Siman 29

The money of the kiddushin must be given to her as an absolute gift, and if he gave it to her on condition that she return it—it is not kiddushin. And even though for the entire Torah a gift given on condition that it be returned is considered a gift, as was written in Orach Chaim siman 558 regarding an etrog, for the gift is a permanent acquisition like all gifts, and that which he said "on condition that you return it" is a condition like all conditions—nevertheless, regarding kiddushin the sages, of blessed memory, said [6b] that she is not betrothed. And the reason is because a woman is not acquired through chalifin, for the woman does not acquire herself through them because she receives nothing, as the sudar returns to the owner, and so too here with a gift on condition that it be returned, it is like chalifin in that she receives nothing [Ran according to the Ram]. And so it is explained from the wording of the Rambam, chapter 5, law 24, who wrote: One who says to a woman, "Behold, you are betrothed to me with this dinar on condition that you return it to me," she is not betrothed, whether she returned it or did not return it; for if she did not return it, the condition was not fulfilled, and if she returned it, behold she did not benefit and nothing reached her hand. Thus far his words. And even though it is possible that the benefit until the time she returned it was worth a perutah, nevertheless, he did not betroth her with this benefit but with the object itself [Rashba].

And according to this, if he gave her a gift on condition of return and said to her, "With this benefit that you enjoy during the time, behold you are betrothed to me" – it is a betrothal, for the benefit remains with her, and so wrote our teacher, the Rema, in section 1. And even though in chalifin itself, even if he wishes to leave her the kerchief, it is not a betrothal, for since one acquires with a vessel even if it does not have the value of a perutah, as written in Choshen Mishpat siman 195, the acquisition of chalifin is not included in "When a man takes" which the Torah wrote regarding marriage, and so agreed most of our teachers [Tosafot and Ran at the beginning of Kiddushin]. And it appears to me that for this reason the Rambam did not need to mention at all the law of chalifin, that a woman is not betrothed with it, because it is not included in the acquisition of money that would be included in "When a man takes," and just as he does not need to mention other acquisitions that exist in sales which do not apply to betrothal, so too he did not need to mention this; nevertheless, in a gift on condition of return, which is not actual chalifin but rather similar to chalifin, if he betrothed her with the benefit, she is betrothed, and this is not a matter of chalifin at all [it appears to me].

And behold, from the words of the Rambam it is explained that with a gift on condition of return, there is not even a scent of kiddushin, but there are some of our teachers who hold that by Torah law she is betrothed with a gift on condition of return since it is called a gift, but the sages decreed and nullified the kiddushin because of the decree that they might say a woman is betrothed through chalifin; for since there is a similarity to chalifin in the returning of the object to his hand, they decreed so. And according to this, it appears that even if he betroths her with the benefit she will enjoy during that time, since he mentioned a gift on condition of return, the decree of chalifin applies to it. And it appears to me that this is the reasoning of Rabbeinu Yerucham who brought two opinions on this, see there. But from the words of our teacher, the Rema, who did not bring the other opinion at all, it is proven that he holds that according to all interpretations, once he mentioned the benefit of use during that time, the decree of chalifin no longer applies here, and the law requires further study. And the difficulty of the Chelkat Mechokek, subsection 3, we settled in siman 28, section 77, see there. See in the Biur HaGra, subsection 2, that according to the Tosafot and the Rosh, even with the benefit she is not betrothed, and according to this, in practice one should be stringent.

And regarding the matter of chalifin itself, there are some among the early authorities who hold that when the sages said a woman is not acquired through chalifin—this refers to a case where it is like standard chalifin, where the buyer transfers the sudar to the seller and the seller transfers his merchandise located elsewhere to him in exchange for this and it is a kinyan, and the buyer is obligated to give money according to the value of the merchandise; and so too here, that he betroths her with an object and does not give it to her now, but gives her the sudar through a kinyan of chalifin to transfer the object and she transfers herself to him and he becomes obligated in the object, for this chalifin is not through the law of silver but through the law of kinyan. However, if he betrothed her with this sudar through the law of a kinyan of chalifin—she is betrothed with it, for since she took hold of three by three she can take this, and this is not through the law of kinyan but through the law of silver [Tosafot Rid and Shiltei HaGiborim]. However, from all the early authorities it does not appear so; on the contrary, the plain meaning of a kinyan of chalifin through which a woman is not betrothed is that he gives her his sudar through the law of kinyan, and she transfers herself to him. And on the contrary, if he betroths her with another object and transfers the object to her by means of a kinyan sudar and says to her, "Behold, you are betrothed to me with such-and-such an object, and I transfer it to you through a kinyan sudar," it is possible that it is kiddushin, and it will be explained regarding this with the help of Heaven in this siman [see Beit Shmuel] subsection 2, and what was written in the name of the Mordechai, it appears to me that his intention was that he did not mention chalifin at all, see there. And so too there is one who says that in a case of a gift on condition that it be returned she requires a get from him [see Chelkat Mechokek subsection 1], but in the words of our teachers it is explicitly stated to the contrary, that even those who hold that by Torah law it is kiddushin, nevertheless the rabbis annulled the kiddushin from him [and so wrote the Beit Shmuel there].

There is one who says that this which was explained, that with "on condition of returning" they are not kiddushin—this is specifically when he doubled the condition, for otherwise the condition is void and the act is established [Bach] as written in siman 38, and it was explained in Choshen Mishpat siman 207 that any condition that is not like the condition of the children of Gad and the children of Reuven is not a condition; and it is also necessary that there be in this all the laws of conditions, such as the positive preceding the negative and the condition preceding the act, see there. However, according to the one who holds that with "on condition" one does not need all the laws of conditions, as written there, it is well even if he did not double it. And even according to the one who does not hold so, nevertheless, in a case of a proven assessment that he only gave it on this condition, one does not need the laws of conditions and a mere disclosure of the matter is sufficient, as written in Orach Chaim siman 658 regarding an etrog [Beit Hillel]. And one cannot say that regarding an etrog there is certainly a proven assessment that he gives it on condition of returning since he himself needs it for the next day, but here there is no proven assessment; for here too there is a proven assessment that he only gives it to her in order to betroth her with it since he says so explicitly. And granted that when he betroths her with a perutah there is no assessment here, but when he betroths her with a large sum, where such kiddushin are not common—it is certainly a proven assessment when he says so [see Chelkat Mechokek]. And also one cannot say that since in kiddushin "on condition of returning" is not effective, there is no longer a proven assessment, and on the contrary, there is more reason to say he intended a complete gift [see Avnei Miluim]; for if so, why did he say "on condition of returning" at all? Behold, we see that he did not concern himself with this or that he does not know the law, and how can we judge this law of assessment based on the primary law of kiddushin, when this is what we are judging?

