Siman 45

Our sages, of blessed memory, said [50b] that there is a concern of kiddushin regarding sivlonot that the groom sent to the bride, and there are detailed laws in this matter as will be explained. However, regarding the primary definition of sivlonot, our teachers, the Rishonim, disagreed; for Rashi, of blessed memory, explained that regarding the sivlonot themselves there is a concern lest he sent them for the sake of kiddushin, and the Rif and the Rambam explain that regarding the sending of sivlonot we concern ourselves lest he betrothed her previously, because the sending of the sivlonot is a sign of the prior kiddushin, and there is a practical legal difference between these views.

How so? For according to the explanation of Rashi, there is no concern regarding savlonot unless he sent them with witnesses and there were also witnesses at the time of the giving into her hand; for then, even if he did not state that he is giving for the sake of kiddushin, since it deals with a case where they arranged a shidduch between them, as will be explained, this is like when they are speaking of the matters of kiddushin, where even if he gave in silence it is kiddushin, as is written in siman 27, section 16, for this opinion holds that since there was a shidduch, it is as if they spoke of the matters of kiddushin, see there. And some are stringent if he sent with witnesses even though there were no witnesses at the time of giving, and the reason is that just as we established regarding kiddushin of bi'ah that the witnesses of seclusion are themselves the witnesses of bi'ah, so too we say the witnesses of the mission are themselves the witnesses of the giving, and at the time of the taking effect of the kiddushin we do not require witnesses. And although it was explained in siman 42 that only regarding bi'ah do we say this, but regarding money we require that the witnesses see the giving into the hand, it must be said that here, since there is a presumption that an agent performs his mission, it is similar to witnesses of seclusion in bi'ah [Beit Shmuel, subsection 12]. And there is one who is even more stringent to say that even without witnesses of the mission we are concerned for kiddushin if it was only clarified that he sent the savlonot in a place where there is a simple custom to send rings and the like after the shidduch, for this is like "we are witnesses" that he sent to her for the sake of kiddushin, and on the condition that the majority of them betroth with such gifts [Bach], and it is an extreme stringency, and as long as there were no witnesses at the time of the sending of the savlonot – there is no concern [Avnei Miluim, subsection 8]. But when he sent the savlonot via one person – there is no concern at all according to this view, and even though we are stringent regarding kiddushin with one witness, nevertheless there is no concern for this stringency regarding savlonot, for it is a mere concern [Beit Shmuel, subsection 1].

But according to the method of the Rambam, we are concerned even if he did not send with witnesses, since the concern is that perhaps he betrothed her previously. And only when they admit that he sent to her are we concerned for kiddushin; and even though if so, since they say he did not betroth her previously they should be believed by the logic of "the mouth that prohibited is the mouth that permitted," however, this is like a migo in the place of witnesses, for since we are dealing with a place where the custom is to betroth prior to the sivlonot, as will be explained—they are not believed to claim against the custom even when they have a migo, for we do not say migo in the place of a custom, as written in Choshen Mishpat siman 82 in the rules of migo. And according to this method, if he says that he betrothed her with the sivlonot, there is no longer a concern that he betrothed her previously, for he is claiming his own benefit that he betrothed her, and since he claims that he betrothed her with the sivlonot, it is like a clarification that previously he did not betroth her. And as for the concern of the sivlonot themselves for kiddushin, we are not concerned according to this method, for this method does not hold of this concern at all, for the reason that since he did not specify that they are for kiddushin, and silence during a shidduch is not comparable to being occupied with that same matter, as written in siman 27 section 16.

