סוגיה 8- קידושי שטר וקידושי ביאה

קידושי שטר

קידושין באמצעות שטר לא נזכרים בתורה. חז"ל הם שלמדו זאת (על ידי היקש) משטר הגירושין (הגט). שטר הקידושין לא נועד להיות ראיה או הוכחה לכך שהאישה מקודשת, אלא עצם כתיבתו ומסירתו לידיה של האישה הם מעשה הקידושין עצמו. האיש מוסר לאשה בפני שני עדים מסמך (גם אם אינו שווה פרוטה) בו כתובה אחת מלשונות הקידושין.

ספרי דברים רס״ח:ג׳

ומנין אף בשטר? ....

תלמוד לומר: "וכתב לה ספר כריתות ונתן בידה ושלחה מביתו" (דברים כ"ד א)

מקיש הויתה של זה ליציאתה של זה -

מה יציאתה (מזה) בשטר, אף הויתה (מזה) בשטר.

Sifrei Devarim 268:3

(1) (Devarim 24:1) "If a man take a woman": We are hereby taught that a woman is acquired (as a wife) by money. For (without this verse) it would follow otherwise, viz.: If a Hebrew handmaid, who is not acquired by cohabitation is acquired by money, then a woman, who is acquired by cohabitation, how much more so should she be acquired by money! — (No,) this is refuted by the instance of a yevamah (leviratess), who is acquired by cohabitation, but is not acquired by money. Do not wonder, then, if a woman, who, though she is acquired by cohabitation were not to be acquired by money. It must, therefore, be written "If a man take a woman," to teach that a woman is acquired by money.

(2) "and he cohabit with her." We are hereby taught that a woman is acquired by cohabitation. For (without this verse) it would follow otherwise, viz.: If a yevamah, who is not acquired by money, is acquired by cohabitation, then a woman, who is acquired by money, how much more so should she be acquired by cohabitation! — (No,) this is refuted by the instance of a Hebrew handmaid, who is acquired by money, but is not acquired by cohabitation. Do not wonder, then, if a woman, who, though she is acquired by money, were not to be acquired by cohabitation. It must, therefore, be written "and he cohabit with her," to teach that a woman is acquired by cohabitation.

(3) And whence is it derived that she is also acquired by a writ (shtar)? It follows, viz.: If money, which does not release (a woman from marriage), acquires, then shtar (a writ [of divorce]), which does release a woman, how much more so should it acquire! (No,) this may be true of money, which acquires hekdesh (consecrated property) and second tithe, but not with shtar, which does not acquire hekdesh and second tithe. It must, therefore, be written (Ibid.) "then he shall write for her a scroll of divorce, and he shall place it into her hand, and he shall send her from his house. This one's coming in (to marriage) is compared to her going out (viz. Ibid. 2). Just as her going out is with a shtar (i.e., a get), so, her coming in.

ספרי דברים: קובץ מדרשי הלכה לספר דברים. תוכן וסגנון הדרשות מצביע כי נכתב בשיטתו של רבי עקיבא.

שטר: מסמך משפטי. בשטר הקידושין האיש כותב אחת מלשונות הקידושין.

כשהאישה בוחרת לקבל אותו היא הופכת למקודשת/מאורסת.

קידושין ט׳ א:ו׳-י״ב

תנו רבנן בשטר כיצד?

כתב לו על הנייר או על החרס אע"פ שאין בו שוה פרוטה

בתך מקודשת לי בתך מאורסת לי בתך לי לאינתו הרי זו מקודשת ...

ואמר רבא אמר רב נחמן: כתב לו על הנייר או על החרס אע"פ שאין בו שוה פרוטה בתך מקודשת לי בתך מאורסת לי בתך לי לאינתו בין ע"י אביה בין ע"י עצמה מקודשת מדעתו והוא שלא בגרה

כתב לה על הנייר או על החרס אע"פ שאין בו שוה פרוטה הרי את מקודשת לי הרי את לי לאינתו הרי את מאורסת לי מקודשת בין ע"י אביה בין ע"י עצמה מדעתה והוא שבגרה :

