Siman 30

The Rambam wrote in chapter 4, law 21: One who betroths a woman with money or with a document does not need to place the kiddushin into her hand; rather, once she desired that he throw her the kiddushin and he threw them, whether into her hand, or into her lap, or into her courtyard, or into her field—she is betrothed. Thus far his words, and so wrote the Tur and Shulchan Aruch. And even though regarding a get some of our teachers were stringent that she is not completely divorced until the get reaches her hand literally, and our teacher, the Rema, ruled accordingly in siman 139, nevertheless regarding kiddushin they did not see fit to be stringent in this, for it would be a stringency that leads to a leniency if we cast aspersion on the kiddushin. And since according to the essential law she is completely betrothed, even with giving it to her courtyard the sages did not see fit to be stringent in this. But regarding a get there will be no ruin if we say she is not yet completely divorced. Furthermore, regarding a get they were stringent because it is a disadvantage to her and is given by law against her will, which is not the case with kiddushin; for even regarding a get it is merely a stringency that the sages applied and not regarding kiddushin, and see what I wrote in section 13.

It is clear from the words of the Rambam that before he throws the kiddushin to her, she must agree that he should throw it to her. However, when she did not explicitly agree before he threw it to her, and he threw it and she remained silent – it is not kiddushin as long as it did not actually reach her hand, even if it entered her domain, for her silence is not proof that she agreed, as written in siman 28, section 34; see there. However, if she agreed to the kiddushin, even if she did not explicitly agree to the throwing, and he threw it into her domain – she is betrothed [Taz and Chelkat Mechokek and Beit Shmuel], unlike the one who disagrees on this. Nevertheless, if she explicitly said "give the kiddushin into my hand" and he threw it into her domain – there is no kiddushin here, since he deviated from what she said [Taz at the beginning of siman 42]. And if he threw it to her hand – it appears that she is betrothed, for in the expression "give" all types of giving are included, whether by handing it over or by throwing, unless she explicitly said that he should not give it to her by throwing [it appears to me].

Regarding that which the Rambam wrote, that into her courtyard constitutes kiddushin, the Tur wrote that we require the courtyard to be guarded with her knowledge, and then she is betrothed even if she is not standing next to the courtyard, see there. And even though regarding a get we require both—that it be guarded with her knowledge and that she stand next to it, as is written in siman 139—this is a stringency in gittin because it is a disadvantage to her, and also regarding a get it will be explained there with the help of Heaven, and not in kiddushin. And the Rambam, who did not mention this, some say that he holds that in kiddushin even if it is not guarded with her knowledge and she is not standing at its side, she is betrothed; and even though also in a gift we require one of the two, as the Rambam wrote in chapter 4 of Hilkhot Zekhiya, nevertheless kiddushin is superior. And some say that the law of kiddushin is like the law of a gift and the Rambam relied on what he wrote in Hilkhot Zekhiya, but one may hesitate at this, for a typical field is not guarded as is written there, but one could say that in a field we indeed require that she stand at its side. And it appears to me that for the law one should be stringent like the first resolution, for in the Gemara (Bava Metzia 11a) there is an interpretation that in a sale and a gift, since there is the mind of another conveying it, we do not require a guarded courtyard nor that he stand at its side; and therefore, even though the Rambam did not rule so, nevertheless in kiddushin perhaps he was concerned to be stringent.

According to the opinion of the Tur that we require the courtyard to be guarded with her knowledge, if it is guarded with his knowledge and not her knowledge, it would have been possible to say that it is also effective according to what our teacher, the Rema, wrote in Choshen Mishpat siman 200 regarding a gift, that even if it is guarded with the knowledge of the giver, the recipient acquires it, and here too it is similar. However, it is possible to distinguish that regarding kiddushin, we require that the money come from his hand to her hand and that he remove all his power from the kiddushin, for this is the essence of the kiddushin; if so, it is not effective when guarded with his knowledge and it is a case of uncertain kiddushin [see Chelkat Mechokek subsection 2 and Beit Shmuel subsection 3], and behold, even there, there are those who disagree on this [see Shach ibid.]. Furthermore, regarding a found object, all agree that we require it to be guarded because there is no other transferring mind there, as I wrote there in our work in section 3; therefore, regarding kiddushin, even though there is another transferring mind, nevertheless she does not rely upon him as in the case of a gift, for her will is that the money be clearly in her hand, and therefore it is a case of uncertain kiddushin. [See Taz and Beit Shmuel, and the difficulty raised by the Avnei Miluim subsection 3 is not a difficulty at all, and examine it well].

If she was standing in the domain of the husband – he must place it into her hand or into her lap or into her vessel for which he does not mind the space, such as her basket, which is a vessel that women place needles and tubes into, and anything similar to this. And even though this is like the vessel of a buyer in the domain of a seller, where the buyer does not acquire or it is a legal doubt as written in Choshen Mishpat siman 200, see there, nevertheless she is betrothed because he does not mind the space of such a vessel of his wife, just as he does not mind the space of her lap. But if he placed it in another vessel, even if he placed it on her bed and she is sitting on the bed – she is not certainly betrothed unless the bed is ten tefachim high, such that it is a distinct domain for itself, and regarding the fact that the legs of the bed stand on his property, he does not mind this, as written regarding gittin in siman 139. And if it is not ten tefachim high – she is doubtfully betrothed. And if the bed is his – she is not betrothed in any case unless he lent her the space, the law of which was explained there, and the same applies to kiddushin, see there.

