The Weekly Daf

For the week ending 15 November 2008 / 17 Heshvan 5769

Kiddushin 42 - 48

by Rabbi Mendel Weinbach zt'l
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No Agent for Sinning

If a man appoints an agent to perform an act of kiddushin (marriage) or gerushin (divorce) on his behalf, we consider the agent's action as that of his sender. The concept of agency extends as well to transactions and even to certain mitzvot.

When it comes to committing sin, however, the general rule is that "one cannot be an agent for sin." Rather, it is the agent, and not his sender, who bears responsibility for the sin because we challenge him with the charge "should one listen to the words of the master (Hashem) or the words of the disciple (the sender)?"

One of the two exceptions to this rule is the penalty which the Torah imposed on a thief who slaughtered the ox or sheep that he stole. The usual penalty of double compensation for a stolen item is increased to four for a sheep and five for an ox if the thief magnified his guilt by selling or slaughtering the stolen animal. If this slaughtering was done by the thief's agent, the thief nevertheless bears responsibility for his act and must pay the greater penalty.

What if the thief slaughtered the animal on Shabbat?

The gemara (Mesechta Bava Kama 74b) states that a thief who slaughters a stolen ox on Shabbat is exempt from the extra monetary penalty because he has simultaneously committed a sin carrying the death penalty and we apply only the more severe penalty.

But what if his agent slaughtered the animal on Shabbat for him?

In such a case, the thief has not committed the sin of Shabbat violation carrying a death penalty, so he is held responsible for the slaughtering which he commissioned and must pay the extra penalty.

In codifying this last ruling, Rambam (Laws of theft 3:6) writes that the agent was commissioned to slaughter the animal and the agent did so on Shabbat. Mishneh Lamelech, one the leading commentaries on Rambam, infers from his language that the thief is only held responsible if he did not commission that the animal be slaughtered specifically on Shabbat. The Shabbat violation then does not relate to him and has no impact on his financial obligation. Should the thief, however, commission the agent to slaughter on Shabbat specifically, we can no longer consider the agent as acting on the thief's behalf because of the aforementioned general rule that one cannot be an agent where sin is involved. In such a case he will not be considered an agent even in regard to the slaughtering penalty.

  • Kiddushin 43a

For Better or Worse

A man proposes kiddushin to a woman and informs her that he is giving her a silver coin which she subsequently discovers is really gold. Or he informs her that he is a poor man and she subsequently discovers that he is wealthy.

Rabbi Shimon's position is that if the opposite were the case and she received less than she was promised, the kiddushin would be invalid. But where she received a more precious metal or a more prosperous husband, we do not consider her to have been duped to her detriment and the kiddushin is valid.

The other sages, however, disagree. They contend that any deviation from his presentation renders the kiddushin invalid. Their approach, which is the one established as halacha, begs an explanation. Why should a woman be disappointed in receiving gold instead of silver, or a rich husband instead of a poor one?

In regard to the first question of precious metals, Tosefot already points out that the woman may have an ornament of silver which requires some silver to complete it, and she may therefore prefer silver to gold despite the higher commercial value of the latter. From the gemara it appears that even Rabbi Shimon considers gold to silver to be a deviation for this reason.

But what about wealth for poverty?

Rambam, in his commentary on our mishna, offers a general explanation for the position of the Sages by suggesting that perhaps she prefers the lesser thing or situation for some reason. Since he does not speculate as to what those reasons might be, he leaves us to use our imagination as to why a woman might rather marry a poor man than a rich one.

On a purely human level, she might be wary of a radical change in her lifestyle as a result of "marrying money." On a religious level, the great teachers of ethics have pointed out that wealth, and the pride which usually accompanies it, is a greater danger to spiritual security than poverty, so that a woman who consented to marry a poor man may not want a rich one.

  • Kiddushin 48b

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