Kiddushin 9a:6-12

beads [ḥumrei]of glass [petakhyata]. A certain woman came and said to him: Give me one string. He said to her: If I give you this string will you be betrothed to me with it? She said to him: Give, give. Rav Ḥama said: Any use of the expression: Give, give, is nothing. Although she said: Give, give, she did not agree to the condition, as she was mocking him and had no intention of actually becoming betrothed. The Gemara relates a similar incident: There was a certain man who was drinking wine in a store. A woman came in and said to him: Give me one cup of wine. He said to her: If I give you a cup of wine will you be betrothed to me with it? She said to him: Give to drink, give it to me to drink. Rav Ḥama said that any use of the expression: Give to drink, give it to me to drink, is nothing, i.e., she certainly did not intend to accept the condition and she is not betrothed. The Gemara further relates: There was a certain man who was picking dates from a date tree. A certain woman came and said to him: Throw me two. He said to her: If I throw two dates to you will you be betrothed to me with them? She said to him: Throw, throw. Rav Zevid said: Any use of the expression: Throw, throw, is nothing, and she is not betrothed. A dilemma was raised before the Sages: If she said: Give, or: Give to drink, or: Throw, without the additional emphasis of the repetition, what is the halakha? Does this straightforward statement indicate that she actually meant him to give it to her in accordance with his stated condition, or does she not agree to betrothal even here? Ravina said: She is betrothed. Rav Sama bar Rakta said in the form of an oath: By the king’s crown! She is not betrothed. The Gemara states: And the halakha is that she is not betrothed. The Gemara issues further rulings concerning the previous cases. And the halakha is: With regard to silk garments that are worth more than one peruta, appraisal is not necessary before a woman can be betrothed with them. And the halakha is in accordance with the opinion of Rabbi Elazar, that if a man promised a woman one hundred dinars as betrothal money and gave her only a dinar, she is betrothed. And the halakha is in accordance with the opinion of Rava, who said that Rav Naḥman said that if he promised one hundred dinars and gave her only collateral, this is not a valid betrothal. § The Sages taught: How is betrothal performed with a document? If he wrote the following for a young woman’s father on paper or earthenware, despite the fact that the paper or earthenware is not worth one peruta: Your daughter is betrothed [mekuddeshet] to me, or: Your daughter is betrothed [me’oreset] to me, or: Your daughter is to me as a wife, then she is betrothed. There is no requirement for the paper or earthenware to be worth one peruta, as she is not betrothed through the value of the paper or earthenware. Rabbi Zeira bar Memel objects to this description of the writing of the document: But this document is not comparable to a bill of sale. There, in the case of a bill of sale, the seller is the one who writes to the buyer: My field is sold to you. Here, the husband, who is akin to a buyer, is the one who writes: Your daughter is betrothed to me. Rava said: There, in the case of a sale, the formulation of the document is taken from the context of the verse, and here, in the case of betrothal, the formulation of the document is likewise taken from the context of the verse. Rava elaborates: There, with regard to a sale, it is written: “And sells of his ancestral land” (Leviticus 25:25), which indicates that the Merciful One renders the transaction dependent on the seller. Here, it is written: “If a man takes a woman” (Deuteronomy 22:13), meaning that the Merciful One renders the betrothal dependent on the husband. The Gemara asks: There, in the case of a sale, it is also written: “Men shall buy [yiknu] fields for money” (Jeremiah 32:44), which indicates that the matter depends upon the buyer. The Gemara answers: Read into the verse: Shall sell [yikkanu]. The Gemara asks: What is the reason that you read it as yikkanu; because it is written in the verse in Leviticus: “And sells,” and there is a preference to have the verse from the Prophets accord with that of the Torah? So too, instead of: “If a man takes [ki yikaḥ]” (Deuteronomy 22:13), read into the verse: When he is given [ki yakiaḥ], as it is written: “I gave my daughter to this man” (Deuteronomy 22:16), so that the verses will accord with each other. Rather, Rava said: There is no proof from the verses for these rulings, as they are a halakha received through tradition, and the Sages based them on the verses. And if you wish, say: There too, in the case in Jeremiah, it is written with regard to the buyer: “And I took the deed of purchase” (Jeremiah 32:11), thereby indicating that it is the seller who writes the document. And Rava says that Rav Naḥman says: If he wrote the following for him on paper or earthenware, despite the fact that the paper or earthenware is not worth one peruta: Your daughter is betrothed [mekuddeshet] to me, or: Your daughter is betrothed [me’oreset] to me, or: Your daughter is to me as a wife, whether he gave it to her father or whether he gave it directly to her, she is betrothed with the consent of her father. And this is the halakha provided that she has not yet reached her majority, before which her father alone has the authority to betroth her. If he wrote for her on paper or earthenware, despite the fact that the paper or earthenware is not worth one peruta: You are hereby betrothed [mekuddeshet] to me, or: You are hereby to me as a wife, or: You are hereby betrothed [me’oreset] to me, then she is betrothed whether he gave it to her father or to her, as long as this was with her consent. And this is the halakha provided that she has reached her majority and is under her own authority. § Rabbi Shimon ben Lakish raises a dilemma: With regard to a document of betrothal that was written not for her sake, i.e., not for this particular woman, what is the halakha? Do we juxtapose the halakhot of the modes of becoming betrothed to the halakhot of the modes of leaving a marriage, i.e., divorce? If so, one should say: Just as

ביאור:

תנו רבנן [שנו חכמים]: קידושין בשטר כיצד?

כתב לו הבעל לאבי הנערה שטר על הנייר או על החרס אף על פי שאין בו בנייר או בחרס שוה פרוטה (שאין כאן קידושין בשווה כסף), בלשון: "בתך מקודשת לי", או "בתך מאורסת לי", או "בתך לי לאינתו" [לאשה]— הרי זו מקודשת.

ואמר רבא אמר רב נחמן:

כתב לו על הנייר או על החרס, אף על פי שאין בו שוה פרוטה, "בתך מקודשת לי", או"בתך מאורסת לי", או "בתך לי לאינתו" [לאשה],

בין שנתנו על ידי אביה בין שנתנו על ידי עצמה — מקודשת מדעתו של אביה, והוא בזמן שלא בגרה, שאז לאביה בלבד יש רשות לקדשה.

ואם כתב לה על הנייר או על החרס, אף על פי שאין בו שוה פרוטה, "הרי את מקודשת לי", או "הרי את לי לאינתו" [לאשה] או "הרי את מאורסת לי" — מקודשת, בין שמסרם על ידי אביה בין על ידי עצמה ובלבד שעשה זאת מדעתה (מרצונה) — והוא דווקא לאחר שבגרה ועומדת ברשות עצמה.

