Siman 51

Our sages, of blessed memory, said [Ketubot 102b]: "How much are you giving to your son? – Such and such!, How much are you giving to your daughter? – Such and such!", they stood and performed the kiddushin – they have acquired; these are the matters that are acquired through verbal agreement, for through that benefit of becoming related to one another, they fully resolve and transfer ownership to one another, see there. And even though mere words are nothing without a kinyan, this is because a person does not rely upon mere words and does not resolve in his heart to transfer ownership; however, in a place where it is clear to us that he intended with a whole heart to transfer ownership, it is a kinyan. This is similar to what is written in Choshen Mishpat siman 374 regarding one who sells a stolen field and his kinyan is nothing, and the robber returned and acquired it from the victim, the field remains in the hand of the buyer from the robber because the sages estimated his intent that his intention was to establish it in the hand of the one who bought it from him. And even though matters of the heart are not matters, nevertheless he acquires; and we explained there the reason is due to the reliance of the mind, see there. And we also explained the reason there that this benefit, that he considers him trustworthy, is significant to him like the receipt of money, and this is his kinyan as if he received money. And here too, it was established to our sages, of blessed memory, that this benefit from the in-laws is so great to them that it is as if they performed a kinyan, and they fully resolve and transfer ownership to one another, and automatically this is like a complete kinyan.

From the words of all the poskim it appears that only at the time of the kiddushin is the law so, and from the words of the Rambam in chapter 11 of Mechira it was explained that also at the time of the nissuin the law is so, see there. And he further explained there that even though one who transfers to his fellow an undefined matter does not effect a kinyan even with a kinyan, nevertheless, regarding this which is acquired through speech, he acquires even an undefined matter, see there. And in chapter 6 of Zechiyah he explained that it is necessary that the matter he is pledging be in his possession, for if not so, a person cannot transfer a thing that has not come into the world, see there; meaning, a matter acquired through speech is not superior to a complete kinyan. And that which he gave more power to an undefined matter than a kinyan is because the reason an undefined matter is not acquired according to the opinion of the Rambam is because his mind was not resolved, and in a matter acquired through speech, their minds were indeed resolved as I have written. But in a thing that has not come into the world where they do not acquire, the reason is not because of the resolution of the mind, but because it is not within the power of a person to transfer what is not in the world and in his possession. Therefore, it is simple that through speech it is certainly not superior to a kinyan [and this is the intent of the Beit Shmuel, subsection 4]. Therefore, since it was explained in Choshen Mishpat siman 60 that regarding an obligation a person can obligate himself even in a thing that has not come into the world, according to this, in a matter acquired through speech he can also obligate himself even in a thing that is not in his possession and in a thing that has not come into the world [ibid.]. And there are some of the Rishonim who disagreed with the Rambam and hold that matters acquired through speech are effective even in a thing that has not come into the world and is not in his possession [Hagahot Maimoniyot chapter 23 of Ishut, see there], but the Tur and the Shulchan Aruch ruled without qualification like the Rambam. And perhaps those who disagree hold that in a thing that has not come into the world, if he said it should be acquired when it comes into the world, he has acquired it, and therefore in matters acquired through speech it is as if he said so. But we have already explained in Choshen Mishpat siman 209 section 9 that the primary law is that even in such a case he has not acquired, see there, and see what I wrote in siman 66 section 8.

And even though we have written that by way of an obligation it is effective even regarding something that has not yet come into the world and is not in his possession, this is only when, at any rate, the matter will eventually be in his possession and then it will be in his power to fulfill it. However, when the matter will never be in his possession, such as when one promises something regarding another—like one who stipulates regarding his son that he shall do a certain thing, such as to go to a certain place, or to give a certain thing, or to follow after the bride, and similar matters that do not depend on the father but rather on another or on the son—his stipulation is nothing.

There is no difference whether the son or the daughter is a minor or an adult – in all of them the fathers become obligated through mere speech, and only this did the sages, of blessed memory, say: that this is only regarding the first marriage, where the son is a bachelor who has not yet married and the daughter is a virgin who has not yet been betrothed, for then the joy of the fathers is great, and from the abundance of their joy for his son and his daughter, and a person's mind is close to his son and his daughter, they fully resolve to transfer ownership through mere speech; but not in a second marriage. And some say that if for one of the fathers it is a first marriage and for the second it is a second marriage, such as a bachelor who married a widow or a widower who married a virgin – the one for whom it is the first, his son or daughter has acquired, and for the second, they have not acquired [Chelkat Mechokek subsection 6] unless they performed a kinyan as in all laws of monetary matters.

