, for since he transferred the document to her, it is as if he explicitly mentioned the promissory note. And our teacher, the Beit Yosef, in section 13 wrote plainly that with a loan in a document she is betrothed out of doubt, and it implies that he holds that the doubt is whether she relied in her mind or not [ibid., and it is possible that he holds perhaps according to the previous resolutions there in the Gemara, even the Rabbis hold that she relied in her mind that he would not cause her loss by forgiving the borrower, see there and examine carefully].

And even though one who betroths with a loan is not betrothed, nevertheless, with a loan that has a mashkon upon it—she is betrothed, whether with her own loan or with the loan of others. And the Rambam wrote in law 14 the reason regarding her own loan: because she benefits from the mashkon from now, and benefit has reached her hand. Thus far his words. And regarding the mashkon of others, he wrote the reason in law 23: because a creditor has a partial acquisition in the body of the mashkon. Thus far his words. And there is no distinction in them between whether he took the mashkon at the time of its lending or not at the time of its lending, for in all of them he has a partial acquisition, and therefore he is liable like a paid bailee as written in chapter 10 of Hiring. And regarding her mashkon, it is simple that there is no distinction, since the reason is that she benefits from the mashkon from now; if so, what does it matter to me whether he took the mashkon at the time of the loan or not at the time of the loan? And since he wrote without qualification regarding the mashkon of others as with her own mashkon, it is explicitly clear that there is no distinction in them [and from this the Tur inferred, see there]. And as for why he found it necessary to state a different reason for her own mashkon than for the mashkon of others—and one cannot say that he holds regarding her own mashkon that even when he did not return the mashkon to her she is betrothed, for behold, he explicitly wrote there specifically when he returned the mashkon to her; and furthermore, the reason that she benefits from the mashkon from now is only relevant when he returned the mashkon to her. However, this is certainly so regarding the mashkon of others, that she is only betrothed when it came into his hand as a mashkon, but if it did not come into his hand as a mashkon, even though he can withhold it for his money, nevertheless this is not a mashkon in which he has an acquisition, as the Tur wrote. And the Rambam holds that this is only regarding the mashkon of others, where the reason is because he has an acquisition in it; but regarding her own mashkon, where the reason is because she benefits now from the object, it could be that she is betrothed even if it did not come into his hand as a mashkon. And even though the Tur wrote this regarding her own mashkon, see there, nevertheless according to the Rambam we can say so, for the Tur himself holds regarding her own mashkon she is betrothed even without returning the mashkon to her and even if he did not mention that he is betrothing her with the mashkon. For one who betroths with a loan that has a mashkon upon it, he holds that she is betrothed for the reason that since there is a mashkon, it is as if the loan is extant and it is not like an ordinary loan which is given for expenditure [Smag, Positive Commandment 48]. Therefore, if he said, "Behold, you are betrothed to me with the loan that you owe me upon your mashkon that is in my hand"—behold, she is betrothed even though the mashkon is still in his hand [the Rosh, first chapter, section 26]. And even the one who holds that he specifically must return the mashkon holds the reason is because this is like the benefit of forgiving a loan [ibid. section 10]. And these reasons are only relevant at a time when it was a complete mashkon, but according to the reason of the Rambam, it is possible that even without a complete mashkon she is betrothed [it appears to me].

It has already been explained that there are some of our teachers who hold that with her own pledge she is betrothed even without him returning the pledge to her, and our teacher, the Rema, wrote that when the pledge was in her possession it is as if he returned the pledge to her. And it appears to me that this is only according to the reasons that have been explained, but according to the reason of the Rambam that we cited, because she now derives benefit from it when he returns it to her, if so, when the pledge was in her hand this reason is not applicable. However, regarding an actual pledge it is well-settled even according to the Rambam, for she is betrothed for the reason that he acquires the pledge and now it becomes hers, for it is no worse than the pledge of others [it appears to me].

And regarding a collateral of others, there are some of our teachers who said that she is only betrothed with his collateral if it was taken not at the time of his loan, for then he acquires the collateral by Torah law and can betroth with it since he has an acquisition in the body of the collateral; however, he must inform her that it is a collateral, for if not so, she believes that the body of the object is hers and she can afterwards say, "It is not my will to be betrothed with something that is not his." But if he took it as collateral at the time of his loan and betrothed her with it—she is not betrothed, for that which the Torah said, that the creditor acquires the collateral, is only when it is not at the time of the loan. However, there are some of our teachers who hold that even with a collateral at the time of a loan—she is betrothed, for since when it is not at the time of his loan he acquires a complete acquisition until his collateral is redeemed, therefore at the time of the loan as well his lien is strong enough to be considered money with which to betroth the woman. However, it appears to me that anyone who betroths with a collateral commits a prohibition, for behold it is forbidden to use it, as is written in Choshen Mishpat siman 72, and it is like ribbit, and when he betroths the woman with it, behold he benefits from this and it is like ribbit. And it is possible that it is permitted to betroth with it, for he betroths her with the debt, but the collateral makes the debt as if it is in hand, and she will not use the collateral, and this is nothing. And perhaps this is why the Rambam did not write the reason regarding a collateral of others like the reason regarding her own collateral, that she benefits from the collateral, because it is forbidden to use the collateral of others.

Our teacher, the Rema, wrote that all this applies to a mashkon that he has from an Israelite, but from a koti – she is not mekudeshet. Thus far his words. For an Israelite does not acquire a mashkon from a koti [Pesachim 31a], but the Rambam, of blessed memory, did not distinguish in this because he holds that a koti also acquires a mashkon [Maggid Mishneh, chapter 4 of Hilkhot Chametz], and we do not rule accordingly, as is explained in Orach Chaim siman 441. And even if the time for payment arrived and he gave him permission to sell it, nevertheless, as long as he has not sold it, it is still in the domain of the borrower, as is proven in Choshen Mishpat siman 73. And it is possible that in such a case she is mekudeshet, for what does it matter to me if he sold it to others or gave it to a woman for her kiddushin, and certainly one must be stringent to require her to have a get, and if she received kiddushin from another – she requires a get from both of them. And if at the time he gave it as a mashkon to him he said to him, "If I do not pay you by such-and-such a time, the mashkon shall be yours from now," and the time arrived and he did not pay him and he betrothed her with it – it is a complete kiddushin even if he did not accept responsibility upon himself at the time of the loan, as is proven in Orach Chaim ibid., but if he betrothed her before the arrival of the time – she is not mekudeshet even if he did not pay him at the arrival of the time, for behold at the time of the kiddushin it was not his, and he must take it from her and betroth her with it a second time [it appears to me].

There are those who asked why a pledge is worse than a stolen object, such that she should not be betrothed with it; however, the truth is that certainly if he intends to steal it—she is betrothed. But when his intention is not to steal it, with what would she be betrothed [Beit Shmuel]? And similarly, if he sold the pledge to another and the other betrothed her with it—she is betrothed, for since the creditor sold it, it is like a stolen object. Therefore, even though the buyer did not know that this was a pledge in his possession, and had he known he would not have purchased it—nevertheless she is betrothed, just as one who betroths with a stolen object or sold a stolen object and the buyer betrothed a woman with it. And it appears to me that if there is danger in the matter, that he would be punished by the courts for what he purchased as a pledge or a stolen object and the buyer did not know of this—they are not certain kiddushin and it is no more than a doubt of kiddushin, and perhaps they are not kiddushin at all, as I wrote in section 19; see there carefully, and it requires further study.