רבא- אמורא בבלי (דור 4) – אמצע המאה הרביעית לספירה. אחרי מות אביי נתמנה להיות ראש ישיבת פומבדיתא (שעברה למחוזא) עד יום מותו .

רב נחמן (בר יעקב) – אמורא בבלי (דור 3 - מנהרדעא), היה מומחה בדיני ממונות.

משנה תורה, הלכות אישות ג׳:ג׳-ד׳

((ג) וְאִם קִדֵּשׁ בִּשְׁטָר כּוֹתֵב עַל הַנְּיָר אוֹ עַל הַחֶרֶס אוֹ עַל הֶעָלֶה אוֹ עַל כָּל דָּבָר שֶׁיִּרְצֶה. הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי אוֹ הֲרֵי אַתְּ מְאֹרֶסֶת לִי וְכָל כַּיּוֹצֵא בִּדְבָרִים אֵלּוּ וְנוֹתְנוֹ לָהּ בִּפְנֵי עֵדִים:

(ד) וְצָרִיךְ שֶׁיִּכְתֹּב אוֹתוֹ לְשֵׁם הָאִשָּׁה הַמִּתְקַדֶּשֶׁת כְּגֵט. וְאֵינוֹ כּוֹתְבוֹ אֶלָּא מִדַּעְתָּהּ. כְּתָבוֹ שֶׁלֹּא לִשְׁמָהּ אוֹ לִשְׁמָהּ שֶׁלֹּא מִדַּעְתָּהּ אַף עַל פִּי שֶׁנְּתָנוֹ לָהּ לְדַעְתָּהּ בִּפְנֵי עֵדִים אֵינָהּ מְקֻדֶּשֶׁת

Mishneh Torah, Marriage 3:3-4

(1) How is a woman sanctified (for engagement)? If one choses to do so with money (or its equivalent), it can not have less than the value of a "Peruta". He says to her, "Behold, you are sanctified to me", "Behold, you are engaged to me", "Behold, with this, you are to be my wife", and he gives her the object in front of witnesses. The man must be the one to say words that have the meaning of an acquisition, and it must be he that is giving her the money.

(2) If she gives the money and says, "I am sanctified to you", "I am engaged to you", "I am a wife to you" or any other acquisition term, she is not sanctified. So too if she gives the money and he speaks, she is not sanctified. If he gives and she speaks, this is a questionable sanctification.

(3) If he sanctified with a document, he writes it on paper or clay or of earth, or on anything he desires. "Behold, you are sanctified to me", "Behold, you are engaged to me" and so on (other terms), and gives her the document in front of witnesses.

ביאור:

ג. כּוֹתֵב עַל הַנְּיָר אוֹ עַל הַחֶרֶס וכו'. שעל כל אלה ניתן לכתוב את הגט (הלכות גירושין ד,ג), שממנו נלמד דין שטר קידושין.

ד. כַּגֵּט. כשם שהגט צריך להיכתב לשם האישה המתגרשת. מִדַּעְתָּהּ. על דעתה, בהסכמתה.

פותחים סוגריים

*חוקי אשנונה:

27- כי יקח איש בת איש מבלי שאול פי אביה ואמה, ולא יתן שטר- נשואין, כחוק, לאביה ולאמה, אף כי תשב בביתו שנה תמימה, אינה אשת-איש.

28- אך אם נתן שטר-נישואין כחוק לאביה ולאמה, ובא אליה, אשת איש היא; אם יתפשוה בחיק איש אחר, מות תומת ולא תחייה .

חוקי אשנונה- קובץ חוקים מן המאה ה- 20 לפני ספירה, מהקדומים ביותר שנמצאו בעולם התרבות השמית. החוקים נכתבו על לוחות חרס בכתב יתדות. הם התגלו בעיראק ומסייעים בחקר התרבויות הקדומות.

לוחות חוקי אשנונה

https://upload.wikimedia.org/wikipedia/he/thumb/a/a0/%D7%97%D7%95%D7%A7%D7%99_%D7%90%D7%A9%D7%A0%D7%95%D7%A0%D7%94.jpg/220px-%D7%97%D7%95%D7%A7%D7%99_%D7%90%D7%A9%D7%A0%D7%95%D7%A0%D7%94.jpg

עיון ודיון

1. תארו את הליך קידושי השטר על פי הברייתא.

2. הסבירו את ההבחנה שעושה רבא בשם רב נחמן בין אשה "שלא בגרה" לאשה בוגרת.

3. מה מוסיף הרמב"ם על הדיון התלמודי?

4. ציינו את ההבדלים בין חוקי אשנונה להלכה כפי שמנוסחת ע"י הרמב"ם.

קידושי ביאה

קיום יחסי אישוּת (יחסי-מין) למטרת קידושין.

קידושין ט׳ ב:ז׳

ובביאה : מנא לן?