And so specifically a father who committed for his son or daughter, but for his son's daughter, even his son's son – it is not acquired through mere speech, and all the more so for his daughter's son or daughter's daughter; and even though a person's mind is also close to his grandchildren, nevertheless, a person's primary joy is only in his sons and daughters. And so too a mother who committed for her son or daughter – it is not acquired through mere speech, for this power is only in the hand of the father; and all the more so a brother who committed for his sister and other relatives who do not have this law, unless he committed to a poor relative to help him, for this is like tzedakah and he is obligated to fulfill it by reason of a vow, even if the gift is large. For with a small gift, even when promising to a wealthy person, there is a concern of being among those "lacking in faithfulness" if he does not fulfill it, as is written in Choshen Mishpat siman 249; however, this is not a kinyan and if he retracts, it is not in our power to compel him. But for a poor person, even if he is not his relative and even with a large gift, when he promised even not at the time of the kiddushin, we compel him to fulfill it by reason of a vow.

And since the Sages, of blessed memory, said so regarding the fathers of the betrothed, all the more so regarding the betrothed themselves. Therefore, a man and a woman who were engaged in a shidduch, and he said to her, "How much are you bringing in to me? ... such and such," and she said to him, "And how much are you giving me" or "writing for me? ... such and such," and they stood and performed kiddushin—these are the matters that are acquired through speech, and everything they promised at the time of the act they must fulfill as if through a kinyan. For even if he agreed to provide sustenance for her daughter for five years, the daughter has acquired it, as he becomes obligated through mere speech. And regarding them, there is no distinction between a first marriage and a second marriage, for their own joy is great even in a second marriage, and out of the joy they fully resolve and transfer ownership through mere speech.

There are some of our teachers who are of the opinion that matters acquired through speech only apply when he betrothed her immediately following the conditions and they did not interrupt with other matters, for this is implied by the language of the sages, "they stood and betrothed," which implies that he betrothed her out of the discussion; or even if he betrothed her after some time, provided they mentioned the conditions at the time of the kiddushin, for this is like betrothing her out of the discussion, but if he betrothed her after some time and they did not mention the conditions, or if the agreement was after the kiddushin – they are not acquired through speech. And according to what I wrote in the name of the Rambam, that it is effective even at the time of marriage, it implies that he does not hold this way, unless we press the point to say that even before the kiddushin they made the agreement and he mentioned it at the time of marriage; but it does not imply this, for indeed there are some of our teachers who disagree on this, that it is always the case that whenever they betroth, it is based on the original conditions, and that which the Gemara employs the language "and they stood" proves nothing, for the language of the Gemara is such in every place; however, the Tur and the Shulchan Aruch wrote without qualification according to the first opinion, and according to this, this law is not relevant for us, as we betroth under the chuppah and it is not the practice to mention the agreements immediately adjacent to the chuppah itself. And some say further that it is required that they condition this together, meaning that the second party says to the one committing, "How much are you giving?" and he answers him, "Such and such," but if they acted without a condition from the opposing party, but rather each one says on his own, "I am giving such and such," this is nothing more than mere words, and such is the primary ruling.

Our sages, of blessed memory, said [ibid.] that matters acquired through speech were not given to be written; that is to say, we do not say that since an ordinary kinyan is intended for writing, likewise regarding these matters acquired through speech the witnesses may write a deed for this and collect with it from encumbered properties—we do not say this, for one may not write without the command of the parties, and when it is written by their command, one collects with it from encumbered properties, but without the command, or if it was not written at all, one only collects from unencumbered properties. Therefore, if it is written in a deed, "In our presence, the witnesses, so-and-so said to so-and-so: 'How much are you giving?'" etc.—one only collects with it from unencumbered properties. However, if it is written therein, "In our presence, the witnesses, so-and-so said etc., and so-and-so and so-and-so said to us: 'Write, sign, and give into the hand of each one,'" it is like a complete deed and one collects with it from encumbered properties [the Maggid Mishneh, chapter 6 of Zekhiya]. And if they themselves wrote deeds of obligation in their own handwriting, even if witnesses verified their signatures, if they did not verify the matter itself, it is like an oral loan and one does not collect with it from encumbered properties, and they are believed to claim "we have paid," as is written in Choshen Mishpat siman 69 [it appears to me].

And there are some of our teachers who explained that they were not given to be written—that even if they are commanded to write, one does not collect with this from encumbered properties, for the sages did not strengthen the power of matters acquired by speech except for unencumbered properties and not for encumbered properties, but for unencumbered properties writing is not required at all [see the Rosh there section 3 and in the Shita Mekubetzet], and so it appears to be the opinion of the Rambam in chapter 6 of Zekhiya and the Shulchan Aruch in this siman [and see there in the Hassagot and in the Maggid Mishneh, and one must look further into the Chelkat Mechokek subsection 5, and what was written in the previous section in the name of the Maggid Mishneh we wrote according to the opinion of the Chelkat Mechokek but it does not appear so, and see the Bach].