Even though one who betrothes with a loan is not betrothed, nevertheless, if he had a debt in the hand of another and said to her in the presence of the other, "Behold you are betrothed to me with the debt that I have in the hand of this person" – behold she is betrothed, for she has acquired the debt through ma'amad sheloshtan. For even though according to Torah law it is not an acquisition, the sages already instituted that it should acquire, as written in Choshen Mishpat siman 126. And there is one who says that since it is only a rabbinic acquisition, the kiddushin are also only rabbinic. However, the opinion of our teacher, the Beit Yosef, is that from the Torah they are kiddushin, for all enactments of the sages regarding money are considered his money from the Torah, and like his words it is proven in the Yerushalmi [Ma'aser Sheni 4:3]. And even though ultimately he is betrothing her with a loan, in truth, since the debt belongs to others and he betrothes her with it, she is betrothed through the benefit of the loan [Ran]. And it is not similar to her own debt, for the debt of others, since it is a new thing for her that she did not have until now, her mind is on the benefit and not on the money of the loan itself. And some say that she is not betrothed through ma'amad sheloshtan, since we establish that one who sells a promissory note to his fellow and went back and forgave it – it is forgiven, as written in Choshen Mishpat siman 66; if so, there is a concern lest he forgive it and her mind did not rely on it. And the first opinion holds that in truth, in ma'amad sheloshtan he cannot forgive it, for the sages strengthened the enactment of ma'amad sheloshtan. But not in ma'amad sheloshtan, even if it were a loan with a document and he transferred it to her through writing and delivery, it is only a doubtful kiddushin for the reason that he can forgive it, as written in section 54.

It appears to me that when one betroths her with a loan of others via the acquisition of ma'amad sheloshtan, he must say at the time of the act to the borrower, "The money that I have in your possession as a loan, give it to this woman," for such is the primary law of ma'amad sheloshtan. And one cannot say that when he says to her, "Be betrothed to me with the debt that I have in the hand of this person," it is as if he says it to the borrower; for even though the consent of the borrower is not required, as even against his will it is acquired for him as is written in Choshen Mishpat there, nevertheless, it has been explained there that one may not add anything to the enactment. And in the enactment, we do not find that he should say this to the recipient, but rather to the borrower or the bailee. And the reason the poskim did not mention this is because it is a simple matter. Nevertheless, in practice, there is room for doubt, for perhaps regarding kiddushin, when he speaks to her in the presence of the three of them, it is as if he spoke to the borrower; and the law requires further study.

And just as we explained regarding a rabbinic acquisition that is not effective according to the Torah—that a woman is betrothed by it, such as an acquisition of Ma'amad Sheloshtan—similarly, conversely, one must doubt an acquisition that is effective according to the Torah but is not effective according to rabbinic law. For example, an acquisition of money where Reuven bought merchandise from Shimon and gave him coins but has not yet performed meshikha on the merchandise; for according to the words of the Torah, money acquires, but according to rabbinic law, only meshikha acquires. If Shimon then arose and betrothed a woman with those coins, is she betrothed by them or not? There is one who says that she is betrothed, for they did not intend to be lenient regarding the words of the Torah [Sma, siman 198, subsection 3]. However, if so, we should also say regarding Ma'amad Sheloshtan that when another comes and betroths her, we should also be concerned for the betrothal of the second. But we have already explained in the name of our teacher, the Beit Yosef, that she is fully betrothed to the first. For indeed, we explained in Choshen Mishpat there, section 1, that in matters of acquisitions, this is not in the category of uprooting a matter from the Torah, as this is not among the mitzvot, and all merchants may establish among themselves whatever acquisitions they desire, as written there in siman 201. The essence of an acquisition is the reliance of the mind of the buyer and the seller, and for this reason, an asmakhta does not acquire. And is a rabbinic enactment any less than an enactment of the merchants? Furthermore, since they have already enacted thus, it follows that they have no reliance of the mind upon the money. Therefore, it appears to me that, at the very least, it does not escape the status of a doubtful betrothal. However, if the seller is permitted to use the money according to what is explained there in siman 195—it is obvious that it is a full betrothal, as written there in section 7. We further explained there that when the transaction is voided through the acceptance of "He who punished," it is obvious that they are not betrothal.

And if the seller received the money from the buyer and betrothed a woman with the object he sold to the buyer, it appears that they are complete kiddushin since, rabbinically, the object has not yet left his possession. Nevertheless, some say that if another came and betrothed her, we are concerned also for the kiddushin of the second, since according to the Torah the first betrothed her with stolen property, and even though we explained that regarding acquisitions we follow only the enactment of the sages, of blessed memory, nevertheless, since even rabbinically he is liable to "mi she-para" if he wishes to retract from the sale, it is not called entirely his before he has received the "mi she-para," and we properly concern ourselves also for the kiddushin of the second. And according to this, it is possible to say also regarding the previous law when he betrothed her with the money, since if the buyer comes to retract from the sale he would not retract without "mi she-para," the money is considered somewhat as his before the buyer has received the "mi she-para," and we are concerned for his kiddushin.

If one sold an object to his fellow and the buyer had already performed meshikhah, and afterwards a defect was found in the purchase or an ona'ah of more than a sixth, and in the meantime the seller betrothed a woman with the money: if the seller did not know of the defect or the ona'ah—it is a simple matter that they are complete kiddushin, and even though the seller is obligated to return the money to the buyer, nevertheless, he is not obligated to return these specific coins and may return other money to him. However, if the seller knew of the defect or the mistaken purchase, it is possible to judge this with the law of one who betrothed with stolen property, and for the law one should follow the stringent path in this as there is no definitive ruling on this [see Mishneh LaMelekh there]. And if the buyer betrothed a woman with the object and afterwards a defect was found in it: if at the time of the kiddushin they knew of the defect—it is complete kiddushin, for he understood and accepted; and if they did not know of the defect—consequently there is no complete kiddushin here, for she also did not understand and accept regarding the defect. However, if it became known after the kiddushin that there is a nullification of the purchase that does not concern the woman—it appears that it is a case of doubtful kiddushin [it appears to me].

Even though one who betrothes with a loan is not betrothed, nevertheless, if he betrothed her with a loan and a ready perutah or with another ready object – she is betrothed, for her intent is upon the ready perutah. And even if the loan was a great sum, we do not say that her intent was upon the loan [Rashi, Sanhedrin 19b], and there is no difference whether he presented the loan before the perutah or whether he presented the perutah first, for so wrote the Rambam in chapter 5, law 16, see there. And specifically regarding a loan and a perutah is the law so, but if he betrothed her with two ready things, where with one of them she is betrothed and with the other she is not betrothed, such as if he betrothed her with two perutot, one of his own and the second of theft, there is no proof that it should be betrothal; for certainly they are not betrothal, as you have no greater mistaken betrothal than this, since she did not consent to be betrothed for less than two perutot. But a loan and a perutah are different, for in truth the loan is forgiven to her and there is no mistake here, rather that if her intent was to be betrothed also with the loan, the betrothal would not take effect, and we say that her intent was only upon the ready perutah and the loan is nothing but like a condition, as if saying "on condition that you forgive me the loan" [Rashba in Responsa, siman 1,633]. However, if he betrothed her with two things, with one of which she is not betrothed, such as theft or prohibited items of benefit and the like – there is no betrothal here. And it is not similar to a sale when one sells something that has not yet come into the world with something that has come into the world, where the acquisition takes effect on the thing that has come into the world, as written in Choshen Mishpat siman 209, or to "acquire you and a donkey" in siman 210, for there they are two separate matters, but the woman is one, and she did not consent to be betrothed except with the two things. And also it is not relevant to say that half of her should be betrothed and the betrothal should spread to all of her, for she did not consent to be betrothed in halves [and the words of the Avnei Miluim require great study]. And the reason we say her intent is upon the perutah is because a woman's intent regarding the grasp of the betrothal is only upon what is prepared before her, and what is not prepared before her is like a mere condition.

And so too regarding that which was explained in section 16, that a craftsman does not acquire ownership through the improvement of the vessel, and if he betrothed her with the wages of his labor, it is like a loan and she is not betrothed; if he added a perutah of his own to the labor and betrothed her with the vessel—she is betrothed, for it is like a loan and a perutah. And some say that this is specifically when he added some specific thing to the labor, such as if he added a stone or wood or a nail of his own that is physically present, but if he gave money of his own toward the labor, then this money is also like a loan. However, it is a simple matter that if he bought some specific thing with his money and added it to the labor—this is not like a loan, for since he bought it with his money, it is his; however, if he gave money of his own only to beautify the labor and the like, a thing that is not specific—it is like a loan, and so too if he added dye of his own—it is only a doubtful betrothal, for there is no substance to it.