אמר ר' אבהו אמר רבי יוחנן דאמר קרא (דברים כב, כב)

בעולת בעל מלמד שנעשה לה בעל על ידי בעילה

Kiddushin 9b:7

we require that the document of leaving, i.e., a bill of divorce, must be written specifically for her sake, so too, we require that the document of becoming betrothed be written for her sake. Or perhaps we juxtapose the different modes of becoming betrothed to each other and say: Just as we do not require that becoming betrothed with money must be carried out with coins minted for her sake, so too, we do not require that becoming betrothed with a document must be with a document written for her sake. After he raised the dilemma, Rabbi Shimon ben Lakish then resolved it. We juxtapose becoming betrothed to leaving a marriage, as the verse states: “And she departs out of his house, and goes and becomes” (Deuteronomy 24:2). This shows that the halakhot of a betrothal document are derived from those of a bill of divorce, and therefore a document of betrothal must also be written for her sake. It was stated that amora’im disagreed with regard to the following issue: If a man wrote a document of betrothal for her sake but without her consent, i.e., she did not know at the time that they were writing it but accepted it afterward, Rava and Ravina say: She is betrothed. Rav Pappa and Rav Sherevya say: She is not betrothed. Rav Pappa said: I will say their reason and I will say my reason. I will state their reason, as it is written: “And she departs out of his house, and goes and becomes,” by which the verse juxtaposes becoming betrothed to leaving a marriage. Just as a bill of divorce, written for leaving a marriage must be written for her own sake but can be written without her consent, so too, a document written for becoming betrothed must be written for her own sake and can even be without her consent. And I will say my reason: The verse says: “And she departs out of his house, and goes and becomes.” The verse juxtaposes becoming betrothed to leaving a marriage. Just as with regard to a bill of divorce, written for leaving a marriage, we require the consent of the one transferring ownership, i.e., the man, as he divorces and transfers authority of the woman to herself, so too, with regard to a document written for becoming betrothed, we require the consent of the one transferring ownership, which in this case is the woman, who must agree to the marriage. The Gemara raises an objection from a mishna (Bava Batra 167b) against the opinion that she is betrothed if the document was written without her consent. One writes documents of betrothal and marriage only with the consent of both the man and woman. What, is the mishna not referring to actual documents of betrothal and marriage, which indicates that the document must be written with the woman’s consent? The Gemara rejects this proof: No, this is referring to documents of stipulation, which contain the details of the dowry. And this statement is in accordance with that which Rav Giddel says that Rav says. As Rav Giddel says that Rav says: If the father of one member of the couple says to the father of the other: How much are you giving to your son? And he answers: Such and such, and adds: How much are you giving to your daughter? And the other responds: Such and such, then if they, the couple, subsequently arose and became betrothed, they acquire everything that was promised. These are the matters that are acquired through speech, and they do not require an act of acquisition. The documents of betrothal mentioned here that require the woman’s consent are those which contain this type of monetary obligation, not actual documents of betrothal. § The mishna teaches that a woman can be betrothed through sexual intercourse. The Gemara asks: From where do we derive this? Rabbi Abbahu said that Rabbi Yoḥanan said that the verse states: “If a man be found lying with a married woman [beulat ba’al]” (Deuteronomy 22:22). This teaches that he becomes her husband [ba’al] by means of sexual intercourse [be’ila]. Rabbi Zeira said to Rabbi Abbahu, and some say it was Reish Lakish who said this to Rabbi Yoḥanan: Is this other proof, taught by Rabbi Yehuda HaNasi, unacceptable: “When a man takes a woman and engages in sexual intercourse with her” (Deuteronomy 24:1)? This verse teaches that she can be acquired through intercourse. The Gemara answers that the verse cited by Rabbi Yehuda HaNasi is insufficient proof that a woman can be betrothed via intercourse, as, if this halakha were derived only from there, I would say that she is not considered his wife unless he first betroths her through money, indicated by the phrase “takes a woman,” and then engages in intercourse with her. This is the only valid mode of betrothal, and intercourse alone is not enough. Therefore, the verse states “a married woman [beulat ba’al]” and teaches us that intercourse by itself is a valid means of betrothal. Rabbi Abba bar Memel objects to this: The above suggestion, that both money and sexual intercourse are required for betrothal, cannot be the correct interpretation of the verse: “When a man takes a woman and engages in sexual intercourse with her.” This is because, if it is so, that a woman can be acquired only through both betrothal money and intercourse, the case of one who engages in intercourse with a betrothed young woman, concerning which the Merciful One states in the Torah that he is punished by stoning (see Deuteronomy 22:23–24), how can you find a case where he is liable to be punished in this manner? Rabbi Abba bar Memel elaborates: If this is referring to a case where he betrothed her with money and then engaged in sexual intercourse with her, she is a non-virgin, and the punishment of stoning applies only to one who engages in intercourse with a betrothed young virgin. If it is referring to a case where he betrothed her with money and did not engage in intercourse with her, this is nothing, as the betrothal has not been completed. The Rabbis said before Abaye: You find it in a case where he betrothed her with money and then the betrothed man engaged in intercourse with her in an atypical manner, i.e., anal intercourse. Despite the fact that she is still a virgin, the betrothal has taken effect by means of this type of sexual intercourse. Abaye said to those Sages: The verse cannot be explained in that manner, as Rabbi Yehuda HaNasi and the Rabbis disagree