The Rambam, of blessed memory, wrote: If she was standing in a domain that belongs to both of them and he threw her kiddushin to her with her consent, and they did not reach her hand or her lap—this is a case of doubtful kiddushin; and even if she said to him, "Place my kiddushin on this spot," and that spot belongs to both of them—these are doubtful kiddushin. Thus far his words. Our teacher, the Beit Yosef, transcribed it in section 3. For the Rambam holds that even though a partners' courtyard does not effect acquisition from one to the other, nevertheless, regarding kiddushin, since she has a portion in the courtyard and it is pleasing to him that she be betrothed, it is possible that it is like her courtyard, and therefore it is a case of doubtful kiddushin. However, there are some of our teachers who disagree with this and hold that even for kiddushin a partners' courtyard is nothing and she is not betrothed. And as for why our teacher, the Rema, did not provide a gloss, it is because he relied on what he wrote in section 9. Regarding the law, she requires a get according to the opinion of the Rambam and the Shulchan Aruch.

The Tur and the Shulchan Aruch wrote in section 4: If she was standing in a simta or at the sides of the public domain and he threw them within her four amot – she is betrothed; but if they remained within his four amot – she is not betrothed, even if she entered within his four amot, since he preceded her into them he acquired them and they are his. Thus far their words. And the explanation of the matters: For in Choshen Mishpat siman 243 it was explained that the sages enacted that any four amot in which a person stands are considered like his chatzer regarding matters of acquisitions, and specifically in a simta and at the sides of the public domain since every person has permission to linger there and place his objects there, therefore whoever is first in the four amot, they are considered like his chatzer; but not in the public domain or in the domain of others, for in them a person does not have permission to linger there, and also in a chatzer of partners they did not enact this since it is impossible to take the permission from the second partner. And even though there are those who say that they only enacted this regarding a find so that they should not come to dispute, as is written there in siman 268, nevertheless most of the poskim hold that in all acquisitions they enacted so, as is written there in siman 200 section 8, see there; and the Tur and the Shulchan Aruch hold that also regarding kiddushin it is like her chatzer when she preceded him within the four amot, and likewise regarding gittin as is written below in siman 139.

And even though this kinyan is only midrabbanan, nevertheless she is betrothed by it min haTorah because the property of the beit din is ownerless [Ran, chapter 8 of Gittin], and the place becomes like her chatzer min haTorah; and furthermore, anyone who betroths does so based on the intent of the rabbis [Ramban, ibid.]. And it is not that these are kiddushin midrabbanan, for the kiddushin are min haTorah since the rabbis established it as her chatzer, but rather that if he did not betroth based on the intent of the rabbis, I would say his desire is that the kiddushin should enter a chatzer that is min haTorah; however, since he betroths based on their intent, the kiddushin are completed also min haTorah in the chatzer that the rabbis instituted [and all that the Avnei Miluim wrote in subsection 5 is well-settled]. And we have already explained in siman 28, section 61 in the name of our teacher, the Beit Yosef, that all kinyanim midrabbanan are a kinyan also min haTorah for every matter, and that this is proven in the Yerushalmi regarding Maaser Sheni, see there; and also regarding this matter of the four amot, it is stated in Yerushalmi Peah [chapter 4] and Yerushalmi Gittin [chapter 8] that even the one who holds that regarding a gift they did not institute the kinyan of four amot, nevertheless regarding Gittin he admits, see there. And it is obvious that the get is min haTorah, and one cannot say that specifically regarding Gittin it is because anyone who betroths does so based on the intent of the rabbis and the rabbis annulled the kiddushin with this get and not regarding kiddushin, for it is an a fortiori argument: since they annulled Torah kiddushin with such a get, all the more so that they completed Torah kiddushin with such kiddushin since he betroths based on the intent of the rabbis. [See Avnei Miluim, and in my humble opinion the primary view is as I have written].

The poskim did not bring any dissenting view regarding this law of four amot, and it was clear to them that according to all the poskim this law is agreed upon. And even though the Rambam, of blessed memory, did not bring the law of four amot at all regarding kiddushin, they hold that he relied on what he wrote in the fifth chapter of Divorce [the Gra, subsection 26, and so it appears from the Chelkat Mechokek and Beit Shmuel]. On the contrary, according to the Rambam, four amot is effective even in a reshut harabim as he wrote there, and the reason is because of the ordinance for agunot [Beit Shmuel, subsection 5]. For this reason, they ordained similarly regarding kiddushin; even though the concept of igun is not applicable to kiddushin, nevertheless, we compare kiddushin to divorce [ibid.]. However, the Tur and the Shulchan Aruch, even though regarding a get they ruled in siman 139 that four amot is effective even in a reshut harabim, nevertheless, regarding kiddushin they hold that it is not effective [ibid.]. All of this is according to the opinion of the great Acharonim.