Just as there is a distinction regarding a loan between her own loan and the loan of others—for in the loan of others, if he transferred the debt to her for the sake of kiddushin in the presence of the three of them, she is betrothed—so too regarding wages: if he performed labor for another and they became indebted to him a perutah for the labor, if he betrothed her with this perutah and in the presence of the three of them, it is like one who betroths with the loan of others in the presence of the three of them. And even if he has not yet finished the labor, but the owners accepted by kinyan and obligated themselves to pay him, he can betroth with this in the presence of the three of them [Beit Shmuel]. And there is one who says that regarding wages, as long as he has not returned the object he hired from him, it does not have the status of a loan at all, and it is worse even than a loan within its term; rather, when he returns the object it becomes a loan retroactively, and the law of "presence of the three of them" does not apply to it since the debt was not yet clarified, and as is written in Choshen Mishpat siman 126 regarding something similar to this [Avnei Miluim]. However, according to what we explained there in section 2, at the conclusion of the term the obligation is clear even when he has not returned the object, see there for several details on this; therefore, since the owners accepted by kinyan and obligated themselves to pay, the "presence of the three of them" appropriately applies to this as I have written. And it requires further study for the law of kiddushin, for perhaps one should also be stringent according to the opinion of the one who disagrees.

And regarding a contractor artisan when he made an object for her, as we wrote in section 47, that if he betrothed her with the wages of the work, the primary ruling is that she is not betrothed, for we hold that an artisan does not acquire through the improvement of the vessel; and only regarding kiddushin must one be stringent according to the words of those who hold that an artisan acquires through the improvement of the vessel. Some say that all this is when he already returned the vessel to her but betroths her with the wages due to him, but if he has not yet returned the vessel, and at the time he returns it to her he betroths her with the wages of the vessel – she is betrothed according to everyone, for it is like a loan upon which there is a mashkon, as was explained in section 56. And even though we require that it came into his possession as a mashkon, as was written there in the name of the Tur, nevertheless, the fact that he kept the object with him is like it came into his possession as a mashkon, for every artisan who holds the vessel in his hand is like a mashkon for his wages. And some say that specifically when he revealed his intention that he is holding it for his wages is it like a mashkon, for without this it is not similar to a mashkon. And some say further that even revealing intention does not avail unless she demanded the object and he told her that he would not give it to her until she pays, for this is explicitly like a mashkon. And some say further that even in such a case it does not avail, for the law of an artisan is not like a lender on a mashkon, for a mashkon only exists when it comes into his hand as a mashkon for a loan, for the Torah considered this as a bit of acquisition in the body of the mashkon. And it is a simple matter that one must be stringent in kiddushin according to all opinions. And there are some among the Rishonim who said further that the stringent opinion regarding an artisan acquires through the improvement of the vessel such that it should be kiddushin, this is only if at the time he returned the object to her he said to her, "Behold, you are betrothed to me with the wages of this vessel," but what he said to her prior to the return is nothing; and consequently, according to the one who holds an artisan does not acquire through the improvement of the vessel, even in such a case it does not avail, and not like the first opinion that this is like a mashkon. However, the essence of this law requires proof. And we have already explained that only because of the stringency of kiddushin do we concern ourselves with the opinion that holds an artisan acquires through the improvement of the vessel, and therefore one should not elaborate on this.

The Rambam, of blessed memory, wrote at the end of chapter 7: One who betroths with less than a perutah or with a loan, and subsequently had intercourse without specification in the presence of witnesses—she requires a get, for he relied upon this intercourse and not upon those invalid kiddushin; it is a presumption that no man among the upright of Israel makes his intercourse an act of zenut, and it is now within his power to make it an act of mitzvah. Thus far his words. And even though regarding an unattached woman the Rambam does not hold of this reasoning, as he wrote in chapter 10 of Hilkhot Gerushin, nevertheless, regarding these cases where he entered into the framework of kiddushin, but according to the law these are not kiddushin, we certainly say that he does not make his intercourse an act of zenut. And there are those who inferred from the wording of the Rambam that they are certain kiddushin through the intercourse [the Maggid Mishneh], but many disagree on this and hold that they are only doubtful kiddushin, and if she received kiddushin from another, she requires a get from both of them; and also regarding the opinion of the Rambam, there is no proof that his intention was for certain kiddushin [Kessef Mishneh]. And besides this, not everyone is learned in the law that one who betroths with a loan is not betrothed, such that his intent would be upon the intercourse for the sake of kiddushin; and so it is implied from the wording of the Shas [Ketubot 74a] and from the Yerushalmi [Gittin chapter 8, halakhah 9] that this which we say, "no man makes his intercourse an act of zenut," is only to require a get from him, see there. And in siman 31 more of this will be explained with the help of Heaven, and see there what I wrote in section 42 regarding several details in this with the help of Heaven.

Our teacher, the Beit Yosef, wrote in section 17: One who enters the house of his fellow and took for himself a vessel or food or the like and betrothed a woman with it, and the owner arrived, even though he said to him, "Why did you not give her this thing which is better than what you gave her?" — she is not betrothed, for he only said this thing to him so as not to be embarrassed with him, and since he betrothed with the money of his fellow without the knowledge of his fellow — this is gazel and she is not betrothed. If he betrothed her with something that the owner is not particular about, such as a date or a nut — she is betrothed out of doubt. Thus far his words, and it is the wording of the Rambam. And it appears that this necessity to give a reason that he only said it to him so as not to embarrass him but in his heart he does not want to give it to him, is not needed regarding why the kiddushin did not take effect retroactively, for this was not necessary, as even if we say that he said it to him with a whole heart, nevertheless since he did not take it with the knowledge of the owner he is a gazlan and one does not betroth with gazilah, and even a borrower without the knowledge of the owner is a gazlan, all the more so in such a case; rather the reason was necessary so that if we say that he said it to him with a whole heart, the kiddushin would take effect from now and onwards if the object is still in existence and he would go back and take it from her and give it to her before witnesses [see what I wrote in section 5], for this he said that even from now and onwards it is not effective because he did not say it to him with a whole heart, and so too there is a practical difference in this reason if he even took it in the presence of the owner and betrothed her with it and he said to him "Why did you not give her a nicer thing than this," if his speaking was with a whole heart she would be betrothed, but since we say that he did not intend with a whole heart she is not betrothed [see Chelkat Mechokek and Beit Shmuel, and it must be said as I wrote that even for the future he must betroth her anew as the Beit Shmuel himself wrote in siman 31 subsection 1, and even according to the Rashba there it must be said at least afterwards "behold you are betrothed to me," see there, and in siman 31 section 5 it will be explained regarding this with the help of Heaven].

All this that we have written is according to the opinion of the commentators of the Shulchan Aruch, but in my humble opinion the matters are astonishing. For how can we say that even regarding the future she is not betrothed on the grounds that he did not intend with a whole heart? From where do we have [the authority] to be so lenient, for perhaps he said it with a whole heart, and let it be at least a case of doubtful kiddushin? And indeed, there are some of our teachers who explained this matter in the Gemara [52b] that this one who betrothed her with the food had a connection to it, in that he was with him for half the profit of this food [Rashi], or that he had previously given him permission to take from this food but did not tell him [to take] from the superior ones [Tosafot], and he took from the superior ones. And even in this, it seems to me that their intention is not that they are certainly not kiddushin, but rather that the sages of blessed memory said that they are not certain kiddushin. And although in the Gemara there is a version at the end of the sugya "she is not betrothed," in the Rif and in the Rosh this version does not exist, see there. And even according to our version, one could say that she is not certainly betrothed. And although the language is strained, it is clearer according to the version of the Rif and the Rosh, and according to their system it does not refer to the future but rather to the past. However, the Rambam and the Shulchan Aruch, who did not explain it so, granted that for the past they are certainly not kiddushin, but for the future, why should it not be doubtful kiddushin, for perhaps he said it with a whole heart? Especially since in kiddushin there is also a bit of a mitzvah, so how did they rule on the matter that he certainly did not say it with a whole heart? And also regarding what they wrote, that in a matter about which the owner is not fastidious it is doubtful kiddushin even regarding the past—the matter is astonishing, that it should be within the power of a person to betroth a woman with the property of others without his knowledge [also the Noda BiYehudah, siman 59, wondered at this].

