Siman 36

Just as a man may appoint an agent for kiddushin, so too a woman may appoint an agent to receive kiddushin, and immediately when the agent receives the kiddushin she becomes betrothed, just as with a get where the woman appoints an agent for receipt. She must appoint him in the presence of witnesses; even according to the Rambam, who does not require witnesses for agency, nevertheless, regarding an agent for receipt he admits that witnesses are required. The reason for the matter we explained in the previous siman, section 17, see there. This is certainly so according to the rest of the poskim, who require witnesses even for the agency of the man. Nevertheless, if she did not appoint him in the presence of witnesses and he received kiddushin, one must be stringent and require her to have a get, because there are those who say that regarding kiddushin, even with an agent for receipt, witnesses are not required, as I wrote there in section 20, see there.

And just as there is a greater mitzvah for him than for his agent, as written there in section 2, so too there is a greater mitzvah for her than for her agent. And even though a woman is not commanded in pru u’rvu, nevertheless she has a mitzvah because she assists the husband in fulfilling his mitzvah [Ran, beginning of chapter 2], for we have already explained in siman 1, section 6, that even one who is not commanded in pru u’rvu, nevertheless when they fulfill it, they are performing a mitzvah, for this is the will of the Holy One, Blessed be He, to increase the habitation of His world, as written there in section 4. And regarding the collective of women, it is obvious that there is a mitzvah, for it is impossible to fulfill the mitzvah without them [and the difficulty of the Anshei Shem there is resolved], except that this is not a mitzvah incumbent upon the individual. Therefore, there is certainly a greater mitzvah for her than for her agent. However, there is no prohibition if she is betrothed through an agent without seeing him; for even though for him there is also a prohibition, as written in the previous siman there, lest she not find favor in his eyes, in the case of a woman we are not concerned for this, for a woman is satisfied with any [husband], and since she consents to be betrothed not in her presence, she will not later despise him.

And in all matters of kiddushin, the law of the woman with her agent is like the law of the agent with the man, for if he deviated from her agency, the agency is void. And if she said to the agent, "Receive the kiddushin in such-and-such a place," and he received them in another place—she is not betrothed. But if she said to him, "Behold, he is in such-and-such a place," and he received them in another place—she is betrothed, for she is merely pointing out the location to him, as has been written regarding his agency. And so too, any deviation whatsoever—the agency is void. Only regarding that which was explained there, that an agent may appoint an agent, some say that regarding an agency of reception it is not so, for the reason that words cannot be handed over to an agent, as has been written there in section 3.

How is kiddushin performed through a receiving agent? The Rambam, of blessed memory, wrote in chapter 3, law 18, that if the agent of the woman receives the kiddushin, the one performing the kiddushin says to him, "Behold, so-and-so who sent you is betrothed to me," and he says to him, "I have betrothed her to you," or "I have betrothed her to you" [using the term aras], or "I have given her to you as a wife," and anything similar to this. And if the agent said "Yes" – it is sufficient, and even if he remained silent. And if they were occupied with that matter and he gave it to the agent and did not specify and did not say anything – it is sufficient and she is betrothed. Thus far his words. And regarding that which he requires that the agent say to him "I have betrothed her to you" or that he say "Yes," some say that his reason is that if not so, we are concerned lest he retracted his agency and received the money as a deposit and not for the sake of kiddushin, and there is no clear reason why we should be concerned for this. And some say the reason is because it is written, "I gave my daughter to the man" (Deuteronomy 22:16), and he is like an agent from his daughter, and it implies that it is necessary that he say that he is giving, and this also is not logical, for the explanation of the verse is that he gave her to him with his consent. And some say the reason is that regarding the woman herself it is explicitly proven that her silence is like an admission to the kiddushin, for since she becomes forbidden to the whole world, she should have protested if she was not pleased with the kiddushin, but the agent does not care about this and there is no proof from his silence that he agrees to the kiddushin; therefore, his speech is indispensable. And this also is difficult to understand; is the agent not standing in the place of the woman? And you have no greater proof of his admission than the fact that he received the kiddushin, for who forced him to do so? And also regarding the woman herself, such is the reason, that her receipt is proof of her admission.