However, I found one of the Rishonim who wrote explicitly that the enactment of four amot does not exist even in cases of gittin [Nimukei Yosef, first chapter of Bava Metzia], and also the Rif, of blessed memory, in the eighth chapter of Gittin did not write this law, see there. Also, regarding the opinion of the Rambam, of blessed memory, it appears to me that he does not hold of the enactment of four amot in gittin, and certainly not in kiddushin. The law of four amot that he wrote there is a different matter, for in gittin and kiddushin there is another type of acquisition that does not exist in monetary laws, namely, when she is able to guard the get or the kiddushin and he is unable to guard it, as will be explained. In this, there is no difference between a public domain and a side alley, for they approached it from the law of guarding. Only in gittin do we establish that we require the get to be so close to her that she can bend down and take it, and even in this they were stringent by rabbinic decree that she should not marry until the get reaches her hand, as the Rambam wrote there. But in kiddushin, they established it according to the law that as long as she can guard it and he cannot guard it, it is kiddushin, as will be explained. The four amot that the Rambam wrote regarding a get is so that she can bend down and take it, and it is from the law of guarding. On the contrary, they were stringent that if the husband reached within the four amot first, it is not a get even if it is within reach to bend down and take it, as he wrote there in Halakha 15, see there. Therefore, in Halakha 12 there, regarding the law of where her hand was like a slope, he wrote that when he threw the get onto her hand and it fell within her four amot, she is divorced when the get comes to rest, because it is like her actual hand, and certainly it is within reach to bend down and take it [and the difficulty of Tosafot in Gittin 78b, s.v. "yehei," is answered, see there and examine it closely]. Therefore, in kiddushin, the Rambam did not mention the law of four amot, for it is included in the law he wrote regarding a place where she can guard it and he cannot guard it; and if she truly cannot guard it, she is not betrothed by the law of four amot. And that which they said in the Yerushalmi, that there is a law of four amot in gittin—however, it says there in Gittin that this is for the legal theory and not for practical practice, see there. For behold, on the contrary, the Yerushalmi is very stringent regarding the essence of the acquisition of four amot, that we require him to say that he intends to acquire, as is written in Choshen Mishpat in siman 268, section 5, see there, and our Talmud does not hold so [Bava Metzia 10b]. Therefore, in my humble opinion, even though the law of four amot in kiddushin was explained in the Shulchan Aruch and the acharonim without dissent, nevertheless, one must follow the practice stringently, that if another betrothed her, she requires a get from both of them. Also, if he threw her kiddushin in a public domain within her four amot, it is a case of uncertain kiddushin [Beit Shmuel]. And even though according to what I wrote, in any case there is no kiddushin here—for according to the Tur and the Shulchan Aruch this law does not exist in a public domain, and according to the Rambam he does not hold of this law at all according to what I wrote—nevertheless, since the great acharonim decided so, Heaven forbid to disagree with them to be lenient. However, in siman 139 we explained that in a get, the Rambam admits that by the essential law she has four amot, and only because of the stringency did they disqualify it, see there.

According to the opinion of the Tur and the Shulchan Aruch, within her four amot, even if both of them are able to guard the kiddushin—she is betrothed. And even though regarding a get we are stringent in such a case in siman 139, it is a stringency regarding a get, but regarding kiddushin it is valid, for in any place where the get is valid according to the Torah and is only disqualified by rabbinic decree—then regarding kiddushin she is certainly betrothed. And just as if he arrived first within these four amot she is not betrothed even though she also entered afterward into these four amot, so too conversely, if she arrived first she is betrothed even though he also entered afterward into these four amot; for the general rule in the law of acquisition of four amot is that whoever arrives in them first, they become like his domain. And even though regarding a get we are stringent even in such a case—this is a stringency regarding gittin as has been written. And if both of them came as one into these four amot—it is like a courtyard belonging to both of them, which was explained in section 6. And in Choshen Mishpat siman 268 it was explained that there is a dispute whether four amot effects acquisition for a person only when standing or even when walking, and the matter is simple that regarding kiddushin one must follow the stringency in all aspects of this. And even though in the Shulchan Aruch there this opinion—that there is a dispute between standing and walking—was not cited, nevertheless one should follow the stringency. And likewise, even though we explained there in section 4 that they do not disagree in the final law, see there, nevertheless regarding kiddushin we do not rely on this, and one must follow the stringency in all aspects.

The Rambam, of blessed memory, wrote at the end of chapter 4 of Ishut: If they were standing in the reshut harabim or in a domain that belongs to neither of them and he threw her her kiddushin, if it is closer to him – she is not mekudeshet; closer to her – she is mekudeshet; half and half, or if it was a doubt whether it was closer to him or closer to her and they were lost before reaching her hand – she is doubtfully mekudeshet. How is it defined as closer to him or closer to her? Any case where he is able to guard them and she is not able – this is closer to him. If she is able to guard them and he is not able – this is closer to her. If both are able to guard them or both are not able to guard them – this is half and half. Thus far his words, and so wrote the Tur and the Shulchan Aruch in section 5. And even though we do not find anywhere else that a kinyan is dependent on guarding, nevertheless the sages of blessed memory ordained so regarding gittin for the sake of agunot, and it was not possible for them to distinguish between gittin and kiddushin because it is written, "and she shall depart... and she shall become" [Ran, chapter 8 of Gittin]. And even though regarding gittin we rule that it is not a complete get until it reaches her hand, the Rambam holds that this is a stringency they applied to gittin, but regarding kiddushin she is completely mekudeshet [ibid.]. And according to this reason, the entire essence of this law is a rabbinic ordinance, and even though we have already explained that in every rabbinic kinyan it constitutes kiddushin from the Torah, nevertheless, according to those who disagree with this, they are only kiddushin by rabbinic law. [See Chelkat Mechokek, subsection 5 and subsection 7].