Therefore, it seems to me that the Rambam also refers to retroactively, and this is the matter: for certainly it is not the way of a stranger to come to another's house and take something for himself, and if such a man were found, the owner would not say to him "go to the better ones." Rather, it deals with his friend who constantly enters and leaves his house, and they are beloved companions, and it is the way of this one to enter the house of that one regularly and take what he wants, and the owner is not particular with him and knows this even beforehand. Nevertheless, this man who came without the owner's permission as he does from time to time and took an object belonging to the owners and betrothed a woman with it – she is not betrothed, for ultimately he took without permission and is like a robber. And even if he is not particular about what he eats there or his use of his vessels, regarding giving to others – he is certainly particular. And even if he says to him afterward "go to the better ones," he said so out of etiquette because of their closeness, but it is forever like theft. And even if he consents afterward, nevertheless, retroactively it is like despair without knowledge [see Tosafot Bava Metzia 22a, starting with "If etc." and "And if you will say etc."]. And when he said to him "go to the better ones" and he went back and betrothed her with it, it is a doubtful betrothal, but regarding retroactively, it is certainly not a betrothal. Therefore, the Rambam was required to say that his statement was in order not to shame him, for this is a practical difference even regarding the future, that it should not be a certain betrothal. Therefore, in a matter about which the owner is not particular at all and knows that this regular person always takes them – she is betrothed out of doubt, for perhaps it is as if he commanded him to take.

Our teacher, the Rema, wrote: A guest who sits with a homeowner and takes his portion and performs kiddushin with it – she is betrothed. Thus far his words. And even though we maintain that guests are not permitted to take from what is before them and give to the son or the servant of the homeowner without receiving permission from the homeowner, as is written in Orach Chaim siman 170, and all the more so that he should not give to others, therefore some say that it is only a doubtful kiddushin. And some say that this is only when they have not yet given each one his portion before him, but when they have given each one his portion before him – it is like his own and he is permitted to do with it whatever he desires, and there is some proof for this from Masechet Derech Eretz chapter 9, see there.

There is one who says that guests reclining with a householder, even if they clarified their portions and placed them before them, and the householder took from what was placed before them and betrothed a woman—she is betrothed as long as they have not placed it into their mouths, and even though we wrote that when each one's portion was placed before him it is like his own, this is true when he performed some action with his portion, for just as he can place it into his mouth, so too he can give it to another and this is his acquisition; however, as long as he has not performed some action with his portion, the portion is still considered as belonging to the householder. And it appears to me that this is regarding a guest who eats for free, but a guest in an inn who pays for his eating, immediately when they place his portion before him he has acquired it, and the householder has no authority over the portion, for behold, the table before him is considered like his own for the duration of his stay in the inn, and the table acquires his portion for him. However, with many guests, as long as the portion of each one has not yet been clarified—it is not yet considered as his. Nevertheless, one must remain in doubt if the householder has a portion in this as long as the portion of each one has not yet been clarified, and it requires further study for the law.

If there was merchandise between him and his fellow and he divided it without the knowledge of his fellow and betrothed with his portion, since it requires the assessment of a beit din and his division is nothing, as is written in Choshen Mishpat siman 176—she is not betrothed, for one may not take for himself what he wishes and leave what he wishes. And even if he gave her all the merchandise that is in his portion and it is worth more than a perutah—even so she is not betrothed, for her intent is only to be betrothed with all the merchandise, unless he specified and said, "Be betrothed to me with the portion that I have in this merchandise" [the Maggid Mishneh], for behold, he betrothed her with this portion and he only has half in this since his division is not a division. And it appears to me that if she knew that he divided the merchandise without the knowledge of his partner—it is a case of uncertain betrothal, for behold, she knows that his division is nothing and she intended and accepted whatever he has in this; and even though women are not learned in the law, nevertheless, we do not say so to be lenient in such a case. And it is not similar to what was written in section 32, for there it is different because she did not receive it for the sake of betrothal at all but rather as a deposit, see there. And likewise, if the partner came afterward and consented to the division and the betrothal money was not yet consumed—it is a case of uncertain betrothal, as it can be said that the matter was revealed retroactively that he betrothed with his own [Chelkat Mechokek]. And there is one who says that this is similar to despair without knowledge [Beit Shmuel], but in truth this law depends on retroactive clarification; if we say there is retroactive clarification to be stringent in a Torah matter, we say the matter was clarified retroactively that this is his portion [HaMakneh], and even if it was consumed it is a case of uncertain betrothal [see Chelkat Mechokek and Beit Shmuel]. And all this is regarding merchandise that has good and bad qualities, but in a type of merchandise where the entire type is equal to each other and he divided without the knowledge of his fellow and betrothed her with his portion—behold she is betrothed, for this is like the division of coins which a partner may divide without the knowledge of his fellow as is written in Choshen Mishpat there, and specifically that he divided it by measure or by equal weight portion for portion in a manner that does not require the assessment of a beit din.

One who betroths a woman with a borrowed ring or with another borrowed object and did not inform her that it is borrowed—she is not betrothed, for she accepted the object on the understanding that it is hers, and yet it is not hers since she must return it to the owners, and it turns out that he betrothed her with stolen property [the Rosh, chapter 1, section 20]. And if he informed her that it is borrowed, but did not inform the owner of the object that his desire is to betroth a woman with it—she is not betrothed unless he lent it to him for a known time, for if not so, the owner of the object could take it from her immediately; for even though we establish that an unspecified loan [of money] is for thirty days, regarding the borrowing of an object it is not so, as I wrote in Choshen Mishpat siman 341, see there. And even according to those who hold there that an unspecified borrowing is also for thirty days, we do not say this except regarding the borrower himself, and it is obvious that he has no permission to lend it to another, for this is like absolute theft [Avnei Miluim]. However, in the case of one who borrows for a known time, granted that the borrower is also not permitted to lend it out ab initio, nevertheless, post facto this is not like theft [ibid., and Beit Shmuel subsection 48]. And there are those who hesitate regarding this, for since he performed a prohibited act, she can say "it is not pleasing to me to be betrothed through a prohibition" [Makneh and Korban Netanel, letter 98], and we specifically require that he gave him permission to lend it to another, and so it implies from the wording of the Rosh there; and as for the law, it is a case of uncertain kiddushin. And for this condition, another condition is needed: that he informs her that the object is borrowed to him until such-and-such a time, and that the benefit of the ornamentation for that time be worth a perutah—and then she is betrothed. And even though she must return the vessel after the time, and it is similar to a gift on condition that it be returned, which will be explained at the beginning of siman 29 that she is not betrothed, nevertheless, she is betrothed because he gives her what is his, and that thing he gives to her as a complete gift [Beit Shmuel].