However, there are some among the Rishonim who do not hold that the reason here is an assessment of intent, and even regarding an etrog they wrote that we require a double condition [the Rosh, chapter Yesh Noachalin, section 48]. However, even if we say that without a double condition the condition is void and the act is established, nevertheless the kiddushin do not take effect, for behold, the woman did not resolve her mind and did not know that the act is established and the condition is void, as she believes she is obligated to return it to him [Beit Shmuel], for do women learn the law? And it is like one who effects kiddushin with the debt of others, where she is not betrothed for the reason that she did not resolve her mind, as she believes he will forgive the debt, as written in siman 28, section 54; so too here, she did not resolve her mind. And it is not similar to all the conditions in siman 38, where we hold that if he did not double his condition, the kiddushin are valid and his condition is void, for there the kiddushin are complete kiddushin and the condition is not in the essence of the kiddushin, but here the condition is in the essence of the kiddushin [ibid.]. However, it could be said that even according to what she believes, it is a gift on condition of return, which by Torah law is kiddushin, except that the sages voided the kiddushin because it resembles barter; and here, according to the truth, this is not on condition of return and does not resemble barter, only she believes so, the kiddushin should take hold [ibid.]. Nevertheless, since according to what she believes there are no kiddushin here according to the enactment of the sages, and also according to the opinion of the Rambam that we cited, even by Torah law it is not kiddushin, it can be said that it is not kiddushin—and therefore it is a case of uncertain kiddushin [it appears to me].

And there is one of the great authorities who said that in every place where we require a double condition, if one did not double it, although the act is valid, nevertheless one is obligated to fulfill the condition because of his word, and this is similar to hiring. And he brought a proof from the law of chalitzah on condition, which will be explained in siman 169, that there is no condition in chalitzah, and nevertheless it is explained there that she must pay him based on the law of hiring, and here too it is the same [Ktzot HaChoshen siman 241 and in Avnei Miluim subsection 1]. And according to this, in any case it would not be kiddushin since she is obligated to return it to him. But it is not clear to say so, for if so, the power of a double condition would be weaker than one that is not doubled; for with a double condition, if he wishes, he fulfills his condition along with the act, and if he does not wish, he fulfills neither the condition nor the act. But with one that is not doubled, where the act is valid against his will, if we say that the condition is also valid against his will, the power of a double condition would be much weaker than one that is not doubled. And the proof from chalitzah is no proof at all, for in chalitzah the matter concerns the woman alone and does not concern the man at all, and regarding the mitzvah, is it not within his power to perform yibbum and not chalitzah? It is only that she misled him because she did not desire to perform yibbum with him, and he exerted himself in the giving of chalitzah; therefore, she is certainly obligated to pay him like a common laborer. But in kiddushin, and similarly in buying and selling, where the matter concerns them both and both of them desire the matter, how does hiring apply to this? Furthermore, even in chalitzah he does not need to pay him according to the condition, but only according to the assessment of the exertion, and in chalitzah there is exertion, but what does this have to do with kiddushin and buying and selling? And also from all the Rishonim it does not appear so [and also the Netivot HaMishpat there rejected this, see there].

Our teacher, the Rema, wrote in section 1: But a woman who gave another a gift on condition of return after thirty days so that he may betroth her with it within the thirty, and he gave it to her within the thirty for betrothal – she is betrothed. Thus far his words. And the commentators wrote that regarding what he wrote, that she gave it to him in order to betroth her – this is not necessary at all, for even if she only lent it to him for his own needs and he betrothed her – she is betrothed. For the primary reason for one who is stringent regarding betrothal with a borrowed object is because it is similar to a gift on condition of return, as is written in siman 28 section 78, and here this does not apply, for it is hers and she will not return it. They further wrote that it was not necessary at all to say that the gift was until thirty days, for even if she gave him a plain gift on condition of return – he can betroth a woman with it, as is written there in section 80, for the decree of exchange is only when he betroths her on condition of return, but one who possesses a gift on condition of return can betroth.

And to me it seems that the primary view is like the words of our teacher, the Rema, for if the gift were not until thirty days, and at every moment when he returns it to her it is truly hers—if so, with what does he betroth her? For behold, this is exactly like one who betroths her with her own object, which is not a betrothal, since at every moment that he returns it to her it is as if the time for return has arrived; and it is not similar to one who betroths a woman with an object that another gave to him as a gift on condition to return. And that which it was necessary to say, that she gave it to him in order to betroth her, certainly if he betrothed her within thirty days and she said "yes," or even if she remained silent but he said to her "Behold, you are betrothed to me with the benefit of the use of this object" and the benefit until thirty days is worth a perutah—she is betrothed even if she did not give it to him in order to betroth her. But if he said to her "Behold, you are betrothed to me with this object" and she remained silent and accepted it, if she did not give it to him in order to betroth her—this is nothing, for behold, he betrothed her with the object and the object is hers, and if because of the use—behold, he did not betroth her with the use; for it is well that regarding the gift of another we say that the object shall remain with her forever and he shall pay the giver as is written there, but not when the object is hers. But if she gave it to him in order to betroth her—even in such a case she is betrothed because the essence of her giving was in order to betroth her, and it is as if they spoke explicitly that he should betroth her with the benefit of the use. Nevertheless, if it were not until thirty days—it is not effective, for it is as if she said to him "Betroth me with my own object," since at every moment the time for return has arrived. [And with this it is settled why in the Responsa this was not mentioned, for there it deals with where she said "yes," and the Rema is teaching the law; and see Avnei Miluim and HaMakneh what they wrote on this, and examine it closely].

There is one who says that this is specifically when she gave it to him so that he would betroth her and there was no condition in the matter, but if she gave it to him as a gift on condition of return on the condition that he betroth her with this—she is not betrothed, since she explicitly stipulated that if he does not betroth her with this the gift is void, behold he gives her nothing, for in either case it is hers. And there are those who disagree on this, for this is like one who says "Behold I am giving you this object as a gift on condition that you acquire from me some other object with this object that I gave you" which certainly works, so too here she gave it to him on condition that he take her with this object. And it appears to me to decide that certainly if she gave him the gift for a period of time on condition that he betroth her with it within the time—it is like any other condition and she is betrothed, but if she gave it to him without specification on condition that he betroth her with it, if so at the time the betrothal takes effect, which is at the time he fulfills the condition, it is then the time of return, and it is truly hers and with what does he betroth her, as I wrote in the previous section, but if the gift is for a period of time, behold he betroths her with the value of the benefit of the use that he has until the time, and we assess if there is in this the value of a perutah—behold she is betrothed.