But there are some of our teachers who said another reason for this: since by Torah law the get may be given against her will, therefore it is a get when it is within her proximity, and consequently it is also a kinyan regarding kiddushin because it is written, "and she shall depart... and she shall become." And according to this reason, it can be said that it is by absolute law, and that which they were stringent regarding gittin—until the get reaches her hand—is a stringency in gittin lest they come to say regarding that which is far that it is near; and consequently, in kiddushin one should not be stringent in this. For it is well understood that in a get it leads to a ruinous state when they say she is divorced and she marries another, but in kiddushin it is not a ruinous state if they say she is betrothed. And even though there is a ruinous state if she receives kiddushin from another, nevertheless, this matter is not common, that one who is betrothed would receive kiddushin from another. And also, one need not fear the opposite, that they will say regarding that which is near that it is far and she is not betrothed, for this will not be helped if we say she is not betrothed until the kiddushin reach her hand, as they might still say regarding that which is near that it is far and they are not kiddushin, while by Torah law they are certainly kiddushin. And this reason that we have explained can be said regarding all the stringencies that they were stringent about in such matters in gittin and were not stringent in kiddushin.

And that which he wrote, that if both of them are unable to guard it, it is a case of uncertain kiddushin, the intention is not that both of them together are unable to guard it, for if so, it is obvious that it would not be kiddushin; rather, the intention is that each one of them is unable to guard it except for both of them together [Tosafot]. And in siman 139 it will be further explained with the help of Heaven. According to this, that which he wrote, "both of them are able to guard it"—its explanation is that each one of them is able to guard it. And that which he wrote this law regarding a reshut harabim was not to exclude a simta or the sides of a reshut harabim, for it is an a fortiori argument from reshut harabim; rather, it was to exclude his courtyard or her courtyard. For in his, she is never betrothed, and in hers, she is always betrothed if the courtyard is guarded or if she is standing at its side. And that which he compares a domain that belongs to neither of them to a reshut harabim is because they have one law regarding the acquisitions of sales [the Maggid Mishneh].

Regarding what he wrote, "uncertain whether it was close to him or uncertain whether it was close to her," there are some among the Rishonim who explained that this specifically refers to two sets of witnesses, where one set says "close to him" and one set says "close to her," which constitutes a doubt of Torah law. And even though in a case of "two against two" the Torah law establishes the matter upon its chazaka, nevertheless, by rabbinic law she cannot be released without a get since there are two witnesses who say "close to her" [Yevamot 31a]. However, with a single set where one says "close to him" and one says "close to her," it can be said that we establish her upon her chazaka as an unmarried woman. Similarly, if there is a doubt regarding both of them whether it was close to him or close to her, we establish it upon the chazaka. And some say that even with a single set where one says "close to him" and one says "close to her," the sages decreed upon it and it is a case of doubtful kiddushin [Chelkat Mechokek and Beit Shmuel]. However, in siman 47 it will be explained that in such a case, if she married she shall not leave, though initially she should not marry; for since it is known to us that he threw kiddushin to her, her chazaka as an unmarried woman has been weakened, see there. And there it will be further explained regarding this with the help of Heaven. And according to this reasoning, even when there is a doubt regarding both of them whether it was close to him or close to her, initially she should not marry because her chazaka has been weakened, but if she married she shall not leave. Yet it can be said that since there is a doubt regarding both of them, there is no concern of kiddushin at all, for it is like one who betrothes without witnesses [see Beit Shmuel subsection 9]. But according to this, even where one witness says "close to him" and one witness says "close to her," there should be no concern, for we hold that one who betrothes with one witness, we do not concern ourselves with the kiddushin, and this is the opinion of most of the poskim. Rather, certainly this is not like one who certainly betrothes without witnesses, but like all doubts as to whether there are witnesses or not; and by the letter of the law we should establish her upon her chazaka, but because her chazaka was weakened, therefore she should not marry initially. And there is one who distinguishes: if the witnesses saw the place where the kiddushin fell and they are uncertain if the place is close to him or to her—it becomes like doubtful kiddushin; but if they did not see the place at all, but rather saw the throwing and do not know where the kiddushin reached, whether close to her or to him—it is not even doubtful kiddushin [Avnei Miluim]. And this distinction is not clear to me [and also from Tosafot Ketubot 23a, beginning with "Tirveihu," it does not appear so, see there]. But with two sets of witnesses, even if she married she shall leave by rabbinic law [Tosafot ibid., beginning with "Mai Shna"]. And some say that even in a case of "two against two," if she married she shall not leave [Rivash siman 266], for we also join the chazaka that a woman is precise before she marries to the chazaka of being unmarried; and the precision is lest her witnesses on her side be proven false and she is afraid of this, therefore she will be precise. And in the Jerusalem Talmud Yevamot [Chapter 10, Halacha 3] it is also explained thus, see there [also the Tosafot, according to the "some say" excuse, hold so, and so wrote the Rashba there, that the Sugya follows the one who holds that "two against two" is a doubt of Torah law, see there].

