"“Kalta Kinyano” in Kiddushin (Column 523)

In the previous column I tried to define the concept of a loan, and I ended by noting that to explain the distinction between it and purchase price I would need to analyze the concept of money. I decided to leave that for the next column, because I happened to encounter a point that connects the column on loans with the one before it, which dealt with the metaphysics underlying halakhah.

Framework of the discussion

In column 521 I discussed the rule of “kalta kinyano,” and from within it, kiddushin that take effect after 30 days. We saw there that if a person performs a kinyan (act of acquisition) and wants the legal effect to take place after a time, that is impossible due to something akin to a principle of causality: “kalta kinyano”—the act of acquisition has run its course. If the kinyan was already performed and is no longer “in the world,” it cannot generate a delayed legal effect. I mentioned there that the Ran writes that if the act of kinyan or kiddushin was with money, then one can, in fact, apply a delayed effect and the rule of “kalta kinyano” does not apply. This is because giving the money creates a lien (shi‘bud) that remains until the stage at which the legal effect is applied. See more on this below.

In column 522 I discussed the question of what a loan is, and I distinguished it from purchase price (dmei mekach). The claim was that in a loan, the lender has nothing “sitting with” the borrower. There is only a personal obligation (a mitzvah) on the borrower toward him, which the Torah translates into a lien. By contrast, in store credit, wages owed, and the like—i.e., when a payment is due in exchange for an item or a service provided—there is, at the buyer’s side, a sum of money belonging to the seller, even if not in specific coins. I explained that this is a kind of deposit (pikadon) of non-designated coins. We saw there that in the first case, a debt arising from a loan, one cannot effect kiddushin or acquisition with that money (“one who betroths with a loan”—she is not betrothed), since there is nothing with which to effect the kiddushin. But in the second case, a debt of purchase price, one can effect kiddushin or acquire, because there is something with which to do so. Although the coins are not designated, I can effect kiddushin or acquire with my sum of money even if it is not specific (more on this in the next column).

I now happened upon a sugya that connects the subjects of those two columns. In the sugya that discusses betrothing a woman “after 30 days” (which was the basis for the “kalta kinyano” issue), the question arises: how are we to relate to the money given there? This brings us to the distinction between purchase price, a loan, and a deposit. The question is whether that money given to the woman has the status of a loan or of a deposit. It turns out that this distinction has significance and ramifications regarding the rule of “kalta kinyano.” I will already note that this is not surprising, for the distinction between purchase price and a loan is a kind of metaphysical distinction (what, in fact, is present with one party from the other), and not only one of rights and legal norms. The latter (whether one can effect kiddushin or acquire) are merely consequences of the metaphysical state (whether there is a non-designated deposit there or not). In a legal system not based on metaphysics, there would be no reason to distinguish between purchase price and a loan: as long as I owe you money, a debt is a debt. The distinction is based on an as-if “factual” conception of the difference between the two situations. It is therefore no wonder that the rule of “kalta kinyano,” which itself is grounded in a metaphysical conception, will operate differently in different metaphysical states.

To see this, we must return to the sugya of kiddushin “after 30 days” mentioned in column 521. I noted there the words of the Ran, who distinguishes between kiddushei kesef (money), and kiddushei shtar (document) and bi’ah (intercourse). I will begin with these.

Back to our sugya: kiddushin after 30 days

The rule of “kalta kinyano” says that if I performed an act of kinyan, it cannot generate a delayed legal effect; in other words, it cannot operate after a time. This raises the question of how the Mishnah in Kiddushin 59b can say that a man can betroth a woman “after 30 days.” If he says “from now and after 30,” we saw that the effect begins to form immediately with the act of betrothal and is completed after 30 days. But when he does not say “from now,” the effect is supposed to arise ex nihilo after 30 days—and that would seem impossible, for “kalta kinyano.”

The Ran in Nedarim, as cited in that column, deals with “kalta kinyano.” At the end of his words there he adds a remark that returns the discussion to kiddushin after 30 days:

However, when we say that wherever he did not say “from now” he did not acquire—that is specifically where he acquired by chazakah; but where he acquired by money, even if he did not say “from now,” he acquired, because the lien of the money still exists; and it is as if he said to the woman, “Be betrothed to me after thirty days”—she is betrothed even though the coins were consumed, since these coins are neither like a loan nor like a deposit, as stated in the chapter “Ha-Omer” in Kiddushin (59).

The Ran explains that in the case of kiddushin after 30 days we do not say “kalta kinyano,” because in a money-based kinyan the lien of the money still exists (even if the coins themselves are no longer in the world). Already here I will note that according to him this cannot work with kiddushei bi’ah or shtar, since there no lien is created at the time of kiddushin, and therefore after 30 days “kalta kinyano.”

In the previous column we saw a dispute between the Rambam and the Ra’avad (Mishneh Torah, Sales 2:9) about an animal acquired by meshichah (pulling), where they want the effect to take place after a time, and at that time the animal is in the buyer’s possession. Do we still say “kalta kinyano,” or does the animal’s being with him allow for a delayed effect:

One who says to his fellow, “Pull this cow but do not acquire it until after thirty days,” and he pulled—it is not acquired. But if he said to him, “Acquire from now and after thirty days,” he acquires, even if it was standing in the marsh on the thirtieth day; for this is as if he conveyed it “from now on condition,” the condition was fulfilled, and the acquisition was effected; and anyone who says “on condition” is as one who says “from now.”