only with regard to another man, i.e., whether a woman is considered to be a virgin after engaging in anal intercourse with another man. But with regard to her husband, everyone agrees that if he engages in intercourse in an atypical manner with her he has rendered her a non-virgin. If so, she is no longer considered a virgin with regard to the halakha of a betrothed young woman. The Gemara clarifies: What is the dispute to which Abaye refers? As it is taught in a baraita (Tosefta, Sanhedrin 10:4): If ten men engaged in sexual intercourse with a betrothed young woman, and she is still a virgin, as they engaged in anal intercourse with her, they are all punished by stoning. Rabbi Yehuda HaNasi says: I say that the first one is punished by stoning, as he engaged in intercourse with a virgin young woman, but all the others are punished by strangulation. Once the first man engages in intercourse with her she is no longer considered a virgin, even if he engaged in anal intercourse with her. Rav Naḥman bar Yitzḥak said a different answer to Rabbi Abba bar Memel’s question: You find a situation where a man who engages in intercourse with a betrothed young woman is punished by stoning in a case where he betrothed her with a document. Everyone agrees that since a document, i.e., a bill of divorce, completely removes a woman from her husband, without the need for an additional act, it also completely brings her into the state of betrothal. If a young woman is betrothed by means of a document, she can be a betrothed young woman while remaining a virgin. The Gemara returns to the different derivations of Rabbi Yehuda HaNasi and Rabbi Yoḥanan. And Rabbi Yoḥanan, who maintains that the mode of betrothal through intercourse is derived from the verse: “If a man be found lying with a married woman [beulat ba’al]” (Deuteronomy 22:22), what does he do with this verse: “When a man takes a woman and engages in sexual intercourse with her” (Deuteronomy 24:1)? The Gemara answers: He requires that verse for a different halakha, as he maintains that it teaches that this woman can be acquired through intercourse, but a Hebrew maidservant cannot be acquired through intercourse. As it might enter your mind to say: Let the halakha of a Hebrew maidservant be derived through an a fortiori inference from the halakha of a yevama: Just as a yevama, who cannot be acquired through money at all, nevertheless can be acquired through intercourse, which indicates that the ability of an act of sexual intercourse to effect acquisition is greater than that of money, is it not logical that this Hebrew maidservant, who can be acquired through money, can also be acquired through intercourse? The Gemara rejects this opinion: What is unique about a yevama is that she is bound and standing waiting for the yavam, i.e., there is already a connection between them. Perhaps it is for this reason that intercourse enables a yavam to acquire a yevama, and the same cannot be said of a maidservant. Rather, it might enter your mind to say a different claim: Since it is written with regard to a the master of a Hebrew maidservant: “If he take himself another wife” (Exodus 21:10), this verse juxtaposes a Hebrew maidservant with another woman that a master marries: Just as another woman that a master marries can be acquired through intercourse, so too, a Hebrew maidservant can be acquired through intercourse. Therefore, the verse teaches us, with the phrase “and engages in sexual intercourse with her,” that this is not the case. The Gemara asks: And Rabbi Yehuda HaNasi, who learns that betrothal can be effected through sexual intercourse from this verse, from where does he derive this conclusion that a Hebrew maidservant cannot be acquired through intercourse? The Gemara answers: If so, that this verse is teaching only one halakha, let the Merciful One write simply: And he engages in sexual intercourse. What is the meaning of the phrase “And he engages in sexual intercourse with her”? Learn two halakhot from it. One can learn from this verse both that a woman can be acquired through intercourse, and that an ordinary woman can be betrothed through intercourse but a Hebrew maidservant cannot be acquired through intercourse. The Gemara asks: And according to the opinion of Rava, who said: Bar Ahina explained this to me by citing a proof from the following verse: “When a man takes a woman and engages in sexual intercourse with her” (Deuteronomy 24:1), which teaches that betrothal that is given to consummation, i.e., betrothal when it is permitted for the man and woman to engage in intercourse, is a betrothal, but betrothal that is not given to consummation is not a valid betrothal, what is there to say? Since he uses this verse for a different purpose, from where does Rava derive that a woman can be betrothed through intercourse and that a Hebrew maidservant cannot be acquired in this manner? The Gemara answers: If so, that a woman cannot be betrothed through intercourse, let the verse write: When a man takes a woman or engages in intercourse with her. What is indicated by the phrase: “And engages in sexual intercourse with her”? One can learn from the verse all these halakhot, that intercourse is a valid mode of betrothing a woman but not acquiring a maidservant, and betrothal is effective only when it is given to consummation. The Gemara asks: And Rabbi Yehuda HaNasi, what does he do with this verse: “If a man be found lying with a married woman [beulat ba’al]” (Deuteronomy 22:22), from which Rabbi Yoḥanan derives that intercourse is a valid means of betrothal? The Gemara answers: Rabbi Yehuda HaNasi requires this verse for the halakha that the husband renders her a non-virgin even if he engages in intercourse with her in an atypical manner, but no other man renders her a non-virgin by engaging in intercourse with her in an atypical manner. The Gemara asks: And does Rabbi Yehuda HaNasi accept this opinion? But isn’t it taught in a baraita: If ten men engaged in intercourse with a betrothed young woman, and she is still a virgin, they are all punished by stoning. Rabbi Yehuda HaNasi says: I say that the first one is punished by stoning, but the others are all punished by strangulation. This proves that in the opinion of Rabbi Yehuda HaNasi, even one who is not her husband can render a woman a non-virgin by engaging in anal intercourse with her.