A simta is a place designated for those standing there at that time, and it is considered like a courtyard belonging to both of them, and it is a private path or an entrance protruding from the public domain where people have permission to place their objects like a courtyard of partners, for it is not intended for the passage of the public, and likewise a corner adjacent to the public domain which is ownerless for the public to extend into there to escape the crowd, and according to the status of such places one must judge in every location according to the matter. Regarding a synagogue and a study hall, some say its law is like a simta regarding the four cubits, and some say its law is like a courtyard of partners as is proven in Yoreh Deah siman 224, see there. And there is one who says that the primary view is like the first opinion, for even though in other matters their law is certainly like a courtyard of partners, nevertheless regarding gittin and kiddushin, which are commonly performed in the synagogue and the study hall, their law is properly like a simta. And according to this, in our lands where it is not common to perform gittin and kiddushin there, their law is like a courtyard of partners. And it is possible to say that during the time of prayer their law is like a courtyard of partners, and when it is not the time of prayer their law is like a simta, and one must deliberate on this. And a synagogue courtyard—it appears also that its law is like a simta.

Our teacher, the Beit Yosef, wrote in section 6: If he threw her her kiddushin even into her lap and she did not take them but remained silent—there is one who says it is nothing, since she did not initially agree to be betrothed to him. Thus far his words. And this is as we wrote in section 2, that when she did not explicitly agree before he threw to her, and he threw and she remained silent, it is not kiddushin. And as our teacher, the Rema, wrote in siman 28, that specifically when she took it in her hand, but if he threw the kiddushin to her even into her lap, her silence is nothing since she did not initially agree to be betrothed to him. Thus far his words. And we explained there in section 34 that specifically when she took it in her hand is her silence proof of her will, see there. And there are those who say that since he said to her the language of kiddushin and she remained silent, it is complete kiddushin, and specifically when she threw the kiddushin from her lap immediately is it not kiddushin, but when she did not throw it, it is kiddushin [Taz]. And according to this, it must be said that also in this law of our teacher, the Beit Yosef, the intention is such, that she threw it [ibid.]. And many disagree with this opinion [Chelkat Mechokek and Beit Shmuel and the Gra and the Avnei Miluim and Chatam Sofer in siman 84].

The proponent of this opinion has an apparent proof from what our teacher, the Rema, wrote in siman 42, section 1: that if he took the woman's hand by force against her will and betrothed her, and she did not throw away the kiddushin, she is betrothed; even though it was initially under duress and he gave it to her without specification and said nothing to her, since he had initially spoken with her regarding kiddushin. Thus far his words. And if we say that in a case of throwing, when she did not consent, we do not concern ourselves with the fact that she did not cast them from her lap, if so, here too let it not be kiddushin since he took her hand by force, and why is it kiddushin by the fact that she did not throw them? However, in truth, they are not related to one another, for there it deals with a case where she initially consented to be betrothed to him, as is proven from the wording of our teacher, the Rema, and as is proven from the source of the law, see there. And besides this, it is not similar; for when the kiddushin is in her hand, even though he gave it to her against her will, nevertheless when the duress ceased she should have cast them from her hand. This is not the case when it was in her lap, as she was not concerned to cast them away since it is not literally in her hand. And even though according to the law there is no difference between her hand and her lap regarding the receipt of kiddushin, nevertheless regarding the fact that she did not cast them away afterward, logic dictates a distinction in this. And nevertheless, it is possible that in practice one should be stringent even though the fundamental law is as I have written.

Regarding a get, we hold that if he said to her, "Take your get from upon the ground," he has said nothing, for we require "and he shall give it into her hand." And some say that the same applies to kiddushin: when he says to her, "Take your kiddushin from upon the ground," it is not kiddushin. Even though in kiddushin we do not require giving from his hand to her hand—for even if he betrothed her with a deposit that was already in her hand, she is betrothed—nevertheless, we require at the very least that this object with which he betroths her should come from his hand or from the hand of his agent to her hand, even if not for the purpose of kiddushin. Likewise, when he betroths her with something that is considered as if he gave it to her, this itself is like giving. But with "take it from upon the ground," it is not kiddushin, for they are compared to one another, as it is written: "and she shall depart... and she shall become" [Maharil in a responsum]. And some say that it is full kiddushin and we do not require giving from his hand to her hand in kiddushin [Rashdam, Ra'anach, and Avnei Miluim], for the comparison of "and she shall depart and she shall become" is only for kiddushin by a document. And what benefit is there in the deposit in her hand that came to her hand not for the purpose of kiddushin? Furthermore, is it not possible to find a case of a deposit where he did not literally deliver it from his hand to her hand? And if we were truly to say there is a distinction in this, the Talmud and the poskim should have explained it [it appears to me]. Also, from what was explained in siman 28, section 37, regarding a woman who snatched money, it is also proven that we do not require giving from his hand to her hand, for it is explicitly implied there that if she said "yes," she is betrothed, and yet the money did not come from his hand to her hand [Avnei Miluim]. And there are some of the great authorities who are in doubt regarding this law [the Mahari ibn Lev, the Rashach, and the Beit Shmuel, subsection 1]. Certainly, as a matter of law, it is a case of doubtful kiddushin; even though the second opinion appears primary, nevertheless, in practice, it is impossible to judge them as certain kiddushin but rather as doubtful kiddushin. And if another man came and betrothed her, she requires a get from both of them.