Therefore, it appears to me regarding the reasoning of the Rambam that certainly if the witnesses of the kiddushin know that this man is an agent from the woman, his statement is not necessary at all. That which he required the statement of the agent is because of the witnesses; for it is well understood that when they see a man who betroths a woman, there is knowledge and sight here, but when they see a man who betroths a woman by means of a man and they do not see the woman and do not know of the agency, if they do not hear words from the man where he admits to his agency, there is no clear sight or knowledge here, and it is like one who betroths without witnesses. Therefore, he required that he say "so-and-so is betrothed to you" or that he say "yes," for this is like knowledge from him that he is an agent from the woman. Therefore, if they spoke previously concerning the matters of kiddushin, nothing is necessary, for behold, the witnesses know that he is an agent.

And some say that what the Rambam wrote—that if he remained silent it is effective when they are occupied with that matter—this means the silence of the husband is effective, just as regarding one who betroths her, where his giving alone without any speech is effective when they are occupied with that matter; however, it does not refer to the agent, for regarding the agent, the speech is a requirement [Bach]. But most of the great authorities agreed that it also refers to the agent, for when they are occupied with that matter, neither the speech of the husband nor the speech of the agent is necessary [Chelkat Mechokek and Taz and Beit Shmuel]. And it is obvious that according to the reason we explained, it is so, for there is knowledge and evidence here. And so it implies explicitly from the wording of the Rambam, for if it only referred to one who betroths, it would be a redundant phrasing; see there. And according to the version before us in the Rambam, "and if they were occupied with that matter," it further implies that ex post facto his speech is not required at all even if they were not occupied with that matter [and so it appears from the Gra, subsection 2, who explains thus; see there, and it requires further study as to the law].

And regarding one who betroths with a document via a messenger, the Rambam, of blessed memory, wrote that the document must be written with the consent of the messenger, for the document of betrothal must be written with her consent, as was written in siman 32; therefore, when she appointed a messenger, her messenger is like herself, and certainly when he wrote with the consent of the woman it is effective. And there are some of our teachers who hold that it is not effective with the consent of the messenger, but only with her consent—that she should command the writing of the document—for in this we do not say her messenger is like herself. For just as with a get we require the consent of the transferor specifically, as the scribe must hear specifically from the mouth of the husband, and even if the husband says, "Tell so-and-so and he shall write," it is invalid, so too in kiddushin one requires the consent of the transferor specifically, and she is the woman, and not the consent of her messenger [Ran and Maggid Mishneh]. And according to the Rambam, it can be said that they are not comparable; for granted that regarding a get, since it is incumbent upon the husband to write the get, he himself must therefore tell the scribe to write, but a document of kiddushin is not incumbent upon the woman to write and the husband writes it, and we only require asking her consent, and the consent of her messenger is like her own. Furthermore, that "tell them to say" is invalid in a get is by reason of a decree, as was written in siman 120, or by reason of "words," as will be explained there with the help of Heaven, and in kiddushin all this is not applicable to the woman since it is not incumbent upon her to write it. Furthermore, in a get, even via a messenger, he does not mention the name of the messenger in the get, but in kiddushin, behold he writes, "Plonit, who sent you, is betrothed to me," and since he mentions the name of the messenger, her consent is effective [as mentioned above according to the Rambam]. Nevertheless, we have learned from all this that we require her consent for a document of kiddushin, meaning that she must agree to the writing of the document, and it is not enough that she agreed to the kiddushin in general; for here she sent a messenger to receive kiddushin, and even so we require the consent of her messenger or her consent according to the poskim who disagree with the Rambam [Beit Shmuel, subsection 3]. And behold, this is simple even according to the Rambam: that in the case of a husband who appointed a messenger to betroth the woman, the writing of the document is not effective with the consent of the messenger, but only with the consent of the husband, for in this it is like a get according to what we have explained [it appears to me].

And just as the husband can nullify the agency, so too can she; for if she retracted and nullified the agency before he received the kiddushin, it is nullified and she is not betrothed. And if it is not known whether she nullified the agency before the kiddushin or after the receipt of the kiddushin – she is in a state of doubtful betrothal.