And some say that even if all these conditions exist – it is only a doubtful kiddushin, for it is similar to a gift on condition that it be returned [Tur in the name of the Baal HaIttur], because since he betrothed her without specification with the object, even though she knew it was borrowed, nevertheless her mind is set on the body of the object, and since the body returns to the lender it is similar to a gift on condition that it be returned. And the first opinion holds that since she knows it is borrowed, her mind is set only on the benefit of the use. Therefore, if he said explicitly, "Behold, you are betrothed to me with the benefit of the use of the object" – it is effective according to everyone, for the benefit remains with her and he did not give her the body at all, and this is not at all in the likeness of a gift on condition that it be returned. And in such a case, he does not need to inform her that it is borrowed, for behold, he is not betrothing her with the body of the vessel but rather with the benefit of the use for a certain time. And if he betrothed her explicitly with the body of the vessel – according to everyone it is not kiddushin [Beit Shmuel]. And some say that even when he betrothed her explicitly with the benefit of the use, he must inform her that it is borrowed, for if not so, since she believes it is his and he betrothes her with the benefit of the use, this is his intention according to her understanding like one who betrothes her with this vessel for her use, and since the vessel returns it is similar to a gift on condition that it be returned. But when he tells her that it is borrowed, behold she knows that he is giving her everything he has in the vessel and it is not similar to a gift on condition that it be returned [Avnei Miluim subsection 51]. And it does not appear so, for behold, even in a gift on condition that it be returned itself, by the law she is betrothed, but the sages decreed because it is similar to chalifun as written at the beginning of siman 29; if so, when he betrothes her with the benefit of use, even though she believes it is his, nevertheless this is not a likeness to a gift on condition that it be returned where he betrothes her with the vessel itself, and it is similar to chalifun. Rather, there is one who says that when he betrothes her with the use of the vessel, he must say to her "with the benefit of the use of the vessel," the meaning of which is like the benefit of a loan, where she would have had to give a perutah to appease him to lend to her and he betrothes her with this perutah. But if he said without specification that she should be betrothed "with the use of this vessel," it is not effective, for this is like one who betrothes her with the wages of the use and it is like a loan, for the rental of a vessel is like a loan [HaMakneh].

And know, that regarding what we wrote that there are those who say that even with all the conditions they are only a doubtful kiddushin, there are those who disagree with this and hold that when all the conditions are present, according to everyone it is a certain kiddushin. The poskim who disagreed only disagreed if he borrowed it without a limited time, and therefore some say they are only a doubtful kiddushin since he can take it at any time he desires, and some say she is betrothed for they hold an unspecified borrowing is thirty days [Bach and Beit Shmuel]. According to this, since we hold according to the law that an unspecified borrowing is not thirty days, it is obvious that it is only a doubtful kiddushin. And according to what I wrote in section 77 that afterwards it is obvious that he cannot lend it, it is remote even from a doubtful kiddushin; however, in practice one should not be lenient, and it is a doubtful kiddushin.

Our teacher, the Beit Yosef, wrote in section 20: One who gives his fellow a gift on condition that he return it, and the recipient went and betrothed a woman with it—she is betrothed. Thus far his words. And even though when one betroths a woman on condition that she return the betrothal object she is not betrothed, as is written in siman 29, this is because of the decree of exchange as is written there; however, when one gives a person a gift on condition to return, it is like his own property for he transfers it to him with a complete kanyian, and that which he said "on condition to return" is like a mere condition as is written in Choshen Mishpat siman 241 section 11, and therefore he can also consecrate it as is written there, and consequently he can also betroth a woman with it. And if it is difficult, for behold he stipulated "on condition to return," and when he does not fulfill the condition the gift should be voided, and since he betrothed a woman with it and it is impossible for him to return it, behold the condition was not fulfilled and the gift is voided and he betrothed her with stolen property—for behold regarding consecration there we establish that he must return it while it is consecrated as is written there, and here behold the woman will not return it to him? For it can be said that here too it is in his power to either buy it afterwards from the woman and return the object to him, or to leave it in the hand of the woman and pay him money according to the value of the object; for even according to the one who holds regarding a condition of gittin that he must return the object itself specifically [Gittin 72b] and so we establish as is written in siman 143, this is only regarding a get because we say his intent is to cause distress, but regarding an ordinary person, what difference does the object itself or the value of the object make to me [Rosh, first chapter, section 20], and therefore if he did not fulfill his condition and did not return even the money to the giver, he has betrothed with stolen property retroactively [Chelkat Mechokek]. However, she would never leave the status of a doubtful betrothal, for whenever he returns the money to him the betrothal will take effect retroactively. And it is a simple matter that when he betroths her with this, he gives her the object forever, for if he also gives it to her on condition that she return it, it is not a betrothal as has been explained [and what the Avnei Miluim wrote in subsection 53 that a gift on condition to return is only an acquisition of the essence for a time, and so wrote the Ketzot HaChoshen there, it is not sufficient to reject the words of the Tosafot and the Rosh and the Ritva, and his difficulty from "this ox is consecrated" we settled in Choshen Mishpat there section 12, and his proof from the responsa of Rabbi Eliyahu Katz can be answered, and delve into this].

One who rents a vessel or an object from his fellow and betroths a woman with it, his law is like the borrower of a vessel that has been explained; and if he did not inform her that it is rented in his hand – she is not betrothed, and if he informed her and the use for the duration of the rental is worth a perutah – she is betrothed. And there is one who is uncertain, saying that a renter is superior to a borrower, for whereas regarding a borrower, when he betroths her with the body of the object she is not betrothed as I wrote in section 78, yet regarding a renter she is betrothed, for a rental for a day is a sale; however, it is possible to say that even regarding a renter she is not betrothed, for the sages did not say it is a sale for all matters, and so it implies from the words of our teacher, the Rema, in section 19, who compares it to a borrower entirely. Nevertheless, there is one who says that regarding a rental it is effective when he gives her the body of the object and she knows that it is rented, for even if it is not like a sale, why should it not be within his power to give his right to another? For behold, regarding the rental of land, he may even ab initio rent it to another as I wrote in Choshen Mishpat siman 312, and regarding the rental of movables, granted that ab initio he is not permitted to rent it to another, this is lest he lose it, but nevertheless, why should that right which he has not be effective when he conveys to her the right he has in the body of the matter? For behold, he has a right in the body of the vessel for all the days of his rental since he paid money, and it requires further study.

Everything we have explained regarding one who betrothed with a borrowed vessel—this is when he did not inform the owner of the object that his desire was to betroth a woman with the vessel. However, if he informed the owner of the object—our teachers ruled that it is a betrothal in every case, even if he did not inform her that it was borrowed. The reason is that we say that since the lender lent it for the purpose of betrothal, he resolved in his heart to give it to him in such a manner that would be effective for betrothal; and if it would not be effective with the language of borrowing, it shall be a gift, or at the very least it shall be a gift on condition that it be returned, and he shall acquire the vessel from the woman and return it to him or pay him money for the vessel, as has been written regarding the law of a gift on condition that it be returned. Therefore, there is reason to doubt when he did not return money to the lender whether it is a certain betrothal, because we say that he also intended it as a complete gift, or whether it is only a doubtful betrothal. From the wording of the Tur, it is implied that he also doubts this, and therefore it is only a doubtful betrothal. We also say a similar example to this matter regarding a communal etrog, that one fulfills the obligation of etrog with it, as has been written in Orach Chaim siman 658.

And specifically if he borrowed from the husband himself, but he may not borrow a vessel from a woman who has a husband without her husband's knowledge, for whatever a woman has acquired, her husband has acquired. Nevertheless, our teacher, the Rema, wrote that if he borrowed a vessel from a woman who has a husband and betrothed a woman with it – we are concerned for the betrothal and it is a case of doubtful betrothal. And now they are accustomed to be somewhat lenient in this; when the groom does not have a ring, they borrow from another woman standing there at the time of the chuppah even without her husband's permission, because presumably the husband does not object to giving it as a gift on condition that it be returned. And there is no reason for this leniency, for in a place of monetary loss we do not say that it is pleasing to a person to perform a mitzvah with his property, as written in Orach Chaim at the end of siman 14 and siman 437. And it appears to me that there is a correct reason for this leniency: for certainly regarding vessels and objects that do not pertain to her person, she certainly has no authority, and regarding this our teacher, the Rema, said only that there is reason to be concerned for the betrothal, meaning that they are a doubtful betrothal because perhaps it is pleasing to the husband. But regarding a ring or other object that pertains to her person, behold they are hers and the husband has no connection to them, and behold a creditor cannot collect from them as written in Choshen Mishpat siman 97, and even Hekdesh does not collect from this as the Rambam wrote in the third chapter of Arachin. And even though after his death these are appraised in her ketubah as written in siman 99, and the reason is that he only transferred ownership to her as long as she is under him and not when he dies, and all the more so he did not transfer ownership to her to give them to others; however, perforce they are hers, for behold even after his death it is not possible to take them from her as written there, rather they calculate them for her against the value of her ketubah. And so too when she gives to others, they will calculate it for her as the value of her ketubah when he dies, but nevertheless, since they are hers, why should she not be able to do with them what she wishes? And all the more so if the ring she lends is her own betrothal ring, for it is simple that it is entirely hers, as betrothal money does not return to the husband as written in siman 50, see there. And if so, this custom has a basis according to the law.

