Siman 40

One who says to a woman, "Behold, you are betrothed to me after thirty days," and gave her the money of the kiddushin now—all thirty days she is completely unmarried, and if she were the daughter of a kohen betrothed to an Israelite, she may eat terumah. After thirty days, she is completely betrothed, and if she were the daughter of an Israelite betrothed to a kohen, she may eat terumah according to the Torah even if the money was consumed. This is not similar to a loan, for one who betroths with a loan, she is not betrothed, nor to a deposit where we require that a perutah's worth remains. For a loan is given to be spent and it is as if he gave her nothing, and a deposit is in the domain of the depositor. However, these funds were given for kiddushin and they are hers, and she is eating from her own. Since from the beginning he gave them to her with the intent of kiddushin, even though at the time the kiddushin take effect those zuzim are not present, she originally acquired herself with those zuzim.

And even though we establish in Choshen Mishpat siman 196 regarding one who says to his fellow, "Pull this cow but you shall not acquire it until after thirty days," that he has not acquired it—for there the kinyan is pulling, and after thirty days there is no substance to it, and with what would he acquire it? However, here the money is as if it is in existence for the reason we explained, and if she retracts she must return it; behold the money is as if he gave it to her after thirty days. And according to this, some say that if he betrothed her with a shetar and it is not in existence after thirty days, but rather was torn or lost or is not in his possession, that it is not kiddushin [ibid.]. And all the more so if he betrothed her through biah such that the kiddushin should take effect after a time, that she is not betrothed [it appears to me]. And only if the paper is worth a perutah would it be like kiddushin of money for stringency, as written in siman 28; see there.

If he retracted within the thirty days or she retracted, such as if they said "we do not desire the kiddushin" – the kiddushin are void, for speech comes and voids speech. And even though we hold that speech does not come and void an action, and here there is an action of the giving of the money, nevertheless this is not called an action, for until the taking effect of the kiddushin it is like mere speech, just as with one who sends a get to his wife, who can void it as written in siman 141; see there. And if she retracted, it is obvious that she must return the kiddushin money. And if he retracted, some say she does not need to return it, for if we say that until the taking effect of the kiddushin the money is in his possession, then if it was consumed, why is she betrothed? [ibid.] And that which she must return when she retracts is for another reason, and automatically the money remains a debt upon her since the prevention is from her side. And some say that even if he retracts she must return it, for he only gave it to her for kiddushin, and since he does not desire the kiddushin, she is obligated to return it. And that which she is betrothed if the money was consumed is because it came into her hand by way of kiddushin, and they are as if they were in existence when there was no retraction [Maharit].

And there is reason to be in doubt when they retracted the kiddushin and the money or the kiddushin document is still in her possession, and afterwards, before the completion of the thirty days, they retracted again and consented, whether the first kiddushin are established and we say even in this case that the speech of consent comes and nullifies the speech of retraction, or perhaps as soon as they retracted, the first kiddushin were nullified and we do not say that the third speech comes and establishes the first speech. And regarding kiddushin of money, certainly there is no doubt that it is not kiddushin, for whichever way you look at it: in a case where upon retraction the money remains hers, then necessarily when they consent he must give her money anew and betroth her; and in a case where she must return the money to him upon retraction and she has not yet returned it and the money is a debt upon her, then one who betroths with a loan, she is not betrothed. However, regarding kiddushin of a document, there is reason to be in doubt when the document is extant in her possession [and it is possible to resolve this from the beginning of the fourth chapter of Gittin from the dispute of Rabban Gamliel and Rabbi Shimon regarding whether he may go back and divorce with it, as written in siman 141, but there is no proof from there for a kiddushin document that is in the woman's possession, and examine this closely] [afterwards I saw in the Chiddushei ha-Rashba that retraction after retraction is not effective].

There are some of the Rishonim who wrote that regarding the retraction of the kiddushin, we specifically require it to be before two witnesses, but if she retracted privately, even if they heard from behind the fence that she is canceling the kiddushin, this is only like a mere thought and not like speech [Ritva]. And the reason can be explained that since their ability to cancel the kiddushin is because speech comes and cancels speech as I have written, if so, just as the speech of the kiddushin was before two witnesses, so too must the speech of the cancellation be, and like the cancellation of the agency for a get which also specifically requires two witnesses as I have written in siman 141. However, in all the poskim this law is not clarified and it requires further study as a matter of law, and certainly if she canceled in his presence or he in her presence, it certainly appears that it is a cancellation, for even regarding a get there are those who hold that when one cancels in the presence of the agent that witnesses are not required as I have written there; however, it is certain that when she canceled before two witnesses, even though she canceled not in his presence, it is a cancellation, and likewise if he canceled before two witnesses not in her presence.