Even though he must give her the money of the kiddushin, nevertheless the Sages, of blessed memory, said [7a] that sometimes even if another receives the money for himself, she is betrothed by it. How so? If she said to him, "Give a maneh to so-and-so and I will be betrothed to you," and when he gave it to him, he said to her, "Be betrothed to me [Rashi] with the maneh that I gave to so-and-so [Rosh]" – she is betrothed even though no benefit reached her hand. For just as a guarantor becomes obligated to a lender even though he did not borrow from him, nevertheless, since he commanded to lend to so-and-so it is as if he lent to him; so too, when the woman commanded him to give to so-and-so, she becomes bound to marriage and it is as if he gave to her.

The Rambam, of blessed memory, wrote in chapter 5: A woman who said, "Give a dinar to so-and-so as a gift and I will be betrothed to you," and he gave it and said to her, "Behold, you are betrothed to me through the benefit of this gift that I gave according to your word" – behold, she is betrothed; even though nothing reached her, she benefited from her will being done and from so-and-so benefiting because of her. Thus far his words. And it appears that the Rambam did not mean specifically that he must clarify at the time of the kiddushin by saying "through the benefit of this gift that I gave according to your word," but rather even if he said "with the maneh that I gave to so-and-so" plainly, as he also wrote, it is effective. Rather, the Rambam is explaining what the kiddushin are and why they take effect: because of the benefit, and the benefit is worth a perutah. Just as a guarantor becomes obligated because of the benefit that the lender lent to so-and-so according to his word, so too she becomes betrothed through this benefit that he gave to so-and-so according to her word. It is the common way of the matter in such kiddushin to clarify the reason for the kiddushin, but the clarification of the matter is not a requirement. Furthermore, even if he said plainly "be betrothed to me" [as Rashi explained], it is also effective according to the Rambam and the other poskim. For just as in all kiddushin in general, when he gave her the ring and said to her plainly "behold, you are betrothed to me," even though he did not say "with this ring," it is effective; so too in these kiddushin when he speaks plainly. However, it appears to me that in such a case he must speak immediately upon his giving to so-and-so, but if they delayed a bit in the interim, he must clarify and say "be betrothed to me with the maneh that I gave to so-and-so" [as the Rosh] or "through the benefit of this gift" etc. as the Rambam. For if not so, it does not appear at all that he is betrothing her with anything [and according to what I have written, Rashi, the Rambam, and the Rosh do not disagree].

According to what has been explained, kiddushin occurs specifically when he says to her, "Be betrothed to me," but without his speech it is not effective. However, there are some among the Rishonim who said that even if he said nothing it is effective, for since she said to him, "And let me be betrothed to you," and he gave based on her words, it is no worse than one who speaks with her regarding the matters of her kiddushin, which is effective even though he did not specify [the Ran in their name], and as I wrote in siman 27, section 13. And it is not similar to where he gave and she spoke, which is not effective as I wrote there, for it is different there because he gave first and the matter does not prove that he gave it for the sake of kiddushin, and the proof of the kiddushin is from her speech; thus it turns out that with her speech the act of kiddushin was completed, and because of this it is not effective. But here, he performs the act of kiddushin entirely, for behold, with this giving she is betrothed without further speech, as her speech is like one who speaks with her regarding the matters of her kiddushin, which is effective even without specification [ibid.]. And the reasoning of the Rambam, Rashi, and the Rosh is that it is certainly obvious that where he gave and she spoke it is not effective to be certain kiddushin even when she spoke at the time of his giving into her hand, and even though he gave to her on that condition, nevertheless it is not effective. For it is not similar to one who speaks with her regarding the matters of her kiddushin, for there (also) it is when he spoke as well; but as long as he said nothing, even though his giving proves that he agrees to her words, it is not effective, for this is similar to her silence after the giving of the money, which is not effective even when he spoke and he gave in a case where we require her speech [ibid.].

From the words of our teacher, the Rema, who wrote regarding the words of our teacher, the Beit Yosef, which are the words of the Rambam—that if they were occupied with that matter, even though he gave without specification during its command, she is betrothed, thus far his words—it appears that these Rishonim do not disagree at all with the previous opinions, and they also admit that without his speech it is of no effect at all. They are truly speaking of when they spoke previously regarding the matters of the kiddushin and he also spoke regarding this, for in such a case everyone admits that the verbalization is not an absolute requirement. And know that when they spoke regarding the matters of kiddushin, then there is no need for her to say "give to so-and-so and I shall be betrothed to you," for "give to so-and-so" alone is sufficient. However, this is only when she was the one who initiated the matters of the kiddushin, but when he was the one who initiated speaking regarding the matters of the kiddushin and she replied "give to so-and-so"—it is not certain kiddushin, for it is similar to "give them to father or to your father," which will be explained in siman 30, where she is not betrothed. And perhaps in such a case, even when she concluded "and I shall be betrothed to you," it is not certain kiddushin, and we specifically require that she be the one who initiates [as is implied in Tosafot 8a s.v. Tenam l'Abba, and see Beit Shmuel subsection 7 and his words are garbled, and see Beit Shmuel siman 30 subsection 13, and it requires further study if so what is their difficulty, and as is implied in Rashi and in the Ran, see there; however, from the Rosh siman 13 it implies like the Beit Shmuel, and see there in Korban Netanel letter 61 and it requires great study].

Our teacher, the Rema, wrote that all this is specifically when she initiated by saying "give a maneh to so-and-so," but if he spoke to her first and she says "give to so-and-so" – see below siman 30, section 8. Thus far his words. And he means that there it is explained that in such a case it is not kiddushin, and it is explicitly explained from his words that there is no difference between whether she concluded "and I shall be betrothed to you" or whether she did not conclude so; for when he was the one who initiated, even if she concluded "and I shall be betrothed to you," we say that she was mocking him, for if not so, what is the relevance of this to siman 30. However, according to reason, it would seem appropriate to distinguish: that when she did not conclude "and I shall be betrothed to you" but rather "give them to so-and-so," it is like mockery and like one who says "give them to whomever you wish and I have no involvement in kiddushin," but when she concluded "and I shall be betrothed to you," this is not like mockery. However, from the words of our teacher, the Rema, it does not imply so [and so it appears from Rashi, Tosafot, and the Ran, as I wrote in the previous section]. Nevertheless, it seems that his intention is that they are not definite kiddushin, but they are at least kiddushin of doubt [and behold, in the Rosh there it explicitly implies so as I wrote, and in general one must further contemplate the Beit Shmuel as I wrote, and even more so the words of the Rema].