According to what has been explained, every arranger of kiddushin must be careful to ask the groom if the ring is his or if he borrowed it, and if he borrowed it, he must ask him if he informed the lender that his desire is to betroth a woman with it, and also if he borrowed it from a husband or from a woman who has a husband [Beit Shmuel]. And according to what I wrote, regarding vessels that pertain to her person, the husband's consent is not effective without her consent, and ab initio one should be careful not to betroth with a borrowed vessel [Responsa of the Rosh], and it is better to betroth with a coin than to betroth with a borrowed ring. And if another gives the groom a ring as a gift, they should be careful that the groom lifts the ring three tefachim as is written in Choshen Mishpat siman 198. And the one who performs the betrothal is not believed to cast a slur upon the kiddushin by saying that he stole the ring or borrowed it without the owner's knowledge, for a person does not make himself out to be wicked [Darchei Moshe], and one who borrows without knowledge is a thief. And if he sold him an object on the condition that he pay him another object like it—this is a complete sale, only it is necessary that he acquire it through meshikhah or through hagbahah, each according to its mode of acquisition; and if he sold it to him for money, the giving of the money is not a prerequisite, provided that they perform the setting of the price, for without a setting of the price he has not acquired it, as is written in Choshen Mishpat siman 200.

One who betroths with objects from which benefit is forbidden – she is not betrothed, for it is not worth money. And even though there are some among them whose commandment is to be burned and their ash is permitted for benefit, and if so, when there is a perutah's worth in the ash she should be betrothed with it; and similarly there are objects from which benefit is forbidden that are permitted to benefit from them not in the manner of their normal benefit, and if there is a perutah's worth in this she should be betrothed with this—nevertheless, since she intends to be betrothed with the essence of the object and in the manner of normal benefit, the kiddushin are automatically void, for even if he betrothed her with a maneh and it was found to be missing a dinar, she is not betrothed. But if she knew that this was of the objects from which benefit is forbidden and in such a case it is worth a perutah, it is possible that she is betrothed [and so it appears in Tosafot 56b]. And some say that even not in the manner of their normal benefit there is no permission except for a sick person and not for a healthy person, for the sages of blessed memory only said that one is not lashed for objects from which benefit is forbidden not in the manner of their normal benefit, but nevertheless there is a rabbinic prohibition [Ran ibid.]. And this is only according to the opinion that will be explained, that even with rabbinic prohibitions she is not betrothed, and therefore she is not betrothed because of the benefit not in the manner of their normal benefit. And that which is permitted to a sick person is not considered money that kiddushin can take effect with, for if not so, all objects from which benefit is forbidden are permitted to a dangerously ill person. And according to the one who holds that with rabbinic prohibitions of benefit she is betrothed, she requires a get; and similarly if there is a perutah's worth in the ash, she requires a get [see Bach and Chelkat Mechokek]. And there is one who says that with all objects from which benefit is forbidden, when she knows that this is forbidden for benefit, he can betroth her, because she can sell it to a sick person [Beit Shmuel subsection 54]. And the matter is astonishing, for the sale itself is a prohibition even if she sells them to a sick person, and though he may benefit from it not in the manner of normal benefit, nevertheless the sale is in the manner of normal benefit [and so wrote the HaMakneh, and so it appears from the Ritva]. And even when she herself is sick and she is permitted to benefit from this not in the manner of their normal benefit, nevertheless there is doubt if the kiddushin take effect, for granted that regarding her it is worth a perutah, nevertheless regarding him it is not worth a perutah. Furthermore, it is only called money if it is worth money to every person, unless he said to her: "Behold, you are betrothed to me with that benefit that you have, in that I gave you something with which you will be healed," and there is a perutah's worth in that benefit [Mishneh LaMelech at the beginning of chapter 5 in the name of the Ritva], and so it appears primary in the law. And know, that regarding chametz on Pesach, even though we hold in Orach Chaim siman 445 that its ash is forbidden, nevertheless for the stringency of kiddushin one must be concerned that perhaps it is of those that are burned and its ash is permitted [Beit Shmuel ibid.].

Therefore, one who betroths with orlah, with kilayim of the vineyard, with an idol, with a stoned ox, with an eglah arufah, with pigul, notar, or tamei, or with the birds of a metzora which are taken for the purification of a metzora—one is slaughtered and one is sent away, and even though the one sent away is permitted for benefit, for the Torah did not say "send" to cause others to stumble, nevertheless from the slaughter of its fellow until the sending it is also forbidden [Tosafot 57a], or with the hair of a nazir, or with a peter chamor whether after the breaking of the neck or before the breaking of the neck when it was not redeemed with a lamb, or with meat and milk, or with chullin slaughtered in the courtyard, or with wine used for a libation—she is not betrothed. Similarly, a kohen who betrothed with his portion in the Mikdash, whether from most holy sacrifices or from lesser holy sacrifices—she is not betrothed; even though the kohanim eat them, nevertheless they are not theirs but belong to the Most High, and when they merit them, they merit them from the table of the Most High, and the Torah only granted them merit in eating and not in any other matter. Similarly, an Israelite who betrothed with a todah or shelamim—she is not betrothed for the reason that has been explained, and there is no difference between while they are alive or after slaughter. And one who betroths with the hides of sacrifices after the sprinkling of the blood—it appears that she is betrothed. Similarly, one who betroths with the remnants of a minchah—she is not betrothed. Similarly, one who betroths with ma'aser sheni before redemption, whether inadvertently or intentionally—she is not betrothed, for before redemption it is the property of the Most High.

A bekhor in this time after it has sustained a blemish—it is certainly the property of the kohen, for he is permitted to sell it and feed it even to a gentile; but an unblemished bekhor in this time, its law is like all kodashim kalim during the time of the Temple, which are not his property, for it is forbidden for shearing and labor. However, some say that a bekhor in this time, even if unblemished, is the property of the owner [the Rosh, first chapter of Bava Kamma, section 15 in the name of some say], and therefore in the final law, if a kohen betrothed a woman with it—it is a doubtful betrothal. And it is not similar to other kodashim, for from the moment it is born the kohen has acquired it, and so we learned in the Mishnah in the first chapter of Ma'aser Sheni, see there, and so our teacher, the Beit Yosef, ruled in Yoreh Deah siman 306 that this is the primary law [the Gra], and nevertheless here, because of the stringency of a married woman, he wrote that she is doubtfully betrothed; and disqualified consecrated animals, like kodashim that sustained a blemish before they were redeemed, are forbidden for benefit, and once they are redeemed they are permitted. [In the Jerusalem Talmud, Nedarim, end of chapter 5, it is stated: one who betrothes with a Sefer Torah, she is not betrothed—even with his own Sefer Torah, and it requires further study].

