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Introduction to Kesuba: Difference between revisions
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→Making the Kinyan
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# 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 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.</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> | # 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 kinyan does not have to be done in the presence of the kallah. | |||
# 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> | |||
# Once the kli used for chalipin is transferred the transaction is finished and the chatan should return the kli to the mesader kiddushin.<ref>Rama C.M. 195:4, Pitchei Choshen (Kinyanim 7:10). 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> | |||
=== Details of the kli for chalipin === | |||
# A kli can be used for chalipin even though it isn't even worth a prutah.<ref>Shulchan Aruch C.M. 195:2, Pitchei Choshen (Kinyanim 7:7:4), Mishpat Hakinyan (v. 2 p. 186)</ref> | |||
# A disposable kli could technically be used for a kinyan chalipin.<ref>Mishpat Hakinyan v. 2 p. 191 argues that a disposable utensil is a kli for chalipin even if it isn't susceptible to tumah. </ref> | |||
# A kli that is forbidden to benefit from may not be used for chalipin.<ref>Bava Metsia 47b, Shulchan Aruch C.M. 195:2, Pitchei Choshen (Kinyanim 7:7), Mishpat Hakinyan (v. 2 p. 188)</ref> | |||
# Fruit cannot be used for the chalipin.<ref>Shulchan Aruch C.M. 195:2, Pitchei Teshuva (Kinyanim 7:5), Mishpat Hakinyan (v. 2 p. 195)</ref> | |||
# There is a major dispute if an animal can be used for chalipin.<ref>Rama C.M. 195:2 writes that it is acceptable to use an animal for chalipin as it is similar to a kli, however, Mishpat Hakinyan (v. 2 p. 195) notes that Shulchan Aruch seems to disagree and treats an animal like fruit. Pitchei Choshen (Kinyanim 7:5) also writes that animals are not acceptable but some allow using them for chalipin.</ref> | |||
# A coin cannot be used for chalipin.<ref>Shulchan Aruch C.M. 195:2, Pitchei Choshen (Kinyanim 7:6), Mishpat Hakinyan (v. 2 p. 197)</ref> A coin that was disqualified as currency can be used for chalipin.<ref>Rama C.M. 195:2 based on Tur, Pitchei Choshen (Kinyanim 7:6)</ref> Some poskim do not allow using a coin even if it isn't currency.<ref>Mishpat Hakinyan (v. 2 p. 199) based on Rambam</ref> | |||
==Eidei Kesubah (Witnesses)== | ==Eidei Kesubah (Witnesses)== | ||
