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Introduction to Kesuba: Difference between revisions
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→Making the Kinyan
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=== How high should the chatan raise the kli === | === How high should the chatan raise the kli === | ||
# The ''chatan'' should raise up the ''kli'' 3 [[Tefachim|''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> | # The ''chatan'' should raise up the ''kli'' 3 [[Tefachim|''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> | # 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 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> | ||
# For a handkerchief it is sufficient for the chatan to take grasp of 3x3 ''[[etzbaot]]'' of the handkerchief, even if the ''mesader kiddushin'' is still holding onto the other part of the handkerchief.<ref>Shulchan Aruch C.M. 195:4</ref> It is simpler for the ''mesader kiddushin'' to just give the entire handkerchief to the chatan and not hold onto part of it, but if he does it is still effective.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 16]) </ref> If someone does a ''kinyan chalipin'' with a ballpoint pen the ''chatan'' must hold the entire pen and it is ineffective if the ''mesader kiddushin'' is holding one part of it and the chatan the other half.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 10]) </ref> | # For a handkerchief it is sufficient for the ''chatan'' to take grasp of 3x3 ''[[etzbaot]]'' of the handkerchief, even if the ''mesader kiddushin'' is still holding onto the other part of the handkerchief.<ref>Shulchan Aruch C.M. 195:4</ref> It is simpler for the ''mesader kiddushin'' to just give the entire handkerchief to the chatan and not hold onto part of it, but if he does it is still effective.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 16]) </ref> If someone does a ''kinyan chalipin'' with a ballpoint pen the ''chatan'' must hold the entire pen and it is ineffective if the ''mesader kiddushin'' is holding one part of it and the ''chatan'' the other half.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 10]) </ref> | ||
=== In whose presence === | === In whose presence === | ||
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=== Details of the kli for chalipin === | === Details of the kli for chalipin === | ||
# 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. Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 4-12]) explains the view of Rav Yitzchak Elchanan. He adds that many rabbonim did not want to follow the lenient view of Rav Yitzchak Elchanon to allow a kinyan chalipin with 3x3 etzbaot of a cloth that wasn't wool or linen, so they used the corner of their wool jacket (''kapota''). </ref> Other non-cloth utensils do not have this requirement to be 3x3 ''etzbaot''. | # 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 (Rambam Hilchot Kelim 22:1). 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. Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 4-12]) explains the view of Rav Yitzchak Elchanan. He adds that many rabbonim did not want to follow the lenient view of Rav Yitzchak Elchanon to allow a kinyan chalipin with 3x3 etzbaot of a cloth that wasn't wool or linen, so they used the corner of their wool jacket (''kapota''). </ref> Other non-cloth utensils do not have this requirement to be 3x3 ''etzbaot''. | ||
# 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. Chomat Mishpat writes that certain gedolim would specifically use a handkerchief and not a gartel because a gartel is not always 3 etzbaot wide, and wouldn't be considered a kli for purposes of tumah or chalipin. 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> | # 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. Chomat Mishpat writes that certain gedolim would specifically use a handkerchief and not a gartel because a gartel is not always 3 etzbaot wide, and wouldn't be considered a kli for purposes of tumah or chalipin. 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> | ||
# Some ''gedolim'' have a practice to use a pen (which isn't broken) for the ''kinyan chalipin''.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 16-7]) mentions that he saw that the practice in the bet din of Tel Aviv was to use a pen for the kinyan chalipin. Sh"t Baruch Omer CM 161 agrees that pen is fine for a kinyan chalipin. Rav Ovadia Yosef Toledano (Mishpat Hamechira p. 614) writes that his teacher, Rav Asher Weiss, usually does kinyan chalipin with a pen. He quotes that one gadol thought that a pen may not be used for chalipin since it runs out of ink at some point and is similar to fruit which become depleted. Rav Ovadia Toledano rejects this logic since many kelim become depleted after being used many times but are still considered a kli. </ref> | # Some ''gedolim'' have a practice to use a pen (which isn't broken) for the ''kinyan chalipin''.<ref>Rav Schachter ([https://www.yutorah.org/sidebar/lecturedata/783685/Shiur-#26Bava-Metzia%D7%99%D7%97%D7%9C%D7%95%D7%A7%D7%95,-%D7%97%D7%91-%D7%9C%D7%90%D7%97%D7%A8%D7%99%D7%A0%D7%99 Bava Metsia Shiur 26 min 16-7]) mentions that he saw that the practice in the bet din of Tel Aviv was to use a pen for the kinyan chalipin. Sh"t Baruch Omer CM 161 agrees that pen is fine for a kinyan chalipin. Rav Ovadia Yosef Toledano (Mishpat Hamechira p. 614) writes that his teacher, Rav Asher Weiss, usually does kinyan chalipin with a pen. He quotes that one gadol thought that a pen may not be used for chalipin since it runs out of ink at some point and is similar to fruit which become depleted. Rav Ovadia Toledano rejects this logic since many kelim become depleted after being used many times but are still considered a kli. </ref> | ||