And conversely, there is a practical difference when there are witnesses that he did not betroth her previously—according to the approach of the Rambam, this concern is removed, but according to Rashi it is of no avail, since the concern is that perhaps he betrothed her now with the sivlonot. And regarding the matter of shidduchin it is the opposite, for according to Rashi, without shidduchin there is no concern of sivlonot, and according to the Rambam it appears that even where there were no shidduchin there is this concern. However, from the words of our teacher, the Rema, it is explained that even according to the Rambam we do not concern ourselves where there were no shidduchin, for if not so, anyone who gives a gift to an unmarried woman in the presence of witnesses, we should concern ourselves with kiddushin. But from several poskim it is explained that according to this approach, even without shidduchin one must concern oneself with kiddushin [Beit Shmuel, subsection 7], for this concern only applies to that which it is the way of a groom to send to a bride, but regarding other things there is no such concern, and it is not the way to give an ordinary unmarried woman as a gift things that a groom sends to his bride; and if he truly gave her such things in the presence of witnesses, certainly we concern ourselves with kiddushin [Avnei Miluim, subsection 5]. And according to this, a distinction would be renewed between this approach and the approach of Rashi, for according to Rashi, of blessed memory, certainly with any object that he sent her, we concern ourselves that perhaps he betrothed her with it [it appears to me].

There is a further practical difference, for when one sent sivlonot to a ketannah after the death of her father—according to the Rambam there is a concern that perhaps her father received the kiddushin, and according to Rashi there is no concern and mi'un is sufficient, and it is possible that even mi'un is not required regarding the concern of sivlonot. Similarly, when the woman sent him sivlonot, according to Rashi there is no concern and according to the Rambam there is a concern, and similarly if the groom himself did not send but his father sent—according to Rashi there is no concern and according to the Rambam there is a concern, and similarly if he sent the sivlonot on Shabbat or Yom Tov when it is forbidden to betroth a woman, there is no concern according to Rashi, and according to the Rambam there is a concern. And similarly there is a practical difference, for according to Rashi there is no concern except when he sent them without specification, for then there is a concern that perhaps his intent was for kiddushin, but if he explicitly specified that he is sending for the sake of sivlonot there is no concern, while according to the Rambam the concern exists that perhaps he betrothed her previously. And some say that even according to Rashi there is no concern when he sent without specification unless he sent with language of affection, for then we concern ourselves with kiddushin, and according to this, if he sent explicitly as a gift even if he used language of affection—there is no concern for kiddushin, and when he sent explicitly for the sake of sivlonot and certainly with the language of a gift there is no concern; even if he said that the groom is sending to the bride we do not concern ourselves that the terms groom and bride apply only to kiddushin, for in the language of people from the time of the shidduchin they are called groom and bride. And know, that according to Rashi anywhere that there is a concern for kiddushin, even if both of them said that they did not intend for kiddushin and even if they swore upon this—we do not pay heed to them and she requires a get, just as according to the Rambam if they say that he did not betroth her previously as has been written.

And regarding that which has been explained, that when he sent on Shabbat or Yom Tov we do not concern ourselves with kiddushin, some say that in any place where we would have had to concern ourselves that he committed a transgression if his intention was to betroth through the sending of the sivlonot—such as if there is a prohibition in the city not to betroth with fewer than ten and the like—we do not concern ourselves that perhaps he sent them for the sake of kiddushin; however, according to the Rambam, one must be concerned. And there is one who says that when there is a prohibition in the city not to betroth with fewer than ten, even according to the Rambam there is no concern that perhaps he betrothed her previously, for if it were so that he betrothed her before ten, the matter would be publicized to the masses, and to concern ourselves that perhaps he betrothed her with fewer than ten, there is no concern, as he wrote. And likewise regarding that which has been explained, that if the father of the groom sent the sivlonot there is no concern for kiddushin, even if the messenger said "the groom sent this to you"—this is nothing, for what does his statement avail? However, if the groom stood by at the time his father sent the sivlonot and the groom remained silent, or if the father said "take this to the bride in the name of the groom," he certainly transferred ownership of the sivlonot to him. Therefore, according to what was written in siman 35, that if the father proposed before the son and the son remained silent it is a case of doubtful kiddushin, if so, if the messenger delivered the sivlonot to the bride in the name of the groom, and in places where the majority betroth and afterwards give sivlonot—some say that one must be concerned for kiddushin, and even if there is a minority who betroth and then provide sivlonot, it is possible that one must be concerned.