He wrote further: If she said to him, "Lend a maneh to so-and-so and I shall be betrothed to you," and he lent to so-and-so and said to her, "Behold, you are betrothed to me with it" – it is a betrothal just as in the case of a gift. However, if he extended the time of a loan based on her word and betrothed her with it – she is not betrothed. Thus far his words. For since the reason for this betrothal is like the reason for a guarantor, as I wrote in section 11, and behold, even regarding a guarantor in such a case he does not become obligated, for a guarantor only becomes obligated when he lent to him based on his word, for he lent to him based on his trust and not based on the extension of time [Chelkat Mechokek in the name of the Rashba], for a guarantor not at the time of the giving of the money does not become obligated, as is written in Choshen Mishpat siman 129, see there. And they questioned this, for ultimately the extension of the time of the loan is worth a perutah, as is written in siman 28 regarding one who betroths with a loan, and if so, behold, so-and-so benefited the value of a perutah through her and she benefited a benefit worth a perutah, and what is the difference between this and lending based on her word, and what does this have to do with a guarantee [Taz and Chelkat Mechokek]. And furthermore, in Choshen Mishpat there it is not explained at all that with an extension of time he is not a guarantor, rather only when he guarantees for the entire principal not at the time of the giving of the money is he not a guarantor, but regarding an extension of time, why should he not be a guarantor [Chelkat Mechokek]. And there is one who says that certainly if he said to her, "Be betrothed to me with this benefit that I extended time for so-and-so based on your word" – behold, she is betrothed. But if he said simply, "Be betrothed to me with the extension of time that I extended" etc. and did not say "with this benefit" – she is not betrothed, for at the beginning of the loan or the giving, even though he did not specify "with the benefit," presumably he betroths her with the benefit, but regarding an extension of time one must specify, and it is in such a case that our teacher, the Rema, is dealing [HaMakneh]. And there is no correct reason to distinguish in this, for whichever way you look at it – if she has a benefit in the extension of time for so-and-so just as in the loan itself, why should we not say also in this that presumably his intent is to betroth her with the benefit.

And it appears to me that he did not intend to literally compare this law to guarantee, for if so, let us say that when she accepted it with a kinyan in such a case it would be kiddushin, just as with a guarantee one becomes obligated in such a case as is written in Choshen Mishpat there; and in any such case he should have explained it, for this would be a great novelty—that the kinyan would cause the kiddushin even though a woman is not betrothed through chalifin. Rather, this is its explanation: that certainly when the woman came first to him and said to him, "Extend the time for so-and-so and I will be betrothed to you," she is betrothed, for there is no difference between a loan and the extension of time. Rather, our teacher, the Rema, is dealing with a case where this person claimed from the borrower and pressured him to pay, and she saw his distress and said to him, "Extend the time for him and I will be betrothed to you," for this is not considered a monetary benefit to her, as she only did this to save the borrower from distress. And even though it is possible that she entered into a guarantee, such as by accepting it with a kinyan, nevertheless this is irrelevant to kiddushin, for this is not a benefit to her but rather the saving of the borrower's distress. Therefore, even if he said to her, "Be betrothed to me through this benefit," it is nothing [and therefore the Rashba in Responsa siman 1,225 compared it to one who is choking, even though they are not related to one another as the Chelkat Mechokek wrote, but rather to explain the reason that there is no benefit here, and examine this closely].

Nevertheless, regarding the law, one should not be lenient against the opinion of the great later authorities, and it is a case of questionable kiddushin in such an instance. Furthermore, who is to say that in such a case it is not called a benefit? Perhaps the relief of another's distress is a greater benefit than the loan itself. The reasoning of our teacher, the Rema, appears to be that the performance of a mitzvah, such as the relief of another's distress, is not called money regarding kiddushin. Nevertheless, in practice, one should not be lenient in this, and it is a case of questionable kiddushin.

And just as we have explained that sometimes a woman is betrothed even though she herself did not receive the kiddushin money, and we derive this from the law of a guarantor, so too the sages, of blessed memory, said [ibid.] that sometimes she is betrothed even though he did not give the kiddushin money, but rather another person gave it to her. And we derive this from the law of a slave, for just as a slave who acquires himself to go out to freedom with money, acquires even if others gave on his behalf, as is written in Yoreh Deah siman 267, so too if another man gave her a maneh and said to her, "Take this dinar of mine and with it be betrothed to so-and-so" – she is betrothed when she receives it. And this is specifically when that so-and-so made him an agent to betroth her [Rashi], for if not so, who gave him permission to betroth her on his behalf? And this is not in the category of "one may act to a person's benefit in his absence," for this is not a benefit, as sometimes he does not desire her, and also he becomes obligated to her for food, clothing, and conjugal rights; and furthermore, it is not pleasing to him that he should be forbidden to her relatives [Rashba]. And also if he did not make him an agent, but that so-and-so said to her afterward, "Be betrothed to me with the maneh that so-and-so gave you" – she is betrothed [the Rambam].

And from these two laws we have learned yet a third law, that sometimes even if he did not give and she did not receive—she is nonetheless betrothed. How so? If she said to another, "Give a maneh to so-and-so and I shall be betrothed to him," and this person gave it to that so-and-so, and that so-and-so betrothed her and said to her, "Behold, you are betrothed to me through the benefit of this gift that I received at your will"—behold, she is betrothed, for this benefit is worth a perutah to her. And this is similar to what was explained in siman 27, section 39, regarding a case where she gave to him and he betrothed her through the benefit of this gift that he received from her; and there it was explained that this applies specifically when he is an important person, but here even if he is not an important person. For there, where she lacked the money that she gave to him from her own, if it is not an important person, with what would she be betrothed? But here, where others gave to him according to her command, she is certainly betrothed through the fact that her wish was fulfilled, and this itself is worth a perutah.

If he said to her, "Be betrothed to me with a maneh," and gave her a pledge for the maneh—she is not betrothed. And thus our Sages, of blessed memory, said: The maneh is not here, the pledge is not here; meaning, for behold a woman is acquired with silver, and the silver is not present, so how shall she be betrothed? For the pledge does not take the place of the silver since it will not remain in the woman's hand. And according to this, if he said to her, "Be betrothed to me with this pledge, and the pledge shall be yours"—she is betrothed, since he gave her a right in the body of the pledge. And it is like a pledge of others with which she may be betrothed, as I wrote in siman 28, section 56, because a creditor has a kinyan in the body of the pledge, and here too it is similar. But there are some of our teachers who hold that even in such a case it is not effective here, for a person can subject his property to a matter for which he is already obligated, as with a creditor; but regarding a matter for which he is not yet obligated, a lien does not take effect upon his property. And when he spoke to betroth her, he was not yet obligated to her, just as with a gift when one says he will give him a gift. See there, and see what I wrote in section 25.