If one said to a woman, "Be betrothed to me with this dinar," and she took it and threw it in his presence into the sea or into fire or into anything that causes its loss, and she said nothing—she is not betrothed, for this proves that she does not desire the kiddushin. And even though she is obligated to pay him back, and I might have said that she intended for kiddushin and to test him to see if he would not become angry, nevertheless, we do not say so, for an act such as this proves that she does not desire him and out of anger she destroyed it and will be obligated to pay. And all the more so if she threw it in his presence to a place where it is not lost, it is not kiddushin, for this is like her saying, "Take what you gave me, I do not desire you."

The poskim did not distinguish in this law between whether he had proposed or had not proposed, and it implies that even if they had spoken previously regarding the matters of kiddushin, she is not betrothed. However, from the perspective of logic, it appears that there is a distinction. Certainly, if at this very moment she threw it from her hand—it is not kiddushin in any case. But if she waited a moment and threw it in his presence: if he had proposed previously, it is at least a case of doubtful kiddushin, for perhaps at the moment she received it she consented and afterwards she changed her mind. But where he had not proposed, if she waited some time in her hand and afterwards threw it—it is a case of doubtful kiddushin. But if she did not wait some time, even though she did not throw it at the very moment she received it—it is not kiddushin. For since there is neither speech of kiddushin from her side that proves her desire nor an action, and on the contrary, there is an action here that proves she did not consent—it is not kiddushin. And we do not judge in this law the law of "within the time of a greeting," for we hold that in kiddushin "within the time of a greeting" is like "after the time of a greeting," because since she threw it within the time of a greeting, the act of her throwing removes the effect of the act of her receiving [Makneh]. But if she waited until after the time of a greeting—it is certainly a case of doubtful kiddushin. But where he had proposed, even within the time of a greeting it is a case of doubtful kiddushin, unless at the very moment of her receiving it she threw it before him [it appears to me].

And there is reason to doubt if he betrothed her with an object and at the moment of her receiving it she tore it but did not cast it from her hand, whether we say that this is also a disclosure of intent that she does not desire the kiddushin, or perhaps since she did not cast it from her hand it is kiddushin; and as for the law, it appears that it is a case of doubtful kiddushin.

Some say that if they are standing in her domain and she threw the kiddushin, since they are still in her domain—she is betrothed, unless she said explicitly that it is not her will to be betrothed to him; and such is the law when she threw it close to her or within her four amot. And there are those who hesitate regarding this, for what was she to do after he threw it before her? You have no greater revelation of intent than this, that she does not desire the kiddushin. And it requires further study for the law, for it stands to reason that this is like the law that was explained in section 17, see there. Nevertheless, in practice, it is a case of uncertain kiddushin since there are great authorities who are stringent in this.

If one said to a woman, "Be betrothed to me with a maneh," and she said to him, "Give it to my father," or "Give it to your father," or "Give it to so-and-so," and he gave it to them, we do not say that her intention was to say that she is betrothed to him through this. Rather, her intention is that she is mocking him, as if to say, "Give your money to others." Even though she commanded to give it to her father, it is nothing. And even if at the time he gave it to her father he said to her, "Be betrothed to me with the maneh that I gave to your father," and she remained silent – it is nothing. For specifically if he were giving it into her hand and she received it in silence is she betrothed; but in this case, why should she speak since it did not come into her hand? And from where do we know that her intention was not that they should receive it on her behalf and she would be betrothed through this? For if so, she should have answered him, "My father, or your father, or so-and-so shall receive it on my behalf." And it is not similar to "Give a maneh to so-and-so and I will be betrothed to you" in siman 129 where she is betrothed, for there she was the one who initiated the words, and it is not relevant to say she intended to mock. But when he was the one who initiated and she answered thus, it is as one mocking him, as has been written. And there is one who says that regarding "Give a maneh to so-and-so," even if she did not conclude "and I will be betrothed to you," she is betrothed when she was the one who initiated, and see what I wrote in siman 29, section 14, and it requires further study.

But if she answered him, "My father shall receive for me," or "Your father shall receive for me," or "So-and-so shall receive for me," and when he gave to them he said, "Acquire these kiddushin for so-and-so," or they heard when she said to him that they should receive them for her, then upon their receipt it is as if it reached her hand, and even if he did not go back and say to her, "Be betrothed to me with the maneh that I gave to them." And even if she said, "So-and-so shall receive for me," and the so-and-so is a stranger, we do not say that she is merely putting him off and does not desire the kiddushin; rather, we say that her intention is truly that she be betrothed through the receipt of the so-and-so, for if it were not so, she would have said, "Give them to so-and-so." And know that regarding that which she said, "So-and-so shall receive for me," or "My father or your father shall receive for me," the intention is not that she makes them her agents for receipt to receive the kiddushin on her behalf, for if so, she would have needed to say to them, "Be my agents to receive the kiddushin money on my behalf," and not that she should say to another, "Tell so-and-so that he should receive my kiddushin," for in such a case it is possible to say that these are matters that cannot be transmitted to an agent. Rather, this is the reason: since she said to him that they should receive, it is as if he gave them into her hand. And in truth, we established that she can appoint an agent for receipt not in his presence, and this is not similar to one who says "tell [them]," only that the truth is so, that this is not like agency but rather like a matter of a condition, that in such a case she is betrothed to him.