There is a further distinction: for Rashi, there is no concern of kiddushin unless the bride herself received the sivlonot, but if her father or mother or her brothers or other household members received them, the concern is removed. However, for the Rambam, there is no distinction, since the concern is regarding a past time. And there is one who says that even according to Rashi there is a concern lest she appointed an agent for the receipt of the sivlonot for the sake of kiddushin, however, according to this, if the groom said "give the sivlonot to the bride" and he delivered them to another—in any event it would not be kiddushin, for even if he intended for kiddushin, the agent deviated from the mind of his sender; and all the more so if the groom said "give the sivlonot to one of the household members on behalf of the bride" that there is no concern, and you only find it when he delivered them without specification. And know, that even according to Rashi, of blessed memory, there is no distinction between whether the groom sent her the sivlonot via an agent or whether he gave them to her himself, for in a place where we are concerned, we are concerned even when he sent via an agent, and in a place where we are not concerned, as will be explained, we are not concerned even when he gave them himself into her hand; not like the one who is stringent to say that when he gave them himself we are always concerned even in a place where there is no concern for sivlonot according to the law, and all the more so according to the approach of the Rambam there is no distinction in this.

In which place do we concern ourselves with sivlonot? The Rambam wrote in chapter 9: A place where they are accustomed to send sivlonot to a betrothed woman after she has been betrothed, and witnesses came who saw sivlonot that were brought to her – we concern ourselves with her lest she was betrothed, and she requires a get due to doubt, even though the majority of the people of the city do not send sivlonot except before the betrothal. And a place where they all are accustomed to send sivlonot first and afterwards they betroth, and they saw sivlonot – we do not concern ourselves with her. Thus far his words. It is explained from his words that regarding that which he wrote "a place where they are accustomed," he means to say even if the minority are accustomed so, we concern ourselves with the minority in the stringency of a married woman, just as they applied several stringencies in the case of "waters that have no end" and the like [the Rosh]. Furthermore, this majority is not similar to all majorities where the nature of the matter is such; but here it is nothing but a custom, and sometimes a person conducts himself like the custom of the few. Therefore, in a matter of the prohibition of a married woman, they were stringent to be concerned [the Ramban]. And specifically when the minority does so regularly; but where even the minority does not do so consistently, and only occasionally do they betroth and afterwards send sivlonot – it is not even called a minority [the Rashba]. For if the entire city always does the opposite, to send sivlonot and afterwards betroth, even though sometimes they send the sivlonot after the betrothal by chance – we do not concern ourselves with sivlonot.

And know, that from the wording of the Rambam it is explained that specifically when witnesses came who saw the sivlonot, but according to their own statement they are believed to say that he did not betroth beforehand, not like what was written in section 3. However, our teacher, the Rema, wrote this on the wording of the Rambam which is the wording of the Mechaber, and it appears that he holds that he did not specifically write witnesses, and truth be told the wording of the Rema can be interpreted that the stringency is that he did not send them with witnesses but nevertheless regarding the sending itself one needs witnesses, but the great Acharonim wrote explicitly as I wrote in section 3, and it must be said that they hold that the Rambam only intended to exclude if they deny that he sent sivlonot at all, for then one needs witnesses, and even one witness is not effective since one witness in the face of denial is nothing, but when they admit, one should be stringent [it appears to me].

Therefore, some say that if there are no witnesses here and there is only their own admission—they are not believed that there were no kiddushin beforehand except in a place where the majority perform kiddushin and then send sivlonot, but for the minority we are not concerned in such a case [Taz]. Reason dictates this, for they have a migo; and specifically when the majority of them perform kiddushin and then send sivlonot are they not believed with a migo against the custom of the majority, but against the minority it is obvious that they are believed with a migo. However, from the wording of our teacher, the Rema, it does not appear so, unless we say as I have written, that his intention is that one does not need to send with witnesses, but witnesses to the sending are required. Nevertheless, regarding the halacha, there are those who are stringent even in such a case if, when they initially said that he sent the sivlonot, they did not say that there were no kiddushin beforehand; and therefore, even if they said so afterwards—they are not believed with a migo because it is a migo retroactively [Beit Shmuel, subsection 3].