There are some of our teachers who hold that there is no difference between prohibitions of benefit from the Torah and prohibitions of benefit from the rabbis, for in all of them the kiddushin do not take effect; for granted that they are only prohibited from benefit by the rabbis, nevertheless, ultimately this is not property, as it is worth nothing [Rashi Pesachim 7a and Ran at the end of the second chapter of Kiddushin], and so it is implied in the Yerushalmi [first chapter, first halacha]. Therefore, one who betroths a woman on the eve of Pesach during the sixth hour with chametz, which is then prohibited from benefit by the rabbis—and even chametz nuksheh, whose prohibition of benefit even on Pesach itself is only from the rabbis, and it is a double rabbinic prohibition—nevertheless, she is not betrothed. And so is implied the opinion of the Rambam at the beginning of the fifth chapter [the Maggid Mishneh]. However, there are some of our teachers who hold that regarding any rabbinic prohibition that has no root in the Torah, if he betrothed a woman with them, she is betrothed. Therefore, with rabbinic chametz and during rabbinic hours as we have said, she is betrothed, for this is like that which has no root in the Torah. But during Torah hours and with rabbinic chametz, or during rabbinic hours and with Torah chametz, this is called having a root in the Torah and she is not betrothed [Tosafot Pesachim ibid. and the Rosh Kiddushin ibid.]. And there are some of our teachers who hold that with Torah chametz and during rabbinic hours one must be concerned for the kiddushin, for perhaps they erred in the hour and thought it was the sixth hour when in truth it was only the fifth, when it is still permitted for benefit even by the rabbis [Ramban]. But during Torah hours and with rabbinic chametz, one need not be concerned for the kiddushin and one need not be concerned that they will err; for even if they err, they will not err between a Torah prohibition and complete permissibility, and furthermore, between before midday and after midday, error is not so common. [What the Beit Shmuel wrote in subsection 52 regarding chullin in the Temple courtyard follows Rabbi Shimon, and we do not rule accordingly].

Our teacher, the Beit Yosef, wrote in section 21: One who betroths with rabbinic prohibitions of benefit entirely, which have no root in the Torah—she is betrothed. If with Torah chametz and rabbinic hours, or with rabbinic chametz and Torah hours—it is a doubtful betrothal. And if with Torah prohibitions entirely, such as Torah chametz during Torah hours—she is not betrothed. Thus far his words. And his words are puzzling, for regarding rabbinic chametz and Torah hours, there is no one who holds that one must be concerned for the betrothal [Chelkat Mechokek and Beit Shmuel and the Gra]. Furthermore, this is explicit in the Gemara Pesachim there, that one need not be concerned for the betrothal. And should we say that he was concerned for a minority opinion which holds that the prohibition of benefit for chametz on the eve of Pesach until nightfall is only rabbinic—if so, we should say this even regarding Torah chametz. Furthermore, it is a rejected opinion among all the poskism [Beit Shmuel subsection 53, see there, and it is a forced explanation]. It is also difficult regarding what he ruled, that with a rabbinic prohibition that has no root in the Torah she is betrothed, and he was not concerned for the opinions that it is not a betrothal; he should have ruled in this case that it is a doubtful betrothal [the Gra].

And it appears to me that his words are correct, for indeed we have not found explicitly by any of our teachers who would say that during rabbinic hours and with rabbinic chametz kiddushin do not take effect, and since the Rosh ruled explicitly that in this case the kiddushin take effect, and regarding the opinion of the Rambam he also held thus as he wrote in his great book, therefore he ruled accordingly. And that which he ruled that with rabbinic chametz and Torah hours it is a case of doubtful kiddushin, this is because the system of Rashi, of blessed memory, is that the Gemara in Pesachim is dealing with rabbinic hours and Torah chametz, where in that case we do not concern ourselves with kiddushin, and it is slightly implied from his words that in the reverse case one must concern oneself with the kiddushin. And the reason is that it is well understood that when the essence of the prohibition is from the Torah and only the sages moved the prohibition earlier, it is rightly considered like a Torah prohibition, but with chametz whose essence is rabbinic, where from the Torah there is no prohibition at all—it is like something that has no root in the Torah. And all this is to explain the opinion of our teacher, the Beit Yosef, but for the law, in all of them it is a case of doubtful kiddushin even in a matter that has no root in the Torah. [That which the Beit Shmuel and other later authorities wrote that according to Rashi with two rabbinic factors she is not betrothed—it is not so, for Rashi explains in Pesachim that "Kurdish wheat" is absolute chametz, and the Korban Netanel already rebuffed them in chapter 2, section 2, sign 7, see there, and there is a proof for this from Rashi there 21a, starting with the words "From six etc." that if it is after six what does it come to teach us etc. Thus far his words, and according to the Beit Shmuel it comes to teach us a great deal, and since Rashi was pressed by the phrasing "from six and onwards" and did not explain it according to its plain meaning and regarding rabbinic chametz, it appears that he holds that in such a case there is kiddushin as I have written, and the words of the Beit Yosef are settled, and delve into it].

There are those who asked how it is possible to say that with something whose primary prohibition is rabbinic she would be betrothed with them, for after all, since it is forbidden for benefit by rabbinic law, he is giving her nothing. And behold, one who betroths via a gathering of the three where the acquisition is rabbinic, it is a valid betrothal; and likewise conversely, regarding that which the sages forbade for benefit, they are not betrothed [Beit Shmuel subsection 52]. However, from acquisitions there is no proof at all, for acquisitions that the rabbis instituted are no worse than the acquisitions of merchants that are practiced, which are a Torah acquisition as I wrote in section 63. However, regarding other rabbinic prohibitions, it appears to me that it depends on the dispute of the Rif with the other poskim regarding one who betroths with witnesses disqualified by rabbinic law, whether one must be concerned for the betrothal. And it will be explained in siman 42 with the help of Heaven that the Rif indeed holds so, that they are not betrothed, for anyone who betroths, he betroths according to the will of the rabbis. And those who disagree with him hold that we do not say this regarding the uprooting of betrothal except in a place where the sages said so explicitly, but regarding all rabbinic prohibitions and disqualifications, there is no proof that the betrothal should be nullified entirely, for perhaps in such a case the sages did not institute a decree. And behold, there are betrothals that take effect even through a transgression, such as those liable for negative commandments, and likewise it can be said regarding rabbinic prohibitions and disqualifications: granted that he is performing a prohibition, nevertheless the betrothal takes effect. However, from the Yerushalmi it implies that regarding things forbidden for benefit by rabbinic law, betrothal does not take effect, as I wrote in section 88 [and I wonder at the Beit Shmuel who cited the Rif, for in truth the Beit Yosef ruled in siman 42 not like him].

Regarding all prohibitions of benefit, even those from the Torah, if one transgressed and sold the prohibited item and received money for it and betrothed a woman with it—she is betrothed. For even though he commits a transgression by benefiting from prohibitions of benefit, nevertheless, the money does not become seized by the prohibition. Only regarding idols and Shevi'it did the verse reveal that the money becomes seized in their stead, and not other prohibitions of benefit. And even though at the outset the money is certainly forbidden to him, nevertheless, if he betrothed a woman with it, she is permitted to benefit, as they are not the money of prohibitions of benefit regarding her. And even though he benefits by her becoming betrothed to him, they did not act so stringently in this matter, for the money is not seized by the prohibition of benefit. And from the Torah they are permitted to him at the outset, and even though by rabbinic decree it is forbidden for him at the outset to benefit from the money—nevertheless, she is betrothed. And regarding idols, if he sold them and betrothed with their money—she is not betrothed for the reason that has been explained.

When is she betrothed? When he sold them to a Cuthite or to an Israelite and he knew that these are things from which benefit is forbidden; but if the buyer did not know at all that they are things from which benefit is forbidden, and the seller took their payment and betrothed a woman with it—she is doubtfully betrothed, for it is close to saying that the betrothal did not take effect at all, since he must return the money to the buyer and they are like stolen property in his hand, and so it is implied in the Yerushalmi. However, nevertheless, it is possible to say that since the money came into his hand by way of buying and selling, this money is like a loan in his hand and he may spend it and pay with other money [the Rosh and the Ran there]. But when the buyer knew that these are things from which benefit is forbidden and he took them—it is simple that the money belongs to the seller, for he has taken it. [What the Rosh wrote, "money of a gift," is a slip of the tongue and is not relevant to all places, for he was willing to buy them and was not concerned about the prohibition, and it is not similar to "recognizing that it is not his" where they would take it from him against his will, and the difficulty of the Beit Shmuel in subsection 58 is settled; and furthermore, at the very least they are like a loan as the Avnei Miluim wrote in the name of the Ritva, and see Tosafot Bava Batra 92b, starting with "If etc." and "It is not similar etc."].