However, even according to this opinion, if he gave her a pledge and said to her, "Acquire with this pledge a lien of a maneh and be betrothed to me with it" – she is betrothed [the Ran in the name of the Ra'avad], because prior to the kiddushin he obligated himself for a maneh, and a person can obligate himself; consequently, the pledge became liened, and the kiddushin properly take effect, as it is like the pledge of others. And there are some of our teachers who hold that even in such a case it is not effective [ibid. in the name of the Ramban, and so wrote the Rashba], for they interpret that which the sages said, "there is no maneh here, there is no pledge here" – meaning that since that maneh with which he betroths her is still with him, and kiddushin money that is tied to the husband is not kiddushin money, it is as if there is no pledge here; for even though she acquires the pledge for the lien of the maneh, nevertheless she is not betrothed thereby, for since the maneh is not with her – the pledge is also nothing [ibid.]. And according to this, other obligations also would not be effective, such as if he gave her a deed for the maneh, it is nothing since the maneh is tied to him; but according to the first opinions it is effective [Chelkat Mechokek, subsection 8], and therefore it is a case of uncertain kiddushin [ibid.].

According to what has been explained, the words of our teacher, the Rema, are perplexing, as he wrote that all the more so if he gave her a document for the dinar it is not kiddushin, and afterwards he wrote: if he said to her "Behold you are sanctified to me with a dinar and you shall acquire it through the body of the pledge that I am giving you for it" – behold she is sanctified. Thus far his words. And behold, according to the previous opinions she is sanctified when he gave her a document, and according to the latter opinion, even granting acquisition in the body of the pledge is not effective; and how could he write two contradictory things? And already the commentators [Beit Shmuel and the Gra, subsection 14] have wondered about him.

And it appears to me that his words are correct, for with a document that he gave her for the dinar without a pledge, according to everyone she is not betrothed, as there is no physical object here such that we could say that with this thing she is betrothed. For even according to the opinions that are not concerned with that which is bound to the money of the kiddushin, nevertheless, this is when there is some physical object present that is worth money and she has a lien upon the body of the object, such as a pledge. But this promissory note, how would it avail for the kiddushin? And it is not similar to a promissory note of others, which, were it not for the reason of forgiveness, she would be betrothed with it, as I wrote in siman 28 section 54; that is because something new is added to her regarding others, and granted that the object is not physically present, nevertheless she has something new, namely money with others, as I wrote there. But this new thing that was added to her remains entirely with the one performing the kiddushin, and to her he has not yet given anything, so with what would she be betrothed? And even if the paper is worth a perutah, there is no kiddushin here, for he did not betroth her with a promissory note as such, but rather with a maneh, and for the maneh he gave a promissory note [see Chelkat Mechokek end of subsection 8, and it requires further study].

And that which he wrote, that when he says to her "Acquire the body of the pledge" she is betrothed, he holds that in this everyone agrees, and our teachers only differ regarding a lien on the pledge for the reasons that were explained; but if he said that she should acquire the body of the pledge, it is like hers entirely, even though if he pays her the dinar she will be forced to return the pledge to him, for if not so, it does not have the status of a pledge. Nevertheless, as long as she has not returned it, it is like hers entirely, and when she returns it to him, it will be like a sale. And that which we wrote in section 21, that when he says to her "Let the pledge be yours" there are those who disagree with this, our teacher, the Rema, does not hold so, and they only differ when they mentioned the term "lien." And if he did not say "Acquire the body of the pledge" but rather "Do not return the pledge to me until I give you such and such," some say it is like one who said "Acquire the body of the pledge," and some disagree on this, and only regarding a gift is it effective in such a case that he should not return it to him until he gives him the gift, but not regarding kiddushin, and so it appears primary.

If one said to a woman, "Be betrothed to me with a maneh," and gave her immediately a dinar and no more—she is betrothed immediately when she took the dinar, and he is obligated to complete for her the ninety-nine dinarin, for this is like one who said, "Behold you are betrothed to me with this dinar on condition (al menat) that I give you a maneh," where she is betrothed from now, as anyone who says "on condition" is like one who says "from now." And one cannot say that they did not intend to finalize the kiddushin until the giving of the maneh, for if so, she would not have accepted one dinar from him, and also why did he give it to her? Rather, certainly they intended this for the sake of kiddushin and the remainder is like a condition. And even though he did not mention the laws of conditions, we judge it as if he stipulated and doubled the condition [the Rosh, first chapter, section 9] and all the laws of conditions. And all the more so according to the one who holds that with "on condition" one does not need the laws of conditions, as I wrote in siman 38. And even according to the one who does not hold so, nevertheless here one does not need the laws of conditions, for it is even better when he did not mention an explicit condition but rather his actions prove his intent than one who mentions a condition not according to the manner of the condition written regarding the children of Gad and the children of Reuven [the Rashba, Gittin 75]. And this is according to what is written in Choshen Mishpat siman 207, section 5, that there are matters where a disclosure of intent (giluy da'at) is sufficient and one does not need a condition for this, see there. And even according to those who disagree on this and hold that a disclosure of intent is not better than a condition that was not doubled [the Ramban and the Ran there], nevertheless they admit in this, for in truth this is not in the category of a condition, since he did not separate the dinar from the ninety-nine dinarin, for "Be betrothed to me with a maneh" he said to her. Rather, we say that since she accepted one dinar, it proves that they did not want to wait for the finalization of the kiddushin until the full maneh. But how can we say that it requires the laws of conditions, and if not, the condition is void and the act stands, and she would be betrothed even if he did not give her afterwards the ninety-nine dinarin? Did he betroth her with a dinar? For granted, in all conditions we uphold his words of the kiddushin and void his condition, but here we would need to void the essence of his words of the kiddushin—and this is impossible. Therefore, we say that the kiddushin are valid immediately and he is obligated to give her the remainder, and if he does not give it, the kiddushin will be void. And the practical difference is that she cannot retract, and he can give her the remainder against her will [see Avnei Miluim subsection 14 and subsection 1, and see what I wrote in section 7, and it appears to me as I have written].

In what case is it said that she is betrothed with one dinar? When he said to her, "Be betrothed to me with a maneh" without specification. But if he specified and said to her, "Be betrothed to me with these hundred dinarin," she is not betrothed until he completes the delivery of the entire maneh into her hand. And regarding the dinar she received, even though she has not received more for now, her intention was not to be betrothed with it until the entire maneh is delivered. And so too, even if he said to her, "Be betrothed to me with a maneh" without specification and began to count into her hand, even if he stopped in the middle and paused for a long time and she remained silent, we do not say that she consented to be betrothed with a partial amount. For since it is the way of the world to continue counting one after another, certainly her intention was for the whole amount, and she was not concerned by the fact that he stopped in the middle of the matter, as she knew that the kiddushin would not be completed until he counted all of them into her hand. This is the opinion of the Tur and our teacher, the Rema, and thus indicates the sugya of the Shas [8a].