And so too, if her agent received kiddushin from one man and she herself received kiddushin from another, and it is not known whether the kiddushin the agent received preceded hers or hers preceded his—she is forbidden to both of them and requires a get from both of them. And if they wished, one gives a get and one marries her, and she requires new kiddushin, for perhaps the kiddushin of the other preceded and the previous kiddushin did not take effect. And all this is when the two who performed kiddushin are distant from one another, but when they are relatives of an ervah, such as if the agent betrothed her to Reuven and she herself was betrothed to Reuven's son or to his brother—both give a get and she is forbidden to both of them, for how is it possible to be married to one of them? Perhaps the kiddushin of the other preceded and she was divorced from him, and behold, she is an ervah to the second. And all the laws of cancellation that were explained regarding a man—the same applies to a woman.

One who betrothed through a messenger should not betroth a second time at the time of the chuppah, so as not to cast aspersions on the first kiddushin, lest they say the kiddushin of a messenger are nothing. And even though we ruled in siman 34, section 12, that regarding the kiddushin of the man himself he is permitted to betroth her a second time, nevertheless, regarding the kiddushin of a messenger they were concerned, as was written there. However, some say that when the first kiddushin were without ten, he is permitted to betroth her himself a second time in the presence of ten, for the matter is proven that because he desires to betroth her in the presence of ten he betroths her once more, and not because there is a concern regarding the kiddushin of the messenger. And likewise, specifically when there are witnesses to the kiddushin of the messenger, then he is not permitted to betroth her once more; but when there are no witnesses before us, rather the messenger and the woman say she was betrothed before witnesses, in any such case there is no concern when he returns and betroths her, for in this there is no concern from onlookers since there are no witnesses to the kiddushin of the messenger [Avnei Miluim in siman 34 in the name of the Tashbetz, see there].

It has already been explained in siman 35 that a woman is fit for the agency of kiddushin and can receive kiddushin on behalf of her friend. Furthermore, even if she is receiving kiddushin for herself as well, she can receive it for her friend too, and the one performing the kiddushin says to her: "Behold you are betrothed to me and also Plonit is betrothed to me." Even though they become tzarot to one another, and in any testimony for which a woman is fit, a tzara is not believed, nevertheless, regarding her agency, once she has acted, she has acted [Rashi 52a], for the reason she is not believed is because she is suspected of causing harm, but in an act that she performs for herself, causing harm is not applicable [see there in Tosafot]. And some say further that even if at the time Rachel received kiddushin from Yaakov, Leah said to her, "Receive kiddushin from Yaakov for me as well," and she did not answer her anything and received it, and Yaakov said during the giving of the kiddushin money that he is betrothing both of them—behold the second one is also betrothed. And we do not say that behold she did not explicitly say that she is receiving on behalf of Leah; on the contrary, since she did not say that she does not wish to receive on behalf of Leah, we say that she consented to receive on behalf of Leah as well even though she becomes a tzara to her. But if she explicitly received on behalf of Leah as well, it is obvious that there is no doubt in this and it is no novelty at all [the Rosh]. And from this there is proof for what was written in section 6, that even if the agent did not answer "yes," it is kiddushin [Chelkat Mechokek subsection 8]. However, one could say that from this there is no proof, for here it is superior, since she herself is certainly betrothed, we say that her friend is also betrothed, which is not the case for an agent for reception who receives only on behalf of the one who sent him alone [Beit Shmuel subsection 2].

A woman who is an agent to receive kiddushin for her friend, and when he gave her the kiddushin he said to her, "and you also" or "and so you" and she remained silent and accepted—both are betrothed. And if he did not say to her "and you also" or "and so you" but rather "and you"—the one who received the kiddushin is in a state of doubtful betrothal, for perhaps he only intended to see what was in her heart, as if he said to her, "and you, what do you say about this matter." Therefore, even though she accepted and remained silent, it can be said that she too is considering this matter as he is asking her, but she did not agree now to kiddushin. Therefore, it is a doubtful betrothal, for it can be said that they intended for the sake of kiddushin; and specifically when there are two perutot, not less. And if he betrothed Rachel while Leah was standing there, and he gave a peruta to Leah and said to her "and you"—it is a complete betrothal. For specifically when Leah received on behalf of Rachel, then it can be said regarding what he said to Leah "and you" as we have written, and she was not concerned with answering him since it was upon her to receive on behalf of Rachel. But when Rachel received for herself and he said to her "behold you are betrothed to me," if so, when he gave to Leah and she accepted and he said to her "and you"—it is obvious that both intended for the sake of a complete betrothal, for if not so, why did he give to her and why did she accept [Chelkat Mechokek and Beit Shmuel].