One who betroths with terumot and ma'asrot – if he is a Yisrael, even though they are from his own produce and he has "tovat hana'ah" in this, in that he may give them to any kohen he wishes, nevertheless the Rambam, of blessed memory, ruled in chapter 5 that she is not betrothed, for "tovat hana'ah" is not monetary value. And some say that "tovat hana'ah" is monetary value and she is betrothed [the Rosh in the name of Rabbeinu Chananel at the end of chapter 2]. Many of the great authorities agreed with the Rambam [see Shach, Choshen Mishpat, end of siman 350], and we have already explained there in section 13 that at the very least it is a legal doubt, for from the Gemara in Bechorot it is explicitly proven that it is monetary value, see there [page 27a]. But a kohen who betrothed with terumah, or a Levi with ma'aser rishon – she is betrothed, for priestly gifts are his actual property, as he is permitted to do with them whatever he wishes; it is not similar to kodashim, where they merit from the table of the Most High, but priestly gifts were given by Hashem to Aharon and his sons to be their actual assets. Therefore, a kohen who betrothed with terumah, terumat ma'aser, challah, bikkurim, the foreleg, cheeks, and abomasum, the first of the shearing, the five sela'im of the redemption of the son, the redemption of a firstborn donkey, the stolen property of a convert, a field of possession, or a field of cherem – she is betrothed, and he may even betroth with them ab initio; and a son of a Levi with ma'aser, and similarly a poor Yisrael with ma'aser ani. But a wealthy man who betrothed with the ma'aser ani of his field – she is not betrothed; even though if he wished he could renounce his assets and become poor and it would be fit for him, nevertheless as long as he has not renounced them, it is not his [Lechem Mishneh], and furthermore, every poor person is commanded to separate from his own field and give it to others [Gittin 12a]. And a Yisrael who inherited terumot and ma'asrot from his maternal grandfather who was a kohen, they are like his own, and even though he is not permitted to eat them, he may sell them; and even if tevel fell to him and he separated terumot and ma'asrot from them, they are like his own, for gifts that have not been set aside are considered as if they were set aside, and specifically when their processing for terumot and ma'asrot was completed during the lifetime of the kohen and the kohen acquired them during his lifetime [Rashi, Kiddushin 58a].

One who betroths with hekdesh of the Temple treasury inadvertently – she is betrothed, and he must pay the principal and the fifth to the hekdesh and bring his asham offering according to the law of anyone who commits me'ilah inadvertently. But if he betrothed willfully – she is not betrothed, for with willful intent the hekdesh is not desanctified and he is not liable for me'ilah, as me'ilah was only stated regarding an inadvertent act. One who betroths with the produce of shevi'it, or with the ashes of the parah adumah, or with the water he filled for the ashes of the parah – she is betrothed; and even though it is forbidden to take payment for the sanctification of the water and the sprinkling, nevertheless, since he may take payment for the filling of the water and the bringing, when he betroths with the substance of the water and the ashes, she derives benefit from them in that she can take a perutah from one who needs them due to the exertion of bringing and filling. And some say that she is not betrothed with the water and the ashes themselves, but only if he betrothed her with the payment for bringing the ashes and the water or with the payment for filling the water. Likewise, one who betroths with the dung of a stoned ox – she is betrothed; and even though it is forbidden for benefit, its dung is permitted as it is not a significant thing relative to the ox. But one who betroths with the dung of calves of idolatry – she is not betrothed, for even the dung is forbidden for benefit, as it is said, "And let nothing of the banned property cling to your hand" (Deuteronomy 13:18). But one who betroths with the hide of a stoned ox – she is not betrothed, for the Torah forbade even the hide for benefit.

Our teacher, the Rema, wrote in section 21: A community that instituted and made an agreement among themselves that anyone who betroths without ten or the like, and one transgressed and betrothed – we are concerned for the kiddushin and she requires a get, even though the community explicitly stipulated that his kiddushin should not be kiddushin and they declared his money ownerless; nevertheless, one must be stringent in practice. Thus far his words. The explanation of his words: It is not only that if they imposed a prohibition regarding this that it is nothing, for their prohibition is no greater than a Torah prohibition and behold kiddushin is effective for those liable to a negative commandment, but even when they instituted and declared the money of the kiddushin ownerless—since the abandonment of property by a beit din is valid abandonment and all the leaders of the city in their city are considered like the Great Beit Din as is written in Choshen Mishpat siman 2—nevertheless, it is difficult to annul kiddushin. For there are those who say that the abandonment of property by a beit din is only in the beit din of Rabbi Ami and Rabbi Assi who were powerful enough to expropriate property, but others are not. And even though "you have only the judge who is in your days" – this is when there is no one as great as them in the generation, but if there is in their generation one as great as them – it is not in our power to expropriate property [Mordechai, first chapter of Bava Batra in the name of Rabbeinu Tam].

He further wrote: A woman who vowed benefit from a certain man, or from anything that they give her not in the presence of so-and-so and so-and-so, and one person transgressed and betrothed her—she is not betrothed, for it is as if he betrothed her with prohibited items of benefit, and specifically when he betrothed her with the law of money; but if he betrothed her with a shetar—it is a betrothal. Thus far his words. And specifically when she said that everything they give her not in the presence of so-and-so and so-and-so shall be "like hekdesh" or "like a konam," but if she did not say with the letter kaf of comparison but rather it shall be "hekdesh"—there is a doubt whether her intention was for actual hekdesh and her words are nothing, for a person cannot consecrate something that is not in his possession, or if her intention was that it should be like hekdesh; therefore, one should not release her without a get. And that which he wrote that if he betrothed her with a shetar it is a betrothal, his reasoning is that since we establish that if one wrote a get on prohibited items of benefit it is valid, for even though regarding a get it is written "and he shall place it in her hand" (Deuteronomy 24:1), nevertheless, since this placing is not a placing of monetary value, it is called "placing" even when it is prohibited items of benefit; likewise, kiddushin of a shetar, which does not require the placing of monetary value, is called the placing of a shetar of kiddushin. However, in siman 32, our teacher, the Rema himself, wrote a dispute regarding this, see there; and some say that here it deals with rabbinic prohibited items of benefit and later it is regarding Torah prohibited items of benefit, and there is support for this from the Yerushalmi in the first chapter of Kiddushin, but it is impossible to say so, for the Yerushalmi also in Gittin makes this distinction and we do not rule thus, as I wrote in siman 124; therefore, there is one who says that his intention here is not regarding certain kiddushin, but rather in contrast to kiddushin of money which certainly do not take effect, regarding this he says that with kiddushin of a shetar they take effect, meaning that for stringency it is a betrothal and not for leniency, as I wrote in siman 32. However, this is obvious, that she is forbidden to marry this person from whom she vowed benefit and she requires a get. And it is also possible to distinguish here from siman 32, for in vows we follow the language of people, and ordinarily when she said "from everything they give her," the intention was only regarding the giving of coins and objects, for this is called "giving" in the language of people, and regarding kiddushin of a shetar it did not enter her mind. And besides this, the primary halacha is that if he betrothed her with a shetar with Torah prohibited items of benefit it is a betrothal, like with a get, but in practice, due to the gravity of a married woman, he was concerned in siman 32 to bring also the second opinion; but for the halacha, it is proven in the Gemara that Gittin and Kiddushin are equal in this. And even if the Yerushalmi distinguishes between a rabbinic prohibited item of benefit and a Torah one, the primary view is like our Gemara, and in my humble opinion, the Yerushalmi can also be explained thus, that even with a Torah prohibition she is betrothed and divorced. And from these words of our teacher, the Rema, one should learn that in a place where there are lawless Jews and there is a concern that they will seize virgins and betroth them, and she, due to panic or her lightheadedness, will not protest and will not throw the kiddushin from her hand immediately, to teach them that they should forbid upon themselves everything they receive from others without the knowledge of their parents with a konam and hekdesh; and to be concerned that they will betroth them with a shetar is not common, and thus several great ones have done.