And know, that from the wording of the Tur it is explained that according to the approach of Rashi we are only stringent regarding sivlonot in a place where the majority betroth and afterwards send sivlonot, for then there is a concern that he sent them for betrothal and not for sivlonot according to the custom; however, we do not concern ourselves with a minority. Reason dictates this, for behold, it is truly an extreme stringency when they did not mention betrothal at all to concern ourselves that he is betrothing her with this, and it is sufficient to be stringent regarding a majority and not regarding a minority. And such is the approach of Rashi in the Gemara, see there. Nevertheless, there are those who are stringent even according to the approach of Rashi even regarding a minority, and therefore one should be stringent in the law even in such a case [ibid. subsection 4], and so it is implied from the wording of our teachers, the authors of the Shulchan Aruch, see there.

Our teacher, the Rema, wrote: There are those who say that regarding all sivlonot that he sent immediately after the shidduchin, a day or two later, there is no concern for them at all, and even if he sent to her afterwards as well; for since he sent to her initially, we see that he sends sivlonot and afterwards performs kiddushin, and we do not concern ourselves with his sivlonot. Thus far his words. The explanation of his words is that according to the Rambam, certainly there is no concern immediately after the shidduchin that perhaps he betrothed her beforehand, for if so, the matter would have become public since it is a short time since they made the shidduchin. And even though it is possible that he betrothed her in private, here there is no concern for this, for the shidduchin were in public and why would he betroth her in private? And since regarding these sivlonot there is no concern, automatically there is no concern for all his sivlonot, for we see that this man is of those who send sivlonot and then perform kiddushin. And there are some of the great authorities who said that this is only effective if the majority send sivlonot and then perform kiddushin and only a minority perform kiddushin and then send sivlonot—this reasoning is effective against the minority. But if the majority perform kiddushin and then send sivlonot, this is not effective. And so too according to the method of Rashi, that regarding the sivlonot themselves we concern ourselves that he betrothed her with them, there is no proof from the fact that it is a short time after the shidduchin. However, if the groom and the bride were in the same city and he sent them via a messenger, there is proof that they are not for kiddushin, for if it were so that he intended for kiddushin, why did he not give them to her himself? And that which we concern ourselves with in this entire siman regarding sivlonot sent via a messenger, that is when they are not in the same city. However, according to this, for the method of Rashi, one should not distinguish between whether the sivlonot were immediately after the shidduchin or after some time.

But from the words of our teacher, the Rema, it appears from the arrangement of his words that according to all opinions and in all places, one need not be concerned in such a case. His reason is because it is not the custom to betroth immediately after the shiddukhin. Since the primary concern regarding sevlonot, even according to the opinion of Rashi, is a remote concern—that we should be concerned for kiddushin when he did not mention the language of kiddushin at all—and also according to the Rambam it is a great stringency to remove this woman from her status of being unmarried based on something for which we have no proof, and we only rule stringently in this due to the severity of the prohibition of a married woman; therefore, since immediately after the shiddukhin it is not the custom to betroth and it has been clarified that it is his custom to send sevlonot before the kiddushin, one need no longer be concerned for his sevlonot, as this is like it has been clarified that this man is of those who send sevlonot and afterwards betroth. Nevertheless, since the Acharonim were stringent in this, it is difficult to be lenient in practice [see Chelkat Mechokek subsection 6 and Beit Shmuel subsection 9, and their words are not compelling to one who examines the Maharik, and the Rema did not derive this literally from there but only relied on the great authority and proof for his reasoning from there as is his way, and delve into this].

