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Introduction to Kesuba: Difference between revisions
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==Making the Kinyan== | ==Making the Kinyan== | ||
# The minhag is to make a kinyan chalipin for the obligations in a kesubah.<ref>Chomat Mishpat v. 1 p. 77</ref> This is done by having one of the witnesses or someone else who is acting on behalf of the kallah, such as the mesader kiddushin, give a kli (utensil) that is fit to be used to the chatan who then raises it up. This act causes the chatan to become obligated to fulfill his obligations as outlined in the kesuba.<ref>Chomat Mishpat v. 1 p. 77</ref> | # The minhag is to make a kinyan chalipin for the obligations in a kesubah.<ref>Chomat Mishpat v. 1 p. 77</ref> This is done by having one of the witnesses<ref>Chomat Mishpat v. 1 p. 77 writes that the minhag is to have one of the witnesses make the kinyan.</ref> or someone else who is acting on behalf of the kallah, such as the mesader kiddushin, give a kli (utensil) that is fit to be used to the chatan who then raises it up. This act causes the chatan to become obligated to fulfill his obligations as outlined in the kesuba.<ref>Chomat Mishpat v. 1 p. 77</ref> | ||
# The minhag is to use a handkerchief for kinyan chalipin, but really it is perfectly acceptable to use any utensil. If a cloth or handkerchief is being used, it must be at least 3 by 3 etzbaot. It is not necessary for it to be 3 x 3 tefachim, irrelevant of the material it is made out of.<ref>Shulchan Aruch C.M. 195:4. Rav Yitzchak Elchanan Spector (Bear Yitzchak CM 5:2) raises an issue that perhaps this measure of 3x3 etzbaot is only sufficient if the garment is made out of wool or linen, but other materials must be 3x3 tefachim since those are the measurements that are found regarding tumah for the cloth to be considered a kli. However, Rav Yitzchak Elchanan concludes that it is a kli for the purposes of chalipin even though it is not a kli for the purposes of tumah, as long as it is of requisite size of 3x3 etzbaot. Pitchei Teshuva 195:3 quotes this. Aruch Hashulchan 195:5 and Pitchei Choshen (Kinyanim 7:4 fnt. 13) agree. The Radziner ([https://www.hebrewbooks.org/pdfpager.aspx?req=20463&st=&pgnum=507 Sidrei Taharot Kelim 248b]) has another approach to this question but with the same practical conclusion. He argues that the rules of chalipin and tumah are equated, but nonetheless 3x3 etzbaot suffices since a person can make a garment accept tumah once he actively uses it. Since doing a chalipin is a function of the garment, using it for the symbol transaction it thereby demonstrates that it indeed is a kli. Mishpat Hakinyan (Rav Ovadia Yosef Toledano 2:7 p. 192) concludes that 3x3 etzbaot is sufficient for all materials.</ref> For this reason a standard handkerchief is acceptable but a ''gartel'' is not acceptable for chalipin since it is too thin.<ref>Chomat Mishpat v. 1 p. 77. Interestingly, Pitchei Choshen (Kinyanim 7:4 fnt. 13) would allow using a gartel since he writes that a whole garment is automatically considered a kli even if it isn't the requisite measure of 3x3 etzbaot. He even writes that a certain gadol was careful not to use a garment that was thinner than 3 etzbaot, but he doesn't understand why there is any reason to be stringent. However, Morasha v. 3 p. 256 notes that this is a great nuance of the Pitchei Choshen, and Chomat Mishpat disagrees with Pitchei Choshen and disqualifies a gartel for chalipin. </ref> Some poskim allow using a ''gartel'' for a kinyan even though it is thinner than 3x3 etzbaot.<ref>Pitchei Choshen (Kinyanim 7:4 fnt. 13) writes that it is obvious that a whole garment is considered significant and counts as a kli, even though it is thinner than 3 tefachim. He notes that even though he saw one gadol disqualify such a garment, he doesn't understand why this is the case. Mishpat Hakinyan (2:7 v. 2 p. 192) agrees with Pitchei Choshen. He quotes the Divrei Yatziv CM 55 that the minhag is to use a gartel for the kinyan chalipin. He also quotes the Shevet Halevi 9:307 who technically agrees that a gartel is acceptable for chalipin but not use it in practice because he wants to demonstrate that this transaction is important and not a game. </ref> | # The minhag is to use a handkerchief for kinyan chalipin, but really it is perfectly acceptable to use any utensil. If a cloth or handkerchief is being used, it must be at least 3 by 3 etzbaot. It is not necessary for it to be 3 x 3 tefachim, irrelevant of the material it is made out of.<ref>Shulchan Aruch C.M. 195:4. Rav Yitzchak Elchanan Spector (Bear Yitzchak CM 5:2) raises an issue that perhaps this measure of 3x3 etzbaot is only sufficient if the garment is made out of wool or linen, but other materials must be 3x3 tefachim since those are the measurements that are found regarding tumah for the cloth to be considered a kli. However, Rav Yitzchak Elchanan concludes that it is a kli for the purposes of chalipin even though it is not a kli for the purposes of tumah, as long as it is of requisite size of 3x3 etzbaot. Pitchei Teshuva 195:3 quotes this. Aruch Hashulchan 195:5 and Pitchei Choshen (Kinyanim 7:4 fnt. 13) agree. The Radziner ([https://www.hebrewbooks.org/pdfpager.aspx?req=20463&st=&pgnum=507 Sidrei Taharot Kelim 248b]) has another approach to this question but with the same practical conclusion. He argues that the rules of chalipin and tumah are equated, but nonetheless 3x3 etzbaot suffices since a person can make a garment accept tumah once he actively uses it. Since doing a chalipin is a function of the garment, using it for the symbol transaction it thereby demonstrates that it indeed is a kli. Mishpat Hakinyan (Rav Ovadia Yosef Toledano 2:7 p. 192) concludes that 3x3 etzbaot is sufficient for all materials.