The gemara says that since the second man acted improperly by trying to be mekadesh this woman when she was under the chupah, we treat his as he was treated and uproot the kiddushin. Rashi assumes that whenever the chachamim uproot the condition, it is because one who is mekadesh does so "al da'as chachamim", as he says at the time of kiddushin "k'das moshe v'yisroel" (to the exclusion of Tosafos here and in Baba Basra who understand that when one acts improperly, and is not mekadesh al da'as chachamim, they use their power of uprooting a d'oraysa to uproot the marriage). Based on this approach, when one is mekadesh a woman, it is the equivalent of making a condition or stipulation, that the kiddushin should be based on the da'as of chachamim (it is not necessary to follow dinei tenaim such as tnai kaful.... because it is understood that one wishes to make such a condition). Why then does Rashi have to explain the statement of the gemara "Teinach d'kadesh b'kaspa" to mean that the power the chachamim use to uproot the kiddushin is hefker beis din, even without that power they should be able to uproot the kiddushin since it is as if he stipulated that the kiddushin should only be binding if the chachamim agree to it? Had Rashi explained that we need hefker beis din to explain why she can keep the money and not have to return it, then it would make sense. But, Rashi seems to explains that we need hefker beis din to prevent the kiddushin from being binding - WHY?
No comments:
Post a Comment