He further wrote: That every concern regarding sivlonot is only to require her a get ab initio, but if she has already married, she does not go out and we follow the doubt to be lenient. Thus far his words. And regarding this as well, the great authorities wrote that this is only in a place where the majority send sivlonot and then perform kiddushin, for against the minority who perform kiddushin and then send sivlonot we follow the leniency, but not against the majority. However, there are those who are lenient in a case of doubt even against a majority, for a matter that depends on custom is not an absolute majority and perhaps he is from the minority, and since this is only a mere concern and she has a presumption of being unmarried, it is impossible for us to establish her as a married woman based on a mere concern when they themselves say that he did not perform kiddushin beforehand and that they did not intend the sivlonot for the sake of kiddushin. And nevertheless, in practice one must deliberate on the matter and it is difficult to be lenient except according to the vision of the great authorities of the land according to the matter; however, in our lands where everyone sends sivlonot and then performs kiddushin, as will be explained, it follows that certainly one should be lenient in a doubt regarding sivlonot, unless the groom says that he intended them for kiddushin.

Regarding the concern of sivlonot, we must be stringent according to the stringencies of both systems—that of Rashi and that of the Rambam. And although most of the early authorities wrote according to the Rambam, nevertheless one should be stringent also according to the system of Rashi, of blessed memory. It has already been explained in section 6 that in a place where there is a prohibition if he intended for the sivlonot to be for the sake of kiddushin, we are not concerned. Therefore, if this man who sent the sivlonot married a woman afterward, we are no longer concerned about the sivlonot; for if it were so that he had betrothed her, he would not have married another woman to transgress the enactment of Rabbeinu Gershom. And likewise, we are only stringent regarding sivlonot if it was clarified that he sent sivlonot, but if only a rumor emerged that he sent sivlonot, we are not concerned about kiddushin. And even though regarding a rumor of kiddushin we are concerned, as is written in siman 46, nevertheless, since the rumor of kiddushin for which we are stringent is only a mere stringency and also the concern of sivlonot is only a stringency, we do not apply two stringencies. And specifically when they deny the rumor and say that he did not send them at all; but when they admit that he sent them, but that it was in a place where the majority send sivlonot and afterward betroth, where they are believed with a mingo as is written in section 10, since there is a rumor, the mingo is removed, for we do not say a mingo to contradict a rumor, as is written in Choshen Mishpat siman 150, see there.

Our teacher, the Beit Yosef, wrote: Nowadays, the custom in the entire kingdom of the Land of Israel, Egypt, and Turkey is not to be concerned for sevlonot, except in Constantinople where they are concerned for them. Thus far his words. And the reason is because in his days, in all these places, everyone would send sevlonot and afterwards perform kiddushin. According to this, also in all our provinces, where the simple custom in all our provinces is that they bind themselves in shidduchim and send gifts, and afterwards over a period of time they perform the kiddushin and the chuppah together, it seems simple that there is no concern for sevlonot. And even if he claims that he intended for kiddushin, it would seem that one should not be concerned, for one who comes to claim against the custom, the burden of proof is upon him, and all the more so since in addition to this she also has the chazakah of being an unmarried woman.

But from the words of our teacher, the Rema, it does not appear so, for he wrote: And there are those who say that one should be stringent even in a place where everyone sends sivalonot and afterwards betroths, unless there is another side for leniency alongside this. And it appears to me that if the groom said that he only sent for the sake of sivalonot—according to everyone there is no concern in such a case, and such are the daily occurrences that sometimes they retract the shidduchim and the sivalonot are returned, and it is not the custom to require her a get since it is in places in this time where everyone sends sivalonot and afterwards betroths and the groom does not say that he sent for the sake of kiddushin. Thus far his words. It is explicitly clear that if the groom claims that he sent for the sake of kiddushin, even though the bride denies it, we are concerned to require her a get, and in truth several of the great authorities disagree on this and hold as I have written, that since everyone sends sivalonot and afterwards betroths, we do not pay heed to his words [Beit Shmuel subsection 20 in the name of the Maharam and Mas'at Binyamin], and all the more so in our countries where they betroth under the chuppah, for even one in a thousand does not betroth before the marriage—it is obvious that there is no concern for sivalonot [ibid. subsection 21].