</ref> For this reason a standard handkerchief is acceptable but a ''gartel'' is not acceptable for chalipin since it is too thin.<ref>Chomat Mishpat v. 1 p. 77. Interestingly, Pitchei Choshen (Kinyanim 7:4 fnt. 13) would allow using a gartel since he writes that a whole garment is automatically considered a kli even if it isn't the requisite measure of 3x3 etzbaot. He even writes that a certain gadol was careful not to use a garment that was thinner than 3 etzbaot, but he doesn't understand why there is any reason to be stringent. However, Morasha v. 3 p. 256 notes that this is a great nuance of the Pitchei Choshen, and Chomat Mishpat disagrees with Pitchei Choshen and disqualifies a gartel for chalipin. </ref> Some poskim allow using a ''gartel'' for a kinyan even though it is thinner than 3x3 etzbaot.<ref>Pitchei Choshen (Kinyanim 7:4 fnt. 13) writes that it is obvious that a whole garment is considered significant and counts as a kli, even though it is thinner than 3 tefachim. He notes that even though he saw one gadol disqualify such a garment, he doesn't understand why this is the case. Mishpat Hakinyan (2:7 v. 2 p. 192) agrees with Pitchei Choshen. He quotes the Divrei Yatziv CM 55 that the minhag is to use a gartel for the kinyan chalipin. He also quotes the Shevet Halevi 9:307 who technically agrees that a gartel is acceptable for chalipin but not use it in practice because he wants to demonstrate that this transaction is important and not a game. </ref> | ||
# The chatan should take grasp of a significant part of the kli. Some say that it is sufficient if he takes hold of part of the kli such that if he wanted he could pull the rest of it to him, while others argue that he must hold a significant part of the kli.<ref>Pitchei Choshen (Kinyanim 7:8)</ref> | # The chatan should take grasp of a significant part of the kli. Some say that it is sufficient if he takes hold of part of the kli such that if he wanted he could pull the rest of it to him, while others argue that he must hold a significant part of the kli.<ref>Pitchei Choshen (Kinyanim 7:8)</ref> | ||
# The kinyan does not have to be done in the presence of the kallah | # The kinyan does not have to be done in the presence of the kallah<ref>Shulchan Aruch C.M. 195:3, Pitchei Choshen (Kinyanim 7:9)</ref> and does not need to be done with the kallah.<ref>Chomat Mishpat p. 78. This is different from the tenayim which requiring kinyanim to be done both with the chatan as well as with the kallah, or their representatives. The reason is that in tenayim both sides have mutual obligations, as opposed to a ketubah, which is really an obligation upon the chatan. </ref> | ||
# The kli used for the chalipin does not have to belong to the one doing the kinyan on behalf of the kallah. However, he may not use the kli for chalipin without permission from the owner of the kli. Similarly, it is fine if the mesader kiddushin borrows a kli from someone in order to do the kinyan.<ref>Rama C.M. 195:4, Pitchei Choshen (Kinyanim 7:9)</ref> | # The kinyan must be done in the presence of the edim who sign the kesubah.<ref>Chomat Mishpat p. 78</ref> | ||
# Once the kli used for chalipin is transferred the transaction is finished | # The kli used for the chalipin does not have to belong to the one doing the kinyan on behalf of the kallah. However, he may not use the kli for chalipin without permission from the owner of the kli. Similarly, it is fine if the mesader kiddushin borrows a kli from someone in order to do the kinyan.<ref>Rama C.M. 195:4, Pitchei Choshen (Kinyanim 7:9)</ref> It is best not for the one doing the kinyan chalipin to own the kli.<ref>Chomat Mishpat p. 78 writes that it is advisable not to get involved with the dispute surrounding a borrowed kli for the chalipin.</ref> | ||
# Once the kli used for chalipin is transferred the transaction is finished, the chatan should return the kli to the mesader kiddushin.<ref>Rama C.M. 195:4, Pitchei Choshen (Kinyanim 7:10), Chomat Mishpat p. 78. Rama explains that it is understood that the kinyan is done with the intention of symbolically enacting the transaction but the recipient of the kli will return the kli.</ref> | |||
# The chatan should raise up the kli 3 tefachim.<ref>Shulchan Aruch C.M. 198:2 quotes a dispute between Rashi and Tosfot whether it is necessary to pick up the kli 1 or 3 tefachim. He quotes the opinion of 1 tefach second. Chomat Mishpat p. 79 writes that the chatan should pick it up 3 tefachim to be sure.</ref> If he's doing a chalipin above a table, some say that it needs to be raised up 3 tefachim above the table, while others hold that it is sufficient to raise it 3 tefachim from the ground, even if it is within 3 tefachim of the table. Initially a person should try to avoid this by having the chatan raise the kli 3 tefachim above the table.<ref>Chomat Mishpat p. 79</ref> | |||
# The chatan should be aware that his act of chalipin obligates him in his obligations of the kesubah.<ref>Chomat Mishpat p. 80</ref> | |||
=== Details of the kli for chalipin === | === Details of the kli for chalipin === | ||