And there is a doubt if he or she says after thirty days that they nullified it within thirty days before two witnesses and they went to a country across the sea or died, if they are believed by virtue of a migo. For he has a migo that if he wanted he could have divorced her, and she has a migo of "you divorced me" for which she is believed by the law of the Gemara. Or perhaps this is not a good migo, for it is not pleasing to him to say that he divorced her so that he should not be forbidden to her relatives if she is an important woman, and even if she is not important, perhaps his desire now is to marry one of her relatives [and from Ketubot 75a there is no proof, see there]. And also her migo is not a complete migo, for it is a migo of audacity. Therefore it appears that in practice one should not release her without a get when there are no witnesses that they nullified it, and all the more so when they contradict one another. And if both of them admit that they nullified it, perhaps they are believed; nevertheless, in practice one must deliberate on the matter [see Pitchei Teshuva subsection 3 what he wrote from the Shaar HaMelekh].

One who betrothes a woman for thirty days, such that afterwards she would be unattached without a get—it is of no effect, and behold she is betrothed forever. For even though consecration for a time is considered consecration, nevertheless even regarding consecration we maintain that sanctity does not lapse on its own. And even if regarding consecration it departs after a time to a non-sacred status without anything, nevertheless the sanctity of a woman does not depart without a get. And behold, even regarding gittin we maintain that when one divorces her for thirty days, she is divorced forever, since once it is severed, it is severed. And all the more so regarding kiddushin, that the kiddushin spreads forever. And some say that this is regarding kiddushin with money, but with a shetar it is a case of uncertain kiddushin, according to what will be explained in siman 137, that regarding a get she is uncertainly divorced; and the same applies here regarding kiddushin with a shetar, there is a doubt if the kiddushin take effect at all in such a case or not, for so it is stated in the Yerushalmi.

One who betroths a woman [to take effect] after thirty days, as has been explained, and another came and betrothed her within the thirty days—she is betrothed to the second forever. The Rambam wrote in chapter 7 the reason: because at the time the second betrothed her, she was not betrothed, and the betrothal of the second took hold of her and she became a married woman; and after the thirty days, when the betrothal of the first comes, it finds her a married woman, and it turns out the first is like one who betrothed a married woman, whose betrothal does not take hold of her. Thus far his words. From this wording it may be inferred that if the second died or divorced her within thirty days, the betrothal of the first returns. The Tur also wrote that there are some among the early authorities who hold this, and even though in a case of retraction the betrothal is completely void because she retracted explicitly, here, regarding the fact that she accepted betrothal from another, it can be said that her intention is not to retract from the betrothal of the first completely, but rather her intention is still that if it will be possible, the betrothal of the first shall take effect [Ran].

And there are some of our teachers who disagree on this and hold that the kiddushin of the first were canceled immediately when she accepted kiddushin from the second forever, and even if she was divorced from the second or he died; on the contrary, the acceptance of kiddushin from the second is superior to a retraction, for a retraction is only in speech, whereas the acceptance of kiddushin is a cancellation through action [the Rosh at the beginning of chapter 3 and the Rashba]. However, according to the first opinion, it is explained in the Yerushalmi, and it is further explained there that if the second died and left a brother so that she is bound to a yavam, the kiddushin of the first do not take effect after thirty days, for she is still bound to the kiddushin of the second. And there are some of our teachers who were stringent even in this, and the reason is—that the Yerushalmi holds that kiddushin do not take effect on a yevama [like Rav in Yevamot 92b], but we hold that it is a doubt as written in siman 44, and therefore the bond of the yevamin does not prevent the kiddushin of the first from taking effect, and she requires a get from the first [the Ramban] and chalitzah from the brother of the second. And it is forbidden to perform yibbum with her according to this opinion before the first divorces her, but afterward it is permitted to perform yibbum with her according to the law of a yevama who accepted kiddushin from another inadvertently, where the other divorces her and the yavam performs yibbum as written in siman 159, and here too it is no worse than inadvertent kiddushin [it appears to me].