It is stated in the Shas [8b] that if one said to a woman, "Be betrothed to me with a maneh," and she replied to him, "Place them upon a rock"—she is not betrothed; and if it was her rock—she is betrothed; and with a rock belonging to both of them—it is a case of uncertain kiddushin. And there are some of our teachers who explained it according to its plain meaning, that with her rock she is betrothed because it is like her chatzer and as if she received it into her hand [Rashi]. And with a rock belonging to both of them, even though in a chatzer of partners they do not acquire from one another, nevertheless here it can be said that since she has a portion in it, when she said to him "Place them upon the rock" her intent was to be betrothed, and he also, since his desire is to betroth her, transferred to her a place on that rock and she acquired it; or perhaps since the rock is not entirely hers it is merely a rejection [the Ran and the Maggid Mishneh]. And such is the opinion of the Rambam, of blessed memory, as I wrote in section 6, see there. And according to this approach, that it is by reason of chatzer, it must be said that her rock is guarded with her knowledge or she is standing beside it, and similarly regarding a rock belonging to both of them [it appears to me].

And there are some of our teachers who explain that this law is not based on the principle of chatzer, for if it were based on the principle of chatzer, there would be no doubt regarding a rock belonging to both of them that she is certainly not betrothed, as partners do not acquire from one another in a joint chatzer; rather, here we are dealing with a case where there is another act of acquisition, such as where he subsequently threw them into her lap and she remained silent, for in this case we say that when she said "place them on the rock," she was merely deflecting him, as if to say, "I do not desire you, and place them wherever you wish," and consequently even his throwing them into her lap is ineffective since she said she does not desire him. However, if it were her rock, we say that she did not intend to deflect him, but on the contrary, she consented; and in such a case, certainly even if he did not throw them into her lap, she is also betrothed based on the principle of chatzer. Therefore, if it were a rock belonging to both of them and he subsequently threw them into her lap, it is a matter of doubt whether her intention was to deflect him or whether she consented. And from the words of the Tur it is implied that with her own rock, even if he did not place them at all on the rock but rather threw them into her lap, she is betrothed; and although it could be said that she insisted only on placing them on the rock and not into her lap, nevertheless, it can be said that there is no such insistence in this matter, for it is in her power to take them from her lap and place them on the rock, and so it is in all the laws that will be explained similar to this. And know that according to this view, this only applies when she said "place them on the rock" and no more, but when she concluded "and I shall be betrothed to you"—then there is no longer a doubt in this, and she is betrothed when he threw them into her lap, for she is not deflecting him. However, according to the previous explanation, even if she said "and I shall be betrothed to you," it is nothing in the case of an ordinary rock, for since the rock is not hers, through what did she acquire? And certainly, regarding the law, the first view does not disagree with this view in the case where he placed them into her lap, and only this view disagrees with the first view regarding a chatzer belonging to both of them, as I have written.

And there are some of our teachers who also hold like the previous opinion that in a courtyard belonging to both of them there is no kinyan, and they explain in another manner that the reason here does not depend on the kinyan of her courtyard, but rather that if the rock is hers she relied in her mind, and when it is not hers she did not rely in her mind, and regarding a rock belonging to both of them there is a doubt whether she relied in her mind or not [Tosafot]. And even though there is no kinyan here regarding a rock belonging to both of them, and what benefit is there in the reliance of the mind and what doubt is there in this [Pnei Yehoshua], however, this opinion holds that in a case where she said "give a maneh on the rock and I shall be betrothed to you," she is betrothed by the law of a guarantor, as in "give a maneh to so-and-so." According to this, if there was reliance of the mind here, she would be betrothed by the law of guarantee even though there is no kinyan here [HaMakneh]. But several of our teachers agreed that the law of guarantee is only relevant when she commanded to give to a person, but not in giving upon a rock or in casting it to be lost, for there is no law of guarantee in this [the Rosh ibid. and the Ran in the name of others, and also the Ramban who disagrees regarding casting to be lost admits regarding a rock, see there]. Nevertheless, in practice one should be stringent since several great authorities hold that there is guarantee in such a case [the Rosh].

And there are some of our teachers who wrote that if she said generally "place them on the rock," she is not mekudeshet even if he placed them on her rock, but if she designated the rock for him, such as if she said "place them on such-and-such rock" or "on my rock" – she is mekudeshet, for when she said "place them on the rock" she is merely putting him off. And some say that there is no dispute in this, for all the poskim concede to this, but it does not appear so from the wording of the poskim and from the words of our teacher, the Rema, and in practice it is obvious that one must be stringent like all the opinions. And according to this opinion, regarding a rock belonging to both of them the doubt is whether one should say according to the previous opinion based on the law of guarantee, or perhaps they hold like the first opinion that on a rock belonging to both of them it is a kinyan regarding kiddushin, and so it appears from the arrangement of the wording of our teacher, the Rema, in section 9, see there.