The difference between the stipulation in this siman and the stipulation in the previous siman is that there the son does not acquire immediately, and likewise the daughter, for the stipulation there is only against the second party, that if he does not fulfill it he shall pay a fine. Therefore, if he was under duress or if he died, the heirs are exempt from paying, as I wrote there in section 30; see there. But the stipulation in this siman, when they are acquired through oral agreement, it is acquired immediately for the son or for the daughter, and if he dies, the heirs are obligated to pay and no duress exempts them. Likewise, when it was not acquired through oral agreement but the father stipulated and it was acquired from him through a complete kinyan that he obligates himself to give to his son or to his daughter such and such, they acquire immediately and it is like any other debt. And even if the father of the bride died before the marriage, we extract it from the heirs, even from encumbered properties, like any other debt. And why in the previous siman is it not so? Because there the kinyan is only against the second party to be obligated in a fine, as I wrote there, but here the kinyan is for the son or for the daughter. And kinyan sudar is only effective for movable property and lands and not for money, for currency is not acquired through exchange, and one requires kinyan agav karkas. And also, he should not accept through kinyan that he "will give" to his son or to his daughter, for a kinyan of "I will give" is not effective, as I wrote in Choshen Mishpat siman 245, but rather a kinyan of obligation upon himself to give [Beit Shmuel, subsection 8].

There is a further practical difference between this siman and the previous siman, for in the previous siman, when the father dies, the heirs are not required to give to them because of the verbal agreement, as the agreement is void; rather, the son or the daughter take by power of their inheritance like the rest of the heirs. However, in this siman, or when they acquired from the father with a complete kinyan where he obligates himself as I have written, they do not deduct from their portion of the inheritance, for they already merited it during the father's lifetime, and they are like other gifts that a father gives to his son or daughter during his lifetime. And we have already written that a kinyan of "I will give" is not effective, and therefore if he said "I will give such and such" and performed a kinyan, and similarly the groom who agreed to make her a ketubah of such and such and at the time of the marriage they retract—one cannot compel them, for a kinyan of "I will give" is not effective. And even though there are those who hold that a kinyan of "I will give" is effective, nevertheless, at any rate, it is a legal doubt and one does not have the power to extract from the one in possession, and they are only obligated to fulfill it on account of the penalty they agreed upon at the time of the tena'im as is customary and as I wrote in the previous siman. And our teacher, the Rema, wrote that therefore they were accustomed to make new tena'im before the marriage. Thus far his words. Meaning, that then they obligate themselves with a complete obligation and not because of the penalty, but among us they are not accustomed to do so [see Chelkat Mechokek who elaborated in subsection 10, and we have already explained in the previous siman section 38, and what was written in Chelkat Mechokek in subsection 12 requires further study, and regardless, the kinyan sudar that is customary among us is nothing regarding money, for currency is not acquired through chalifin, see there and reflect].

An incident occurred involving a father who arranged a match for his son, and afterwards he demanded from the other side that they pay the dowry they had promised. The other side replied to him, "You are not my legal adversary," for the money belongs to the groom. And when the groom demanded it, he replied to him, "Behold, you were not present at the time of the conditions and you only knew of it through your father; therefore, you have nothing to demand from me," and he evades the dowry and the penalty. Rabbenu Tam replied that the groom should write a power of attorney for his father, and then he is obligated to pay the father, for he is the groom's agent, and the other side does not have the ability to reject him [Beit Shmuel in the name of the Responsa of the Maharam].

Everything that is stipulated in the tanaim must be fulfilled before the wedding, even if they did not specify when they would give the nedunya, and the father of the bride cannot say to the groom, "marry her and afterwards I will give," for it is a strong assessment that the intent of the obligation is for the fulfillment of the marriage. However, the groom does not have the power to say that the nedunya should be given into his hand, for the father can say, "I will deposit them in the hand of a trustee until I see your conduct with my daughter." And so is the simple custom, to deposit the nedunya until some time after the wedding, and anyone who acts without specification acts according to the custom, unless he specified explicitly in the tanaim or before witnesses that they should give it into his hand before the chuppah. And if the father of the daughter sees after the wedding that she does not have a pleasant life with him, that his son-in-law routinely quarrels with her, he does not need to give it to him even if he swore to give it to him, as is written in Choshen Mishpat siman 73, see there. And so too when the money is in the hand of a trustee, they shall not deliver the money into his hand because there is a concern that he will initiate more quarrels when the money is in his hand. However, if the father seeks pretexts in order not to give his son-in-law the money, the beit din extracts the money and delivers it to his son-in-law, and these matters depend on the assessment of the beit din. And the groom must pay the fee for the writing of the tanaim if only one document was written, but if two documents were written, each one pays for his own, and so is the simple custom among us, that both sides provide the expenses of the writing and the like.