There is one who says that since it has been explained regarding one who betroths after thirty days that she is betrothed even if the money was consumed, the same law applies if she returned the money to him and did not cancel the kiddushin, that it is kiddushin, and we say that she gave them to him as a gift, as our teacher, the Rema, wrote in Yoreh Deah siman 305 regarding the matter of pidyon haben, that returning is like being consumed. And it seems to me that certainly if she explicitly gave it as a gift, it is no worse than being consumed; however, if she returned it to him without specification, even if she said that she is not canceling the kiddushin, nevertheless her speech is nothing, for with what is he betrothing her since she returned the money to him? And it is not similar to being consumed, since she benefited from them and they were given for the sake of kiddushin, it is rightly kiddushin, but in a case of returning, with what is he betrothing her? And that which returning is equal to being consumed, this is the opposite, as in pidyon haben, for just as being consumed is not effective there according to the opinion of our teacher, the Rema, so too returning is not effective; but to say that just as being consumed is effective, so too returning, this is no proof, and in any case it would be a case of doubtful kiddushin. And so too one must doubt if she did not benefit from the money, such as if they were stolen or lost from her within thirty days, do we say that specifically when she benefited from them the kiddushin take effect, or perhaps even in such a case the kiddushin take effect [from the Ritva it is implied that the primary factor is because of the benefit, see there page 6 regarding a loan, but from the Rashba at the beginning of the third chapter it is explained that the kiddushin is because she is obligated to return it when she does not desire the kiddushin and it is like the benefit of the forgiveness of a loan, if so, even in such a case it would be kiddushin, and also according to this one must doubt when it was lost from her by an unavoidable accident, and see Pitchei Teshuvah subsection 1 in the name of the Gara who also doubted the law of an unavoidable accident, and according to what I wrote, one must doubt even if they were lost without an unavoidable accident].

One who says to a woman, "Behold, you are betrothed to me with this perutah from now and after thirty days," and another came and betrothed her within the thirty days—behold, she is betrothed out of doubt to both of them; therefore, both of them give a get, whether within the thirty days or after the thirty days. And the reason for the matter is because there is a doubt regarding the first one who said "from now and after thirty days" as to what his intention was: if his intention was "from now, provided that I do not retract within thirty days," then if he did not retract within thirty days, the betrothal of the first took effect from the first moment and the betrothal of the second is nothing; or perhaps that which he said "and after thirty days" is a retraction of his first words where he said "from now," and his desire was that the betrothal should not take effect from now but rather after thirty days, and if so, the betrothal of the second took effect and those of the first are void. And because of this, it is a doubt for both of them and she requires a get from both of them.

And according to this, in a case where one betroths a woman "from now and after thirty days," he can retract within the thirty days regardless—for if his intention was as long as he does not retract, behold he has retracted; and even if his intention was that the kiddushin should take effect after thirty days and he retracted from the "from now," it has already been explained that one who betroths after thirty days can retract. But she—she cannot retract, for perhaps his intention was on condition that he does not retract, and he made the condition dependent on him and not on her. Therefore, if she retracted within the thirty days, she requires a get due to doubt, for perhaps he retracted from the "from now" and she also can retract, as I have written.

But there are some of our teachers who explained that there is another doubt regarding his words, for perhaps his intention was "from now" if it will be after thirty days, and according to this, even he cannot retract if he did not die until the completion of the thirty days. Therefore, even if he retracted or both of them retracted – she requires a get due to doubt. And so too, if he died within thirty days and did not retract, it is a case of doubtful kiddushin and she performs chalitzah. But if he retracted and died within thirty days – according to all opinions the kiddushin are voided. And it is a simple matter that if he said "from now, and you shall not be betrothed with it until after thirty days" or "from now if it reaches until thirty days" – that it is certainly a condition if he does not retract until thirty days, and he can retract but she cannot. And it is possible that "if it reaches until thirty days" means if he lives until thirty days and according to what I have written, and it requires further study for the law.