And it appears to me that in our countries, even our teacher, the Rema, would admit that there is no concern even when the groom claims [they were for kiddushin], for the reason he is stringent—even though everyone sends gifts and afterwards performs kiddushin—is explained in the source of the law as being because perhaps there is a minority who perform kiddushin and afterwards send gifts [Chelkat Mechokek]. And this is only relevant in countries where they perform kiddushin a long time before the chuppah, but in our countries where everyone performs kiddushin under the chuppah, this entire concern is removed. And that which he wrote, that there are daily occurrences where they retract from the shidduchin, this also refers to all places, even when they perform kiddushin before the chuppah, and in this there is a concern if the groom says that he intended them for kiddushin; but in our countries, he is not believed without proof. And also from the Levush it is explicitly implied that what he concluded—"and the groom does not say that he sent them for the sake of kiddushin"—his intention is not [to imply a case] where the groom says so, but rather to say that no groom says so, and consequently even if there is someone who says so, he is not believed; however, from his earlier words it does not appear so, therefore it appears as I have written.

Just as one is concerned for sivlonot, so too one is concerned for a ketubah; for if he wrote a ketubah for her, if the ketubah reached her hand, it is like certain kiddushin, as it is obvious that one does not deliver the ketubah to the woman before the kiddushin. And even if it has not yet reached her hand, and even if the majority of the people of the city write the ketubah and afterwards perform kiddushin, if there are some among whom it is a fixed custom that they perform kiddushin and afterwards write the ketubah – one is concerned that perhaps he is from the minority and she has already been betrothed. And even though one could attribute the writing of the ketubah to another matter, such as that there is no scribe commonly available in the city and it could be said that a scribe happened to be available to him to write and therefore he wrote, and not because he betrothed her, nevertheless, due to the severity of the prohibition of a married woman, one does not rely on this unless it is clarified by witnesses that he did not betroth her, or that the ketubah becomes known only by his own word and he says that he did not betroth her, for he is believed with a migo against the minority, as was written regarding sivlonot.

And if it is the way of all the people of the city that they write the ketubah before the kiddushin, as is the simple custom among us—we are not concerned for kiddushin. And it appears to me that even our teacher, the Rema, who was stringent regarding sivlonot even in a place where everyone sends sivlonot and afterwards performs kiddushin, would admit regarding a ketubah if everyone writes it before the kiddushin. For there he was stringent lest we are not experts in the custom, as perhaps there are those who perform kiddushin first, as he wrote; but regarding a ketubah, the simple custom is to write it before the kiddushin in all of our provinces, and also regarding sivlonot the law is so in our province, as I wrote in section 17.

The concern regarding a ketubah exists even if he did not perform shiddukhin when it is known that it was written with the knowledge of both of them, for since they agreed to write a ketubah, it is obvious that there are words of kiddushin between them. If it was not written with the knowledge of both of them, we do not concern ourselves with the ketubah unless he performed shiddukhin [Beit Shmuel]. And know, that in a place where we do not concern ourselves—we do not concern ourselves even with both things together, such as if he sent her sivlonot and also wrote her a ketubah; if it is a place where everyone sends sivlonot and afterwards performs kiddushin, and everyone writes and afterwards performs kiddushin—we do not concern ourselves [ibid.].

It is a simple matter that if there is a certain custom in the city – we follow the custom, and if there was a custom and it was nullified – we follow the current practice. And if there was never a fixed custom in the city, or if it is a new city where people gathered from many places and other neighboring cities are divided in their custom – it is judged as half and half and we are concerned for kiddushin. And if it is known that everyone came from one province where there is a fixed custom – we follow that custom. And if one came from a place where they are not concerned for sivlonot to a place where they are concerned – we follow the place from which he came, unless he has been here thirty days, for then his law is like the people of this city [ibid.]. And even though we hold that we impose upon him the stringencies of the place to which he went, as written in Orach Chaim siman 496, that is regarding a stringency of a prohibition; but in this case, where the concern is perhaps he betrothed her, since he came from his place where they are not concerned for sivlonot, it follows that there is no concern of kiddushin in the sivlonot. Therefore, even if he does not intend to return, we are not concerned by it; and only when he has settled here thirty days, we presume he became aware of their custom and it follows that he also acts according to their custom, and there is a concern of kiddushin [it appears to me].