But the Rambam, of blessed memory, wrote in chapter 7: When does this apply? When he said to her "with one hundred dinarin" without specification, but if he specified and said to her "Behold, you are betrothed to me with these one hundred dinarin" and began to count into her hand – she is not betrothed until he completes the hundred for her, and even at the final dinar both of them can retract from one another. Thus far his words. And he holds that two things are required – that he says "these" and also that he counts into her hand, but without both things – she is betrothed with the first dinar, and so wrote our teacher, the Beit Yosef, in section 7. And some say that even according to the Rambam the primary matter depends on his saying "these dinarin," and then even if he was not counting into her hand – she is not betrothed until the completion of the hundred, but with "a maneh" without specification, even if he was counting and then stopped and she remained silent – she is betrothed even with one dinar [Chelkat Mechokek and Beit Shmuel]. And some say that according to the Rambam specifically two things are required, and even if he said "these dinarin" without counting, she is betrothed with one dinar, and all the more so with "a maneh" without specification while counting [the Gra], and so it is implied in the Tosefta brought by the Rif, see there. And the reason is because he holds that she should have said when he stopped giving and said "I do not consent to be betrothed for less," and since she remained silent she presumably consented that the kiddushin be finalized immediately and he would give her the remainder afterward; but with "these dinarin" and he is counting, or "this maneh" and he is counting – it is obvious that she did not see fit to answer him [it appears to me explaining what is written there "here we are dealing with 'this maneh'" refers to the maneh of the Baraita, and Rav Ashi comes to disagree, and the halacha is like the anonymous voice of the Shas].

And in a case where she can retract, such as "with these dinarin" or where he is continuously counting according to the Tur, and according to the Rambam "with these dinarin" alone according to the first opinion and in both matters according to the latter opinion—even at the final dinar both of them can retract unless he said to her that what I have not completed shall be upon me as a loan and she explicitly consented, for then the kiddushin are finalized; and specifically when she said "yes," but if she remained silent, even though she did not say "no"—this is not certain kiddushin, and more will be explained regarding this [it appears to me that what is written in the Shulchan Aruch section 7, "a missing dinar," means what he did not complete, and "missing" is not literal, and the difficulty of the Gra in subsection 21 is settled, see there].

Regarding "these dinarin" or if he counts them out according to the Tur, and according to the Rambam in both cases together as we have written, the same law applies if he placed them all into her hand and she counted them and it was found that a dinar was missing, or one dinar among them was of copper or some other bad thing—she is not mekudeshet unless she recognized the dinar initially, that it was bad or that it was copper, and presumably she consented to this, or that after she saw it she reflected and accepted it. And there is no difference between one copper or bad dinar or many dinarin, for if she reflected and accepted—she is mekudeshet. And so too if he said to her, "Be mekudeshet to me with this maneh," and she saw what was in his hand, and according to the appearance it was evident that there was not a maneh here, such as if it was missing a great deal, and she reflected and accepted them into her hand—she is mekudeshet [Beit Shmuel, subsection 17]. And in this case, when a copper or bad dinar is found and she can spend it with difficulty, behold she is mekudeshet and he shall exchange it; however, if he did not exchange it, there is no hindrance to the kiddushin [ibid.]. But regarding a copper dinar, it appears that it is impossible even with difficulty to spend it as a dinar if they inform the recipient that it is of copper, and there are no kiddushin here; and only a bad silver dinar is it possible that they might spend it with difficulty to one who is not so particular [it appears to me].

And regarding this law where it was found missing a dinar, or one of copper, or a bad one in the previous law, when he said to her, "Behold, you are betrothed to me with one hundred dinarin" without specification, some say that its law is like when he gave her one dinar, that she is betrothed; and it is an a fortiori argument, for if with one dinar we say that she was reconciled to be betrothed, all the more so when one dinar is missing. And some say that, on the contrary, when a dinar is missing it is worse and she is not betrothed, and specifically when he gave her only a dinar we say that she was reconciled to be betrothed with this dinar and he shall pay her the remainder when she claims it from him, but when only a dinar is missing she will be ashamed to claim it from him and therefore her mind was not at ease and she is not betrothed until he completes the dinar for her, and before this she can retract. And it appears that according to this opinion, it is not specifically a dinar in the case of missing one dinar, for the same applies to slightly more than one, as long as it is not a lot, she will be ashamed to claim it from him; and it is difficult to limit the measure of how much she will be ashamed to claim [see Rashi 47a, s.v. "she is ashamed etc." that a small matter etc.]. And the opinion of the Rambam appears explicitly like the first opinion, see there [and see Lechem Mishneh there].

There is one who says that even according to the first opinion, there are some of our teachers who hold that specifically if the one performing the kiddushin accepted the dinar upon himself as a debt, then she is מקודשת, but otherwise she is not מקודשת; and there are some of our teachers who disagree on this. And it appears to me that all are equal in this, for according to the first opinion there is no difference between whether he accepted it upon himself as a debt or did not accept it, for according to this opinion, in a case of "less a dinar" it is as if he gave only a dinar, and there, even if he did not accept it upon himself as a debt, it is automatically so, that the remainder remains upon him as a debt, and here too it is so. [And that which Rashi wrote on page 47a regarding "less a dinar" when he said "behold it is a debt upon me," is because the language of the Baraita is such, see there; for behold in the first chapter, page 8a, he did not write so, and what is the difference between this and that? And examine this closely.]

There are some of our teachers who hold that in a case where she is able to retract, even if she did not retract explicitly but rather remained silent—the kiddushin are nullified automatically [the Ramban and the Ran], and there are some of our teachers who hold that specifically when she retracted explicitly, but if she remained silent the kiddushin are not nullified [Rashi]. Therefore, there is one who says that that which was explained in section 29, that when she consented and said "yes" the kiddushin were finalized—this is only according to the latter opinion; but according to the first opinion that the kiddushin were nullified, her consent is of no avail unless he betrothes her anew and she says "yes" [Beit Shmuel, subsection 16]. Likewise, according to the latter opinion, if he betrothed her anew and she remained silent—it is a case of uncertain kiddushin, for it can be said that she relied on his previous speech, and it is not like silence after the giving of the money since the kiddushin were not nullified, unlike the one who disagrees on this [ibid.]. However, according to the first opinion that the kiddushin were nullified, it is of no avail at all even if he betrothed her anew when she remained silent; for since the kiddushin were nullified and the money is like a deposit in her hand, of what avail is her silence? For it is silence after the giving of the money [ibid., subsection 19].