There is a question regarding this for the poskim who hold in siman 38 that even with "from now" one requires a double condition; if so, how is it possible to say regarding "from now and after thirty days" that his intention was for a condition, for he did not double his condition? And if his intention was for a condition, then the condition is automatically void and the act stands, and it would be a complete kiddushin from now and he would be unable to retract. And if we say he did double his condition, if so, how is it possible to say there is a doubt lest he retracted, since his doubling of the condition was explicit? And one cannot say that we indeed say so—that he did not double the condition, and if his intention was truly for a condition, the condition is void and he cannot retract—for it does not imply thus from all the poskim. The answer to this is that a condition such as this, where he stipulates if he does not retract from the kiddushin until thirty days, is not similar to all other conditions and we do not require a double condition for it, since it is upon the essence of the kiddushin, and it is not similar to the condition of the children of Gad and the children of Reuven. And this is not like a condition and an act in one matter which is deficient as I wrote there; this is because his desire is to fulfill the kiddushin and he stipulates regarding this itself, and it would be two opposites in one subject. This is not the case when the condition is truly to retract from the kiddushin; who can force him to desire the kiddushin? And this is nothing other than a form of deliberation. And also according to the explanation of our teachers in section 13, it is also like this, for this is not a side condition but rather if he shall live; for when he does not live, why does he need the kiddushin and why should he require her to perform chalitzah for nothing? And this is also like a form of deliberation, that he shall see what will become of him, and it does not require a double condition. And for this reason also there is no concern of bereirah in this, for the reason we wrote there in section 67 is not applicable here, see there [it appears to me].

And that which we wrote, that both of them give a get whether within thirty days or after thirty days, so wrote the Rambam in chapter 7 and in the Shulchan Aruch section 3. And even though it is not appropriate for the first one to give a get within thirty days—for even if we say it is a condition, the kiddushin are not finalized until thirty days, and certainly if it is a retraction, the kiddushin did not begin within thirty days at all; for on the contrary, if it is a retraction, this get itself is a retraction and what does it matter to us if he writes it for nothing? And if it is a condition, the get is also valid, for with the arrival of the time it is revealed that at the time of the writing of the get she was betrothed and was eligible for divorce. And the second one as well, who divorces within thirty days, it is because he betrothed without any time [limitation] at all; and if the "from now" of the first was a retraction, she is betrothed to him immediately, for both of them retracted the kiddushin of the first and his get is a get; and if the first was a condition, the kiddushin of the second are nothing. And if another did not come and betroth her, it is possible that he cannot divorce her within thirty days, for perhaps it was a retraction and the get does not take effect at all [Mishneh LaMelech chapter 6 of Divorce], and if so, when the thirty days are completed the kiddushin will take effect and they will think that she is divorced. Nevertheless, it seems that there is no need for a get after thirty days, for since it is a retraction, both of them retracted the kiddushin; is a get inferior to a retraction? Rather, the get is superfluous if it was a retraction, but the get is necessary because of the doubt of a condition, and if so, even if it was a retraction, they have retracted [ibid.]. But some say that from the first, a get does not avail within thirty days due to the doubt that perhaps his intention was for a condition, for there is no get except after the completion of kiddushin; therefore, since before thirty days the kiddushin were not completely finalized, the get does not take effect at all, and when the thirtieth day arrives and he did not retract and he is alive, she is a married woman and requires another get [Rashba in Responsa siman 707].

And this, that we required that both of them give her a get, this is when her desire is to marry another; but if her desire is to belong to one of them – the other gives her a get and she is permitted to the second, and so wrote the Tur, see there. And some say that only the first shall divorce her and she is permitted to the second and not vice versa [Beit Shmuel in the name of the Maharshal] so that they should not say the first divorced and the second married and divorced her and the first returned and married her, as we are concerned for this in siman 31, see there. However, here this concern is not applicable, for it is impossible to say that the first divorced her within thirty days, for whether his intention was for a condition or for a retraction, in any case the kiddushin are pending and standing until the completion of the thirty days, and it is not applicable to say that the second married her within thirty days. Nevertheless, one should be stringent [see Beit Shmuel at the end of subsection 7].

The Rambam, of blessed memory, wrote [ibid.]: If one said to her, "Behold, you are betrothed to me from now and after thirty days," and another came and said, "Behold, you are betrothed to me from now and after twenty days," and another came and said, "Behold, you are betrothed to me from now and after ten days," even if there are a hundred in this order—the betrothals of all of them take effect upon her, and she requires a get from each and every one because she is doubtfully betrothed to all of them. Thus far his words, and so wrote the Shulchan Aruch. And from the end of the wording it is implied that for all of them it is a doubtful betrothal, meaning to this one or to that one, for the reason that has been explained, that we are in doubt regarding the expression "from now," whether it is a condition and the betrothal of the first takes effect, or a retraction and the betrothal of the last takes effect. And even though according to this, from the middle ones, in any case, she should not require a get, and indeed the Rosh, of blessed memory, rules so as the Tur wrote, nevertheless, it can be said that the Rambam holds that this expression is not an expression that is equal among all people. And if so, it can be said that this one intended a condition and that one a retraction, and if so, there is room for doubt that perhaps the first and the last intended a retraction and the middle one intended a condition and his betrothal takes effect. There is no limit to these doubts; therefore, even if a hundred betrothed her in this manner—she requires a get from all of them. And there are those of the early authorities who hold so [see Maggid Mishneh and Beit Yosef].