דברים כ״ב:כ״ב

(כב) כִּֽי־יִמָּצֵ֨א אִ֜ישׁ שֹׁכֵ֣ב ׀ עִם־אִשָּׁ֣ה בְעֻֽלַת־בַּ֗עַל וּמֵ֙תוּ֙ גַּם־שְׁנֵיהֶ֔ם הָאִ֛ישׁ הַשֹּׁכֵ֥ב עִם־הָאִשָּׁ֖ה וְהָאִשָּׁ֑ה וּבִֽעַרְתָּ֥ הָרָ֖ע מִיִּשְׂרָאֵֽל׃ (ס)

Deuteronomy 22:22

(22) If a man is found lying with another man’s wife, both of them—the man and the woman with whom he lay—shall die. Thus you will sweep away evil from Israel.

ביאור:

שנינו במשנה שהאשה נקנית בין השאר גם בביאה, שואלים: מנא לן [מנין לנו זאת]?

אמר ר' אבהו אמר ר' יוחנן:

שאמר קרא [הכתוב] "בעלת בעל" (דברים כב, כב),

מלמד שנעשה לה בעל על ידי בעילה.

מנא לן? (מניין לנו?): שאלת חקירה לבירור המקור המקראי עליו מסתמך הדיון התלמודי.

כתשובה, הגמרא מביאה פסוק שהדברים נלמדים ממנו.

תוספתא קידושין א׳:א׳

(א) ...ובביאה

כל ביאה שהיא לשם קדושין מקודשת

שאינה לשם קדושין אינה מקודשת.

Tosefta Kiddushin 1:1

(1) A woman can be acquired in three ways anbd can acquire herself in two ways. She is acquired by money, document, or intercourse. By money, how so? If he gave her money or valuables and told her "[with this] you are sanctified unto me", "[with this] you are betrothed to me", "[with this] you are my wife", she is married to him, but if she gave him money or valuables and said "[with this] I am sanctified unto you", "[with this] I am betrothed to you", "[with this] I am your wife", she is not married to him. By document, how so? Need I say if the document is valuable? She would be married by the value of it. Rather say that even if he wrote it on clay or paper and gave it to her she is married to him. Intercourse - the rule is that intercourse for the sake of marriage renders her married but if it is not for the sake of marriage she is not married.

(11) One who does one mitzvah, it is good for them, and lengthens their days, and they'll inherit the land. And anyone who does one aveirah, it is bad for them, and shortens their days, and they will not inherit the land. About this it is said, "And one sin can destroy much good" (Ecclesiastes 9:18)—with a single sin this one can remove from themselves much good. One should always see oneself as if they were half innocent and half guilty. If they do one mitzvah, they are happy that they moved themselves to the side of innocence. If they do one aveirah, woe to them that they moved themselves to the side of guilt. About this it is said, "And one sin can destroy much good" (Ecclesiastes 9:18)—with a single sin this one can remove from themselves much good. Rabbi Shimon ben Lazar says in the name of Rabbi Meir: The individual is judged after the majority, and the world is judged after the majority. One should always see oneself as if they were half innocent and half guilty, and the word [as if it were] half innocent and half guilty. If they do one mitzvah, they are happy that they moved themselves and the world to the side of innocence. If they do one aveirah, woe to them that they moved themselves and the world to the side of guilt. About this it is said, "And one sin can destroy much good" (Ecclesiastes 9:18)—with a single sin this one can remove from themselves much good. Rabbi Shimon says: Someone who was righteous all their days, and in the end rebelled—they lose it all, as it says, "The righteousness of the righteous person will not save them in the day of their guilt" (Ezekiel 33:12). Someone who was evil all their days and did teshuvah at the end, God will receive them, as it is said, "And the wickedness of the wicked person will not conquer them on the day they return from their wickedness" (Ezekiel 33:12). Anyone who is occupied with Scripture, with recitation, and with a career, about this it is said, "The threefold cord (hut) will not be quickly severed" (Ecclesiastes 4:12).