There is one who holds that in a case where we say she revealed her intent that she does not desire the kiddushin, according to what has been explained, then it is not kiddushin even when it later reached her hand and she did not cast it from her hand as we said regarding one who threw it into her lap. And even though in section 18 we distinguished between when it reached her hand and when it was into her lap, where she should have cast them from her hand, nevertheless here she can say "I accepted it for the sake of a gift." Nevertheless, the law requires further study, for from where does she have the right to say he gave her a gift, given that he said "be betrothed to me with this"? (And the Beit Shmuel compares it to "give it to me," but it is not comparable, for there she requested it beforehand for the sake of a gift, see there; and it appears to me that one should be stringent in this). (And further study is required regarding the Beit Shmuel in subsection 17 who wrote this in the name of the Rema, for behold the Rema wrote "into her lap," see there; and as for what he wrote, that if he said at the time of giving it into her hand "be betrothed to me" she is betrothed, this is obvious, and what is he coming to teach us?)

Our sages, of blessed memory, further said there that if one said to a woman, "Be betrothed to me with a loaf," and she answered him, "Give it to the dog" – she is not betrothed; but if it was her dog – she is betrothed. And if a dog was running after her to bite her and she said to him, "Give it to this dog" – it is a case of uncertain kiddushin, for perhaps through that benefit of saving herself from it by means of this loaf, she resolved and transferred herself to be betrothed to him, as this benefit is certainly worth a perutah; or perhaps since by Torah law he is obligated to save her, it is an obligation cast upon him. And this law also, according to the opinion in section 27, deals with a case where he afterwards placed it into her lap, for her saying to him "Give it to the dog" is like saying "I do not desire you," and the placing into her lap would not be effective; but with her dog, she is betrothed even if he did not place it into her lap, and similarly with the dog running to bite her, it is a case of uncertain kiddushin even if he did not place it into her lap, for the reasons that have been explained. And according to the first explanation that we explained in section 26, that it is by reason of a courtyard, there is a distinction between a rock and a dog; for when she said "Place them on the rock," she is not betrothed when the rock is not hers even if she said "and I shall be betrothed to you," for with what would she be betrothed, as I wrote in section 27; but with a dog that is not hers, she is betrothed when she said "and I shall be betrothed to you," for this is like a guarantee when he gave it to the dog and it ate it, as a guarantee for destruction is considered like a guarantee for a person. And there are those who disagree on this as will be explained, and some say that the law of a guarantee also applies to a rock, as I wrote in section 28.

The Sages, of blessed memory, further said there that when one says to a woman, "Be betrothed to me with a loaf," and she answered him, "Give it to a poor person"—she is not betrothed even if this poor person is dependent upon her such that she supports him as a mitzvah, because she can say, "Just as I am obligated to support him, so too you are obligated to give tzedakah," and it is not considered like a giving into her hand. And why regarding a dog that was running to bite her did we say it is a case of uncertain kiddushin even though there too there is a mitzvah to save her? Because it is possible that the saving of her body is considered very significant to her, and she resolves and transfers herself [Ran]. And it appears that regarding a poor person, when she said "and I shall be betrothed to you," she is betrothed even if he is not dependent upon her table, since she said explicitly that she is betrothed through this benefit of him giving the loaf to the poor person, for this benefit is worth a perutah to her and is no less than "give a maneh to so-and-so." And so too regarding a poor person dependent upon her, when she answered without specification "give it to a poor person" and said her intention was to be betrothed to him through this, it is a case of uncertain kiddushin; and even if he is not dependent upon her, it appears the law is so. And in this law of a poor person, according to the opinion in section 27, here too even if he subsequently placed it into her lap she is not betrothed, for that which she said "give it to a poor person" was a rejection, as she does not desire him. And it is a simple matter that if she said "give it to my creditor" and he gave it to him, she is betrothed. And there is one who distinguishes between whether the creditor was pressing him to pay or not, and between a gentile creditor—where it is kiddushin—and an Israelite—where it is uncertain kiddushin; and I do not know why [see Be'er Heitev subsection 9 in the name of Maharashdam].

Our teacher, the Rema, wrote in section 11: If she said from the outset, "Give a loaf to the dog" or "Give a dinar on the rock and I shall be betrothed to you" – there are those who say that its law is like one who says "Give a dinar to so-and-so," as I wrote above in siman 29, and one should be stringent in the matter. Thus far his words. And the reason for this opinion is that they hold that just as with "Give a dinar to so-and-so" she is betrothed by the law of a guarantor, so too there is a law of guarantee in giving to a dog or on a rock, as I wrote in section 28. And there are those who say that in both of them there is no law of guarantee, for guarantee is only relevant in giving to a person and not on a rock and not to a dog and not for destruction [the Ran in the name of others]. And there are those who say that on a rock there is no guarantee but with a dog there is guarantee [ibid. in the name of the Ramban], for since he destroyed the object through her speech, there is guarantee. And from the words of our teacher, the Rema, it appears that he holds as the primary law that in both of them there is no guarantee; however, one should be stringent in kiddushin like all the opinions, and so wrote the Rosh [first chapter, siman 13], and see what I wrote in Choshen Mishpat siman 380, section 4.