However, that which he wrote, "the kiddushin of all of them take effect upon her" – from this language it implies that it is not due to a doubt because it is hidden from him whose kiddushin took effect, but rather that all of them truly have a partial effect of kiddushin. For indeed there are those who rule thus, that anyone who says "from now and after a time," it is a beginning of kiddushin without a conclusion, and therefore if afterward another betrothed her with this language, his kiddushin also take effect in part, and so on up to a hundred. And even though it is impossible for a woman to be betrothed in halves, this is certainly so when he left over a part in the body of the woman, but here he did not leave over anything in the body of the woman, but rather they all conclude [Tosafot ibid.].

And there is a practical legal difference between them, for based on the reason of doubt, she does not require a get unless the second one limited his time before the conclusion of the time of the first, and so too for all of them; but if the second one limited his time after the time of the first—his kiddushin do not take effect, for the kiddushin of the first already took effect at the conclusion of his time, whether it was a condition or whether it was a retraction. However, if the kiddushin of all of them take effect in her, there is no distinction in this, for the first left room for anyone who would betroth her within thirty days [Ran]. And from the language of the Rambam, it is implied that this is specifically in this order, when the time of the latter concludes within the time of the former. However, according to what I wrote, that there is a doubt that perhaps this one intended the language of a condition and that one the language of a retraction, even based on the reason of doubt she requires a get from the second even if his time is after the time of the first. For perhaps the first was of retraction and the second was of condition, and since the second betrothed her on condition that he does not retract until the conclusion of his time and he did not retract, automatically the kiddushin of the first, which were of retraction, are nothing; for behold, the kiddushin of the second preceded them, since his kiddushin were "from now," and this was before the conclusion of the time of the first [see Chelkat Mechokek, subsection 9].

It appears that the Rambam explains that the one who holds in the Gemara that the kiddushin of all of them take effect in her does not mean certain kiddushin, for indeed it is difficult to say that several kiddushin could take effect in one woman; rather, the intention is also that it is all due to doubt, for perhaps for this one it was a condition and for that one a retraction, as I have written. And that which he wrote, "that all of them are in this order," the intention is not that the time of the second should be swallowed within the time of the first, but rather that all of them are in this order, that each one said "from now and after a time" [and see Maggid Mishneh and Kesef Mishneh; and this is what is said in the Gemara, that each and every one left space, meaning that there is space between one and the other for the kiddushin of this one or that one to take effect for the reason that has been explained, and automatically all of them take effect in her out of doubt regarding the matter of a get like a row of bricks; and see Rashi there and the Maharsha, and according to what I have written it fits well, and examine this].

One who betrothes with a document "from now and after thirty days," the document must exist in the possession of the woman after thirty days. For even though if it were a condition this would not be necessary, since at the conclusion of the thirty days the kiddushin would have already been completed previously, nevertheless, perhaps she retracted and the kiddushin do not take effect until after thirty. And also according to the opinion that was explained that all of them take hold in her because the completion of the kiddushin is after thirty and it is not a complete acquisition until thirty, even if it were a condition she is not his complete wife beforehand even if the condition was fulfilled, for behold, the kiddushin of the second also take hold in her. Therefore, even according to this opinion, the document must be in her possession at the time the acquisition is completed [Ran, and see Beit Shmuel at the end of siman 108]. And see what I wrote in siman 146 and in Choshen Mishpat siman 197, and it was explained there that with "from now" he acquires even if it is standing in a public domain after thirty days because the acquisition was already completed, see there; nevertheless, regarding kiddushin it is not completed according to this opinion until the conclusion of the time [and it requires further study how kiddushin differs from anything else, and according to what I wrote regarding the view of the Rambam, even this opinion holds so, and examine this closely].