But from the words of our teacher, the Rema, in section 7, it is explained that even according to the first opinion it is a case of doubtful kiddushin when he betrothed her anew and she remained silent; and it is also implied from his words that when she consented and said "yes," it is effective even according to the first opinion even without betrothing her anew. And it appears that his reasoning is that in truth this is not an actual cancellation of kiddushin even according to the first opinion, but rather that what he betrothed previously was not fulfilled, and this is not similar to a deposit where we would judge in this case the law of silence after the giving of money. Therefore, even when she consented and said "yes," even though he did not betroth her anew – it is effective according to all opinions, and it is no worse than if he spoke with her concerning matters of kiddushin, and we consider the money in her hand as money of kiddushin. And so it appears from the perspective of logic; however, regarding the law, one must be stringent according to all the opinions.

One who says to a woman, "Be betrothed to me with this dinar on the condition that I complete for you a maneh," and she says, "On the condition that you complete for you two hundred," and he stipulated with all the laws of conditions—or according to the one who holds that with "on the condition" one does not need the laws of conditions, as I wrote in siman 38—and they did not reach an agreement between them, and afterwards they claimed from one another and he betrothed her and gave her the dinar and they did not mention the condition: if the man claimed from the woman, the words of the woman shall be done and he must complete for her two hundred, and if not, she is not betrothed; and if the woman claimed from the man, the words of the man shall be done and he completes for her only a maneh, for presumably the one who claimed agreed to the words of the second; and it is similar to this in buying and selling, as I wrote in Choshen Mishpat siman 221. And if they previously reached an agreement between them and were ready for the kiddushin, and one of them retracted and sought to add or subtract and they separated from one another, and afterwards the second side claimed and he betrothed her without specification, we do not say that he consented to fulfill the will of the second, but rather it is based on the first fixed agreement, and also the second certainly intended thus since they previously reached an agreement between them, for such is the law also in a sale as is written there. However, we have already explained in Choshen Mishpat there, section 3, that there are those who disagree on this, see there, and according to this there is reason to doubt also in kiddushin regarding this law; and even according to what I wrote there that the main point is like the first opinion, that is for the reason of grievances as I wrote there, and in kiddushin grievances are not applicable, and therefore it requires further study as to the law. And regarding the entire essence of this law, it appears to me that it deals with a case where when he betrothed her afterwards with the dinar there was proof that he betrothed her based on the first condition, such as if it was close to the first words or they mentioned that he betrothed her based on the first condition; but if the matter was prolonged and he betrothed her afterwards with a dinar without specification, from where do we have reason to say that he betrothed her based on the first condition? Perhaps he betrothed her without any condition at all, and it requires further study as to the law.

If one betrothed a woman with a certain object and within this object there was another object, if he said, "Be betrothed to me with this"—it is obvious that he betrothed her with both things, and if one of the objects is not his, she is not betrothed. However, if he mentioned only the outer object, if it is not the way of the two objects to be used together, it appears that he betrothed her only with the object he mentioned and not with the second one. But if it is their way to be used together, then it depends on the matter, like liquids in a vessel which are common to be together. If he betrothed her with a goblet of liquid and mentioned only the cup, saying to her, "Be betrothed to me with this cup," the sages, of blessed memory, said that if the cup was full of water, she is betrothed with the cup and with the water and they both combine to the value of a perutah, for the water is nullified to the cup and presumably he intended for the water as well. And if it was full of wine, the wine is not nullified to the cup and he betrothed her with the cup and not with the wine. And if it was full of oil, which has more importance than the cup and it is the way of people to mention what is inside the cup by the name of the cup itself, he betrothed her with the oil and not with the cup, for presumably he betrothed her with the more important thing. According to this view, if there was the value of a perutah in the oil she is certainly betrothed, and if there is not the value of a perutah in the oil she is only betrothed out of doubt, as with any matter that does not have the value of a perutah where we are concerned that perhaps it has the value of a perutah in another place, as written in siman 31. But there are some of our teachers who hold that if the cup is full of water, he betrothed her with the cup and not with the water, for there is no importance in water that we should say he intended for it; and with wine, he betrothed her with the wine and not with the cup, for such is the way to drink the wine and return the cup; and if it was full of oil, which is common to be used for a long time, he betrothed her with the cup and with the oil. And according to these rules, according to the views that have been explained, one must judge regarding any two things that are together, and one should follow the stringency of both views that have been explained, for both views are from the great Rishonim, of blessed memory. And there is one who says that this distinction we make regarding the cup as written is when he betrothed her not at a time of eating and drinking, but if he betrothed her at a time of eating and drinking and said to her, "Be betrothed to me with this cup," certainly his intention was only for the wine within the cup, for such is the way of the world to call it so, and the same applies to other liquids. And so too if he mentioned, "Be betrothed to me with a cup of wine," even not at a time of eating, his intention is only for the wine, and if it was found that there was no wine in it but another liquid, she is not betrothed. And so too if he was eating in a certain house and betrothed the daughter of the homeowner with the cup before him, in any case his intention is for the liquid and not for the cup, for the cup is not his.

There is one of the great authorities who ruled regarding one who took a hen and placed it inside a vessel or a garment and betrothed her with this without specification, we say that according to all opinions he betrothed her with the hen and with the vessel, and if one of them is not his, it is a case of doubtful kiddushin. And according to reason, it appears that this matter is similar to a cup containing wine, and it appears that everything depends on the locations and according to the language customary there and according to the importance of the items, and the sages of the location shall judge this according to their understanding, and in a case of doubt it is obvious that one must follow the stringent view in every matter.

In the Gemara [9a] a case was brought regarding one who was selling necklaces of jewelry, and an unmarried woman came and said to him, "Give me one necklace," and he said to her, "If I give it to you, will you be betrothed to me?" and she answered him, "Give, you shall give." And similarly, a case regarding one who was drinking wine in a shop, and an unmarried woman came and said to him, "Give me one cup," and he said to her, "If I give it to you, will you be betrothed to me?" and she answered him, "Give, you shall give." And similarly, a case regarding one who was throwing down dates from a palm tree, and an unmarried woman came and said to him, "Throw me two dates," and he said to her, "If I throw them to you, will you be betrothed to me?" and she answered him, "Throw, you shall throw," and he did so. Our Sages, of blessed memory, ruled that they are not betrothed, for she did not agree to his words, and her intention was: "Give to me and do not toy with me regarding another matter" [the Rambam chapter 4]. And there is no difference between an item of food or drink and an item of jewelry or any other thing [Tosafot], for such a response indicates that she does not desire the matter of kiddushin. And the same law applies if she did not double her response, such as if she said "Give" or "Throw" and the like [Gemara]. And if she replied "Yes" and he gave it to her, she is betrothed. And if she did not reply at all but only received it in silence, the opinion of our teacher, the Beit Yosef, in his great work is that she is betrothed. Many disagree with him and hold that specifically if at the time he gave it to her he said to her a second time, "Behold, you are betrothed to me," and she received it in silence, she is betrothed; but in this case where he asked her beforehand, "If I give it to you, will you be betrothed to me?" it is nothing when she received it in silence [Bach and Chelkat Mechokek and Beit Shmuel]. And so it is explained from the words of our teacher, the Rema, in section 10, see there. And that which our teacher, the Beit Yosef, wrote in the Shulchan Aruch: "And if he said at the time he gave it to her, 'Behold, you are betrothed to me,' and she received it, she is betrothed," thus far his words—this implies that he also requires that he say it to her also at the time of giving. This is because she had previously replied "Give," indicating she did not want to be betrothed, and therefore it is necessary that he say the language of kiddushin to her once more. However, as long as she did not reply anything previously and received it in silence, even if he did not repeat his words, she is betrothed when she received it in silence; and so he wrote in a responsum [and in the Tur, Berlin edition, note 3, they cited it, see there].