יבמות נ״ב א:ו׳-י׳

דרב מנגיד (מלקה) מאן דמקדש בביאה

ומאן דמקדש בשוקא

ומאן דמקדש בלא שדוכי

.... ואיכא דאמרי אפילו בשדוכי נמי

משום פריצותא

Yevamot 52a:6-10

The Gemara is puzzled: Is this case upon which the mishna elaborates the case of a bill of divorce after a bill of divorce that is mentioned first in the mishna? The mishna first is referring to a bill of divorce after a bill of divorce, but when it comes to the specifics, it mentions a bill of divorce after levirate betrothal. Rav Yehuda said: This is what the tanna is saying: With regard to a bill of divorce after a bill of divorce, and levirate betrothal after levirate betrothal, it is as we said and these cases were explained in the baraita, but with regard to one yavam and one yevama, how is their complex bond released? He then proceeds to delineate: If he performed levirate betrothal with his yevama and gave her a bill of divorce, she requires ḥalitza from him. § The mishna teaches: If the yavam performed levirate betrothal and engaged in intercourse, this is done in accordance with its mitzva. The Gemara suggests: Let us say that this mishna supports the statement of Rav Huna. As Rav Huna said: The mitzva of a yevama is properly performed when the yavam betroths the yevama and only afterward engages in intercourse. This statement indicates that the levirate betrothal is a necessary component of the mitzva, and the mishna seems to imply the same. The Gemara refutes this claim: This is not necessarily the case, as you can read the mishna as stating that this also is in accordance with its mitzva. If he performed levirate betrothal and then engaged in intercourse, this too is a proper manner to proceed, but we do not have to interpret the mishna as indicating that this is the only way to fulfill the mitzva. The Gemara asks: Isn’t this obvious? If one can fulfill the mitzva without performing levirate betrothal, why would one think that levirate betrothal is detrimental? The Gemara answers: It was indeed necessary for the mishna to teach us this, for it might enter your mind to say that since the Master said above (29b): One who performs levirate betrothal with his yevama causes the levirate bond to dissipate from himself, and a standard bond of betrothal and marriage takes effect on him, you might say that he no longer performs a mitzva when he carries out levirate marriage, as the levirate bond is no longer in place. The tanna therefore teaches us that we consider the levirate betrothal and the subsequent intercourse as part of the same process, which constitutes a mitzva. The Gemara continues: With regard to the matter itself, Rav Huna said: The mitzva of levirate marriage is properly performed when the yavam betroths the yevama and afterward engages in intercourse, and if he engaged in intercourse and later performed levirate betrothal, he has acquired the yevama. The Gemara is puzzled: If he engaged in intercourse and then performed levirate betrothal it is obvious that he has acquired her, as he has already acquired her by intercourse. The levirate betrothal does not affect the issue one way or another. Rather, say as follows: If he engaged in intercourse without prior levirate betrothal, even in that case he has acquired her. The Gemara challenges this: But isn’t it taught in a baraita that a yavam who has intercourse without levirate betrothal is flogged? The Gemara answers: The lashes are not because he transgressed by not performing levirate betrothal, but rather they are lashes for rebelliousness given for transgressing a rabbinic law, namely for acting in an immodest manner. The Gemara cites other instances where the Sages administered lashes for immodest behavior. As Rav would flog one who betroths a woman by intercourse, despite the fact that betrothal is effective by this method, because he acted in a promiscuous manner. And he would likewise flog one who betroths a woman in the marketplace, rather than at home, as this too is loose behavior, and he would also administer lashes to one who betroths a woman without a prior marriage agreement [shiddukhei], as this too is an act of permissiveness. And he would further lash one who nullifies a bill of divorce he had earlier sent by declaring in the presence of witnesses that the bill of divorce is nullified. This action is effective, but by doing so he transgresses the rabbinic ordinance of the Sages that bans such an action as it might lead his wife to unlawfully wed another. And he would also flog one who delivers a declaration preemptively invalidating a bill of divorce, by informing three people before giving a bill of divorce that he is not doing so of his own free will and he wants to cancel it ahead of time. Here too he will mislead his wife, who will assume it is a valid bill of divorce. And he would lash one who behaves irreverently toward a messenger of the Sages, even if the messenger is not a scholar, as he thereby shows disrespect to the Sages themselves. And he would administer lashes to one who remained under an excommunication of the Sages for thirty days and did not go to the court and petition for the removal of his excommunication after correcting the sin that led to the excommunication in the first place. This behavior demonstrates that he does not care about the excommunication, and is therefore deserving of lashes. And he would also lash a son-in-law who lives in his father-in-law’s house, as this is likely to lead to temptation between the younger couple and older couple who share the same house. The Gemara asks: With regard to one who lives in his father-in-law’s house, yes, he would lash him, but with regard to one who only passed through his father-in-law’s house at regular intervals, no, he would not lash him? But an incident occurred involving a certain man who passed by the entrance to his father-in-law’s house and Rav Sheshet lashed him. The Gemara explains: There was a special set of circumstances in that case, as that man was suspected with regard to his mother-in-law, and therefore he was lashed merely for passing near her house, as he thereby gave credence to the rumors. The Sages of Neharde’a would say: In all these cases Rav would not flog, apart from the case of one who betrothed by intercourse and without a prior marriage agreement. And there are those who say he would flog a man who betrothed by intercourse even if he did so with a prior marriage agreement, due to the immorality involved, as he must invite witnesses to observe the act. § The Sages taught: How is levirate betrothal performed? He gives her money or the equivalent value of money and declares: You are hereby betrothed to me. The Gemara asks: And with a document, how does he betroth her? The Gemara is puzzled by this question: With a document, how does he betroth her? It is as we have said by the halakhot of a regular document of betrothal: If he wrote to her on paper or on earthenware, even though it is not worth a peruta, the words: You are hereby betrothed to me, it is effective. As a document is not effective as a means of betrothal due to its monetary value but rather due to the words it contains, there is no requirement that it be of a minimum value. However, because the halakhot of betrothal by a document were already taught, the Gemara is puzzled as to the nature of this question. Abaye said that this is what the baraita is saying: With regard to the document of a marriage contract for levirate marriage, how is it written? Abaye understands that the question did not refer to the document of betrothal but rather to the marriage contract of a levirate marriage. The Gemara explains that he writes to her: I, so-and-so, son of so-and-so, have accepted so-and-so, my yevama upon me, to feed and maintain her in a fitting manner, provided that her marriage contract will still be payable from the property of her first husband and not from the property of the yavam. The Gemara adds: But if the first husband does not have property, the Sages instituted for her that she should receive her marriage contract from the second husband, i.e., the yavam, for the same reason that they instituted the marriage contract in the first place: So that she will not be demeaned in his eyes such that he will easily divorce her. If he will suffer no financial penalty, he is likely to divorce over the smallest argument. § Abaye inquired of Rabba: If a yavam gave his yevama a bill of divorce, and said the following formula: You are hereby divorced from me but you are not permitted to any other man, what is the status of such a bill of divorce? Is the bill of divorce of a yevama a bill of divorce based on rabbinic law and therefore subject to the halakhot of a regular bill of divorce; and consequently, a bill of divorce that is effective for a married woman is also effective for a yevama, and a bill of divorce that is not effective for a married woman is not effective for a yevama? Since this type of a divorce is invalid in the case of a married woman, it is similarly ineffective in the case of a yevama. Or perhaps the Sages were concerned that perhaps people will come to confuse this bill of divorce with an unqualified bill of divorce given by a yavam and they therefore decreed that it should affect the levirate bond, preventing the yavam from marrying the yevama. Rabba said to him: We are concerned that perhaps they will come to confuse this bill of divorce with a regular bill of divorce, and it therefore disqualifies a yevama. Rabba bar Ḥanan strongly objects to this: However, if that is so, that we are stringent with the bill of divorce of a yevama out of concern that people might confuse the two types of bills of divorce, if he gives her a mere piece of paper, which does not mention divorce, so too will it disqualify her? He said to him: There it is different, as a mere piece of paper has no effect on any other woman, for it does not disqualify her for marrying into the priesthood. If a husband gives his wife a piece of paper that contains nothing about divorce, even if he says: This is a bill of divorce, his action is of no consequence, not even to forbid her to a priest. Here, however, a bill of divorce of this kind at least disqualifies a woman from marrying into the priesthood. As it is taught in a baraita: “They shall not take a woman that is a harlot, or profaned; and a woman divorced from her husband they shall not take, as he is holy to his God” (Leviticus 21:7). This verse lists the women whom a priest is prohibited from marrying. From this verse it can be inferred: Even if she was only divorced from her husband who said when giving her a bill of divorce: You are divorced from me, but did not permit her to other men, even such a woman they may not take in marriage. Although a bill of divorce of this kind does not permit the woman to others, it does suffice to prohibit her from marrying a priest. And this is what is referred to as the trace of a bill of divorce, which disqualifies a woman from marrying into the priesthood. Since this bill of divorce is valid to a certain extent, it also disqualifies a yevama. Rami bar Ḥama said: They said that if one said to a scribe [lavlar]: Write a bill of divorce for my betrothed now, such that when I marry her I will divorce her with the bill of divorce, if he indeed gave her this bill of divorce after their marriage it is a valid bill of divorce. Why? Because it is already in his power to divorce her while she is betrothed to him, and therefore the bill of divorce written during their betrothal is valid.