From the perspective of logical reasoning, it appears that the case where it is a doubt when he says to her "and you," this is when he gives her two perutot and says to her at the time of giving, "Behold, so-and-so who sent you is mekudeshet to me, and you," or "and you also," regarding certain kiddushin. However, if he gave her the two perutot and said to her, "Behold, so-and-so who sent you is mekudeshet to me," and paused a little, even less than the time of a speech-utterance, and said to her "and you" or "and you also"—there is no substance to her kiddushin. Firstly, for we maintain that in kiddushin, within the time of a speech-utterance is not like the utterance itself. Furthermore, since he delivered the two perutot to her for the sake of her friend, her friend has already acquired all the money, even if it were a thousand dinarin; if so, with what is he mekadesh her? However, from the wording of the Tur, who wrote: If she is an agent to receive kiddushin for her friend, and after he gave the kiddushin into her hand he said to her "you also"—both are mekudeshot, but if he said to her "and you"—the one who received it is doubtfully mekudeshet. Thus far his words. It implies explicitly that even in such a case it is effective. And it must be said that regarding that which we maintain—that within the time of a speech-utterance is not like the utterance itself in kiddushin—this is only regarding retraction, and so wrote our teacher, the Beit Yosef, in his book Bedek HaBayit. And even though if so, consequently, since regarding retraction it is not like the utterance itself, the money belongs to the second woman, and with what is he mekadesh her? And it must be said that it deals with a case where he intended from the outset for this purpose, such that consequently the second woman did not acquire all the money. But if he did not intend from the outset, but rather decided to mekadesh her as well, even if the decision was within the time of a speech-utterance, nevertheless he has nothing with which to mekadesh her, for the money belongs to the second woman [Avnei Milluim]. And if we say that he added money for her, then it is obvious that it would be kiddushin even with "you" alone, as was written regarding two women and two givings in the previous section.

Yaakov betrothed Rachel and said to her, "Behold, you are betrothed to me," and gave her two perutot, and said to Leah, "and you also," and she consented—behold, both are betrothed, for behold, Rachel received on her own behalf and on behalf of Leah, and even though Rachel remained silent and who says that she received on behalf of Leah as well, for Leah did not previously make her an agent, it can be said that if it were not her will to do so, she should have responded, "I am only receiving on my own behalf," and why did she remain silent when Yaakov said to Leah, "and you also," rather, certainly she consented to this. But if he said to Leah "and you" alone—it is a case of uncertain kiddushin, for even though it is more evident to say that his meaning is "and you also," nevertheless, since it can also be interpreted that this is what he said to her: "and you shall see the kiddushin that I am performing for Rachel," even though it is a distant interpretation, nevertheless this is not explicit kiddushin regarding Leah but rather like a yad for kiddushin, and it is a legal uncertainty whether there is a yad for kiddushin or not, and even though "yadot that are not proving" are not considered yadot according to most poskim as I wrote in siman 27, section 1 and section 27, see there, but regarding "proving yadot" they are considered yadot for all matters, and only regarding kiddushin are we in doubt whether there is a yad for kiddushin or not.

And know, that this law which we have written is according to the interpretation of our teachers in the sugya of the Shas there, and it is a legal doubt whether there is a "handle" for kiddushin or not. And according to this, regarding the law written by the Tur and the Shulchan Aruch in siman 27, section 4, regarding one who betrothed a woman and said to another in her presence, "Be betrothed," and did not say "to me," that it is a case of doubtful kiddushin, see there; and we explained the reason there in section 28 according to the words of our teacher, the Beit Yosef, there in his great book, that the doubt is because perhaps he intended to betroth her through another witness. But according to what we have explained here, that it is a legal doubt regarding the core of the law of whether there is a handle for kiddushin or not—the reason is simple, because even though it is a "demonstrative handle," nevertheless there is a doubt whether there is a handle for kiddushin or not [and so wrote the Gra there in subsection 24]. However, in truth it is one and the same matter, for since there is a doubt regarding another intention, even though it is a remote interpretation, nevertheless since one must be doubtful of it, this is not explicit kiddushin but rather constitutes handles, and it is a doubt whether there is a handle for kiddushin or not. But if there were no doubt at all in his words, this is not a handle but rather constitutes complete kiddushin. And also the law we wrote in section 12, which is according to the interpretation of the Rambam in chapter 4 there in the sugya, also the doubt there is due to the legal doubt of whether there is a handle for kiddushin or not [and it requires further study regarding the Rosh, who omitted in his rulings in the first chapter, section 2, and in Nedarim there, whether there is a handle for kiddushin or not; and likewise the Ramban in the laws of Nedarim did not write this; and on the contrary, from the Rosh in Kiddushin there it implies that with a demonstrative handle there is a handle for kiddushin; and it can be answered with difficulty that it is all one and the same matter, and it requires great further study, and delve into it].