Any woman whom he cannot betroth now because kiddushin do not take effect with her—he cannot betroth her now even for the time when the kiddushin would take effect, for it is like a matter that has not yet come into the world. Therefore, one who says to a woman, "Behold, you are betrothed to me with this perutah after I convert," or "after you convert," or "after I am liberated," "after you are liberated," or "after your husband dies or divorces you," or "after your sister, who is my wife, dies," and the like—she is not betrothed even when the time arrives, even if the kiddushin money is with her then, and she does not require a get and requires new kiddushin if he desires to marry her. She must return the kiddushin money to him, and we do not say that he gave them to her as a gift as in the case of one who betroths his sister, for there everyone knows that kiddushin do not take effect with his sister and he certainly gave it as a gift; but here, he erred by saying that the kiddushin would take effect when the time arrives and he did not give it to her as a gift. According to this, when the time arrives, he can betroth her with these funds and does not need to take them from her, for they are like a deposit, and when the funds are then in her possession, he shall say to her, "Behold, you are betrothed to me with these funds" [as is implied in the Beit Shmuel, subsection 9] [see Choshen Mishpat siman 209, that some say when one said "it shall be acquired by you when it comes into the world"—he has acquired it, but regarding kiddushin this is not applicable, for the essence is the speech and the speech must be afterwards, and examine this closely].

If one betrothed her after thirty days, and another came and betrothed her within the thirty days and said to her, "after your husband dies" – she is betrothed, because he is able to betroth her now within the thirty days. And even if the first one said, "from now and after thirty days," and the second betrothed her after the first one dies, she also requires a get from the second one as well; for if he had betrothed her within the thirty days, she would be betrothed out of doubt, perhaps the first intended to retract as has been written, and therefore even if he said "after he dies," it is also a doubt [Bach and Chelkat Mechokek].

One who is subject to yibum, kiddushin take effect for her out of doubt, as has been written in siman 159. Therefore, one who says to her, "Behold, you are betrothed to me with this perutah after your yavam performs chalitzah for you" – she is betrothed out of doubt, for perhaps kiddushin take effect for her now, and it also takes effect after a time out of doubt. And similarly, if he betrothed her now, she is also betrothed out of doubt, and consequently it is forbidden for the yavam to perform yibum with her before this man has given her a get.

One who gives two perutot to an unmarried woman and says to her, "Behold, you are betrothed to me today with one, and with the other after I divorce you," she is now betrothed, and when he divorces her, it is a case of uncertain kiddushin. The uncertainty is whether we say that since the kiddushin takes effect in her now, it also takes effect after he divorces her, or perhaps it does not take effect. And even though according to the principle we have established that anyone who has the power to betroth now can betroth her for a later time, and behold he can betroth her now, it is different there because that same kiddushin itself that he betroths her for a later time he could have effected now. But here, that second kiddushin that he betroths her with now for a later time, he cannot effect now, for he is currently applying another kiddushin to her, such that it is impossible for that second kiddushin to take effect now. Since this is so, it is possible to say that after the divorce it also does not take effect.

And there is a question regarding this: Do we not maintain that one who says to his fellow, "This field that I am selling to you now, when I buy it back from you afterwards, it shall be hekdesh" – the sanctity takes effect [Ketubot 59b]? And the Rambam ruled accordingly in the sixth chapter of Arachin, for the reason that since he is able to consecrate it now, he is able to consecrate it for a later time. And it is necessary to differentiate as has been written, because regarding a woman there is currently a different sanctity. Yet regarding hekdesh, the sanctity takes effect even though there is currently a different sanctity, as the Rambam wrote at the end of the fourth chapter of Me'ilah, that one who says, "Behold these saplings are a korban for me until they are cut," and he redeemed them, they return and become sanctified because he sanctified them now and also sanctified them for when they are redeemed. However, our sages, of blessed memory, [Nedarim 30a] asked this question and differentiated that regarding saplings as well, it is specifically when he redeemed them that they return and become sanctified, for since the saplings did not leave the domain of hekdesh or his domain, it is the law that they should return and become sanctified; but if another redeemed them, they do not return and become sanctified. And regarding a woman as well, when he divorces her, behold she leaves his domain and is considered like "another redeemed them." And even though she also agrees that the kiddushin should take effect even after the divorce, nevertheless the act of kiddushin depends on him and not on her, as it is written "When a man takes a woman" and not "When a woman is taken by a man." Therefore, when she says, "Behold I sanctify myself to you" – it is nothing, as has been written in siman 27, and only her consent is required, but he is the one who sanctifies her. Therefore, when she is divorced, behold she leaves his domain entirely and is comparable to "another redeemed them" [Ran ibid.].