ביאור:

האמורא רב היה מנגיד [ מלקה] את כל מאן [מי] שהיה מקדש אשה בביאה. שאף שזו אחת מדרכי הקנין באשה, כיון שהיא דרך פריצות - היה מלקה את מי שעושה כן.

וכן היה מלקה את כל מאן [מי] שהיה מקדש אשה בשוקא [בשוק] ולא בבית, שאף היא דרך פריצות.

וכן היה מלקה את מאן [מי] שהיה מקדש אשה בלא שדוכי [שידוכים] לפני כן, שאף זה נחשב כפריצות......

...ואיכא דאמרי [ויש שאומרים] שהיה מלקה למקדש בביאה אפילו בשדוכי נמי [בשידוכים גם כן] משום פריצותא [הפריצות] שיש בדבר, שהוא מזמין עדים לביאה.

רבי יוחנן- גדול אמוראי ארץ ישראל. ראש ישיבת טבריה (המאה השלישית)

רב (רבי אבא בר איבו) – דור ראשון לאמוראי בבל. ייסד את ישיבת סורא. בצעירותו למד אצל רבי יהודה הנשיא בא"י. (אחיינו של רבי חייא).

איכא דאמרי: יש האומרים - פתיחה להבאת גירסה אחרת של דברי האמורא

אבן העזר ל״ג:א׳

בְּבִיאָה כֵּיצַד, אָמַר לָהּ בִּפְנֵי שְׁנֵי עֵדִים: ''הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי בְּבִיאָה זוֹ'',

וְנִתְיַחֵד עִמָּהּ בִּפְנֵיהֶם, הֲרֵי זוֹ מְקֻדֶּשֶׁת

(אַף עַל גַּב דְּחֻצְפָּא הִיא)....

וְאֵין דִּינָהּ אֶלָּא כִּמְאֹרָסָה, וְלֹא כִּנְשׂוּאָה.

Shulchan Arukh, Even HaEzer 33:1

With sex, how? He said to her before two witnesses: "Behold you are married to me with this sex," and he secludes himself with her before two witnesses, behold she is betrothed (even though she is bold.) Either he has sex with her in the normative fashion or he has sex with her in the non-normative fashion. And her status is only as someone who is engaged, not like a married woman. Ram"a: There are those who say that it is precisely when he has sex with her in the house of his father-in-law, but if he brought her into his own house and had sex with her, or betrothed her already and had sex with her, she is considered like a married woman. There are those who say that a single man who has sex with a single woman before witnesses, we are considered lest he intends [this act] for the sake of marriage, and the presumption is that a man does not have promiscuous sex. But if he is already presumed towards promiscuity, or that he has another wife, we are not concerned. There are those who are lenient in this matter.