Our teacher, the Rema, wrote explicitly in his great work like those who disagree with him. According to this, it must be said that what he wrote in the Shulchan Aruch, "And if he said to her at the time it was given to her, 'Behold you are betrothed to me,' and she accepted it, she is betrothed," thus far his words, his intention is not specifically regarding the previous words of the Beit Yosef when she replied beforehand "give." Rather, even if she did not reply beforehand "give," if he did not say to her a second time "Behold you are betrothed to me," there is nothing in her acceptance in silence. [And the difficulty of the Chelkat Mechokek in subsection 22 is answered]. And that which he wrote afterward, "And if she accepted in silence, but then went back and said 'give to me' or 'throw' and the like—she is not betrothed," thus far his words. The explanation of his words appears to be that when she answered him "give," he gave to her and said to her "Behold you are betrothed to me," and she did not reply anything but only said once more as before "give to me," and this is even worse than if she had remained completely silent. And I am astonished, for the Ran wrote explicitly that she is betrothed in such a case, see there. And the opinion of the Rashba is that even if he said to her at the time of giving "Behold you are betrothed to me" and she accepted in silence—she is not betrothed; for since at the beginning she replied to him "give," meaning "I do not desire betrothal," it does not avail that he went back and said to her at the time of giving the language of betrothal when she remained silent, unless she explicitly consented to the betrothal, see there. And conversely, the Rashba holds that if the first time, when he asked "If I give to you will you be betrothed to me," she did not reply "give" but rather remained silent—she is betrothed, like the opinion of our teacher, the Beit Yosef, that we wrote [see the Gra subsection 26 who explained the opinion of the Rashba thus].

Our teacher, the Rema, further wrote: And all this is when she began by saying "give me a little," but if he began to speak, saying "if I give to you, be betrothed to me," and she said to him in a joking manner "yes" and received it from him – it is a case of doubtful kiddushin. Thus far his words. And his words are puzzling: what is this "joking manner"? For it is true that there are those of our teachers who hold that when the Sages of blessed memory said that when she says "yes" it is nothing, this is when she began by requesting from him, for her speech was not at all for the purpose of kiddushin. But if he began with words and said to her in the form of a question, "if I give to you, will you be betrothed to me?" and she replied "give" – it can be said that it is kiddushin, for we say that her intention is that she agrees to his words [Ran, and so it appears in Tosafot]. And there is one who is doubtful regarding this [Mordechai]. And there is one who says that it is not kiddushin, since he spoke in the form of a question, if it were to enter your mind that she agrees to his words, she should have replied to him "yes," and this fact that she said "give" is a sign that she does not agree to the kiddushin [Rashba]. And not only that, but even if he went back and said to her at the time of giving, "behold you are betrothed to me," and she remained silent, she is not betrothed according to this opinion, as has been written [ibid.]. But a "joking manner" is not found in the poskim, and what is the nature of this joking? And either way, if she said "yes," why is it not kiddushin? [see Chelkat Mechokek]. And there is one who wishes to emend his words to say that she said to him "bring" or "give" [the Gra]. And there is one who wishes to say that his intention was that she replied with a doubled expression, "give, you shall give," for this is a joking manner, but if she said "give," it is kiddushin [Beit Shmuel]. And this is not clear, for it is proven from the Shas and the poskim that there is no difference between a doubled expression and one not doubled, and regarding a doubled expression, how does a "joking manner" apply? And it requires further study.

And it appears to me that his words follow the words of our teacher, the Beit Yosef, which are the words of the Rambam, who wrote that if she said "yes" she is מקודשת, but if she said "give me" or "throw it" or matters whose meaning is "do not jest with me with these matters but rather just give it to me" – she is not מקודשת. Thus far his words. And the Rambam held that this case where she said "give" or "throw," her intention is "do not jest with me," because in truth it is a matter of jesting when she requests something from him and he answers her with the matter of kiddushin. And our teacher, the Rema, follows his own reasoning in Choshen Mishpat siman 421, that there is a "yes" which is like a "no" in a matter where it appears that the subject is astonishing; see there. And since there are poskim who are stringent when she did not initiate the request from him but rather he was the initiator, and there are those who disagree on this as has been written, therefore he was stringent and ruled that in a case where he was the initiator it is a doubt of kiddushin. For this reason he was further stringent to say that it is not only when she answered him "give me" or "throw it" that it is only a doubt of kiddushin, but even if she answered "yes" but answered in a language of jest or in a language of astonishment, it is also only a doubt of kiddushin. And this is the explanation: but if he initiated, and even if she answered "yes" in a language of jest, it is only a doubt of kiddushin because there is a "yes" which is like a "no," and all the more so when she answered "give" or "throw" as has been written. And this is included in the words of the Rambam who wrote "matters whose meaning is do not jest with me," and automatically when she answered "yes" in a language of jest or in a language of astonishment, their meaning is also "do not jest with me" [it appears to me]. And for the halacha, one should be stringent like all the opinions that have been explained, for all of them have illuminating faces in logic and in the sugya of the Shas.

There are some among the great authorities who were uncertain whether, if when she asked him to give to her, he did not respond to her in the language of a request but rather in the language of a decree—for example, if he said, "I will give to you and you shall be betrothed to me," and she remained silent and they received it, or she said to him "give" or "you shall surely give"—that it is possible she is betrothed. And even according to the poskim who hold that it is not effective when he says to her afterward, "Behold you are betrothed to me," this is because he previously spoke to her in the language of a request; however, if the beginning of his response was in the language of a decree, it would be betrothal [Mishneh LaMelekh], and it appears that it would be a case of uncertain betrothal.