There are some of the great authorities who said that ab initio it is not proper for the father to be an agent for his adult daughter to receive kiddushin on her behalf, and his reasoning is that since with a minor and a maiden the father has the authority to betroth his daughter even without her consent, observers will also err regarding an adult daughter to say that her consent is not required at all. But all the great authorities disagreed with him, for it is a new decree and is not found in the Shas; on the contrary, it is explicitly stated otherwise [64b], and it is not implied there that it is specifically post facto. Nevertheless, it appears to me that when she has made him an agent, he should not appoint another agent, even if we say that in kiddushin as well an agent may appoint an agent. For this is certainly so: when the agent of the father comes to receive the kiddushin and says that he is his agent, the listeners will certainly err and think that the father is appointing an agent to receive kiddushin for his adult daughter, and they will not know that he is a second agent and the father is also an agent from his daughter [and perhaps it was in such a case that the Rashba spoke].

And there is one who says that nevertheless, if it truly occurred that a father received kiddushin on behalf of his adult daughter without her knowledge, she requires a get due to doubt, lest she consented to her father's kiddushin. And certainly, according to the law, even in this case there is no doubtful kiddushin here, for we do not concern ourselves that perhaps she consented; rather, because of the stringency of forbidden relations, we require her to have a get, and if we heard explicitly that she protested—she does not require a get. And if we saw from her some hint that it was pleasing to her—it certainly becomes a doubtful kiddushin, and it depends on the assessment of the beit din according to the matter.

Our teacher, the Beit Yosef, wrote in section 12: A woman may not appoint a messenger to receive kiddushin from the hand of her husband's messenger, and if she did so, she is in a state of doubtful kiddushin. Thus far his words. And regarding a get, there is a dispute in this matter as is written in siman 141, and according to the one who forbids there, there are two reasons for this in the Gemara [Gittin 63b] – either because of the slight to the husband, as he thinks she holds him in low esteem since she does not receive it herself, or because of "her courtyard that comes afterward," meaning that we decree lest after the husband places the get in the courtyard of another, she should acquire the courtyard and they will say she is divorced, for this is like a messenger from a messenger, and in this it is simple that it is not a get, for we require that he place it in her hand or in her domain such that it is her domain at the time of the giving. And the practical difference between the two reasons is – that according to the first reason it is a concern of a Torah disqualification, and conversely, if the husband knows of this and does not object, it is permitted even initially; and according to the second reason it is a rabbinic decree and his knowledge is of no avail. Now, the second reason is not relevant to kiddushin at all, for in kiddushin we do not require that he give it into her hand or her domain from his hand, for even with a deposit she is betrothed. According to this, one must wonder about our teacher, the Beit Yosef, for in Gittin there he brought both opinions, yet in kiddushin, which is more lenient, he decided the law to forbid [see Beit Shmuel]. And it is possible to say that he holds that in kiddushin everyone holds that the husband objects to this, for specifically regarding a get, where they are being separated from one another, there is one who holds that he does not object to being unimportant in her eyes, but in kiddushin he certainly objects, and logic dictates this [and in Yevamot 34 it deals with their knowledge, and all that they questioned there is settled].

There is one who says that even though it has been explained that a woman may become an agent for her fellow woman even in a situation where they become rival wives to one another, nevertheless, his own married wife cannot be made an agent for another woman to receive kiddushin from the hand of her own husband, for the hand of a wife is like the hand of her husband and the kiddushin have not left his domain, and this is a logical reason—and nevertheless, in practice one should be stringent. And so too regarding a get, his own wife cannot be an agent for receipt on behalf of her rival wife—and in practice one should be stringent.