And all this we have explained according to the opinion of our teachers, the authors of the Shulchan Aruch in section 7, who ruled that it is a case of doubtful kiddushin. However, the Rambam, of blessed memory, in chapter 7, and likewise the Tur, ruled that it is certain kiddushin. And the Rashba, of blessed memory, ruled likewise [ibid.] for the reasons that were explained, that this is exactly comparable to hekdesh. And even though in the Gemara there it remained in doubt, nevertheless, we resolve it from the other sugya that we brought, and they do not make the fine distinctions that we explained; and as for the woman, since she is consenting to this, they also have the ability to effect kiddushin now and also after a time. Our teacher, the Beit Yosef, follows his consistent approach, as he wrote in his great work, that it is possible that even the Rambam’s intention was for doubtful kiddushin, but the Rishonim did not write so. However, regarding the law, there is no practical difference, for we follow the stringent view according to the opinion that disagrees with the Rambam, and if she received kiddushin from another, she also requires a get from him; therefore, it is possible that they did not write the opinion of the Rambam in the Shulchan Aruch. And know, that even according to the Rambam, if they wished to retract the second kiddushin, they may retract them, for it is like one who betroths a woman after a time [the Maggid Mishneh]. And it is possible that even if he said "from now," she can retract; even though with "from now" she cannot retract, that is because the kiddushin took effect from now, but here it is not within the power to take effect from now because of the first kiddushin, and therefore it is possible that she can retract [ibid.]. And it is a simple matter that one who gives a perutah to his wife and said to her, "Behold, you are betrothed to me after I divorce you" — it is nothing, for it is not within his power to betroth her now as she is already betrothed, and therefore regarding this matter her law is like one who says so to the wife of his fellow, which is not effective because it is not within his power to betroth her now, and here it is the same.

The Rambam, of blessed memory, wrote in chapter 7: One who says to his fellow, "If your wife gives birth to a female, she is hereby betrothed to me with this" — he has said nothing; but if the wife of his fellow was pregnant and the fetus was recognizable — she is betrothed, and it appears to me that he must return and betroth her after she is born through her father, so that he may bring her into a betrothal in which there is no flaw. Thus far his words. And he holds that that which the sages, of blessed memory, said [62b] that where the fetus was recognizable she is betrothed, this is not only according to the one who holds that a person may transfer ownership of something that has not yet come into the world, but even according to us, who establish that a person cannot transfer ownership of something that has not yet come into the world, she is betrothed, for a recognizable fetus is like something that has come into the world. Many disagree with this, and therefore in the law it is a case of uncertain betrothal, and so our teacher, the Beit Yosef, ruled in section 8. And even though in Choshen Mishpat siman 209 regarding acquisition he did not distinguish in this matter, we have already explained in Choshen Mishpat there, section 6, that because of the severity of the prohibition of a married woman, he was concerned for the opinion of the Rambam, see there. However, the Rambam himself in chapter 22 of Mechirah wrote that one who grants to a fetus does not acquire, and he also did not distinguish between a recognizable fetus and one not recognizable. According to this, it appears that for the primary law he also holds that even with a recognizable fetus it is like something that has not yet come into the world, and only because of the severity of the prohibition was he concerned for this, and therefore he required him to betroth her when she is born. According to this, if he subsequently betrothed her sister, they both require a get, for it is an uncertain betrothal for both of them. And know, that even though the commentators of the Rambam and several of the poskim understood from his words that he holds that a recognizable fetus is not something that has not yet come into the world and she is fully betrothed, this is because they did not have before them his words in the Commentary on the Mishnah, for there he explained explicitly that it is a stringency in betrothal, and by the letter of the law even with a recognizable fetus it is something that has not yet come into the world. Our teacher Ovadia wrote similarly in his commentary on the Mishnayot in the name of the Rambam, that such was the version of the Mishnah before them, see there. [And one must further examine the Maharsha there who wrote that the version is an error, yet the Rambam and the Bartenura have that version, and so wrote the Tosafot Yom Tov; and according to this, they do not have the version in the Gemara comparing it to terumah, and his words in chapter 5 of Terumot are settled by this, see there, for there it says "when they are detached," and here "when she is born" is not applicable, for detaching is in one's hand as he wrote there; and one must further examine the Kesef Mishneh and the commentators of the Shulchan Aruch, and delve into it].