/Gloss of the Ra’avad/ “On the thirtieth day,” etc. In my opinion, if the cow is in the buyer’s domain on day thirty-one, it is acquired to him—just as [in the case of] “Be betrothed to me after thirty days,” the betrothal takes effect on that day.

Note that the Ra’avad compares this to our kiddushin sugya. It seems he learned that betrothal “after 30” takes hold because the woman is still “standing in his domain” after 30—just as the animal stands in the buyer’s domain after 30—and then he can acquire it by the earlier meshichah. If so, he can also betroth the woman by the earlier act of kiddushin because she is still in the betrother’s “domain” (in what sense is she in his domain? Not clear). In any case, this explanation does not resemble the Ran’s, for according to the Ra’avad it seems this can also work with kiddushei bi’ah and shtar, not only with money. If the woman is still in his domain after 30, there is no “kalta kinyano,” and therefore even with bi’ah or shtar she is betrothed. But according to the Ran, the explanation is different. He says that giving the money creates a debt, which is different from bi’ah or shtar in kiddushin, and from chazakah or meshichah in a sale; and therefore, according to him, only with money can one betroth “after 30.” This is thus a different rationale from that of the Ra’avad.

In any case, what does the Ran mean when he says that “the lien of the money still exists”? And what does he mean by saying that the money in the woman’s hands is neither a loan nor a deposit? (No wonder this reminds us of column 522.) He writes that he learned this from the Gemara in Kiddushin there regarding “the coins were consumed.” To understand this we will now enter that passage.

What if the coins were consumed?

In Kiddushin 59a the Gemara cites a halakhah agreed upon by Rav and Shmuel:

Similarly, one who says to a woman, “Be betrothed to me …” If another came and betrothed her within the thirty days, what is the law? Rav and Shmuel both say: She is [ultimately] betrothed [to the first one], even if the coins were consumed. What is the reason? These coins are neither like a loan nor like a deposit.

The Gemara deals with a case of betrothal “after 30.” The Mishnah said that if another man came and betrothed her she is betrothed to the second. That could be understood to mean that the first betrothal dissipated and she would not be betrothed to him at all in the future. Therefore the Gemara here anticipates and says that Rav and Shmuel agree she is betrothed to the first—i.e., there is no “kalta kinyano.” Moreover, they add that this is true even if the coins were consumed, meaning the betrothal money is no longer in the world.

One might have said that the kiddushin can take effect if the betrothal coins are still in the world, for then there would be no “kalta kinyano” (as in the case where the item is still in one’s domain at the end of 30 days, per the Ra’avad). If so, we might view the kiddushin as being performed by those coins at the end of the period: they sit with her as a deposit, and when the thirtieth day arrives they pass to her and she is betrothed with them. Therefore Rav and Shmuel add that the law is true even if the coins are no longer in existence, since the coins here are neither a loan nor a deposit.

It is important to understand the Gemara’s rationale. It explains the validity of the delayed kiddushin by the fact that these coins are neither a loan nor a deposit. Its intention is that if these coins were a loan with her, then betrothing her with them would not work—because that would be kiddushin with a loan. If they were a deposit with her, then of course the kiddushin would work, because the deposited coins are the very coins of kiddushin that are transferred to her after 30; but that would only help if the deposit still exists at the end of the 30 days. Since the deposited coins are the kiddushin coins, if they do not exist one cannot betroth with them. The Gemara therefore explains that in our case the money is neither a loan nor a deposit, and therefore the kiddushin takes effect after 30 days even if the coins were consumed.

We must still understand what this intermediate status is and how it leads to the ruling that the kiddushin takes effect even when the coins are no longer in the world.

A first explanation

The Gemara goes on to explain this status as follows:

They are not like a deposit—because a deposit is consumed in the owner’s domain, whereas these are consumed in her domain. Nor are they like a loan—because a loan is given for spending, whereas these were given to her as betrothal money.

That is, the money in her hand belongs to her and not to the betrother—so it is not a deposit; but the money was not given for spending like a loan, rather it was given to her as betrothal money—so it is not like a loan either. What is the meaning of this intermediate status? And how do the halakhic consequences the Gemara attaches to it follow?

It is natural to say that the status of this money is like what we saw regarding purchase price. This means that there is, at the woman’s side, money that is not designated as specific coins—i.e., not necessarily the very coins given to her for kiddushin, but the amount they represent—and that amount belongs to the husband and is not given for spending. True, there are no specific coins she must return to him (so it is not a standard deposit), but she owes him a certain sum of money, and therefore one can betroth with it. From here it is also clear why it does not matter if the coins were consumed, since what is with the woman is not those particular coins but the amount they represented. It is not dependent on the physical coins she received. This is precisely the state we saw regarding purchase price at the buyer’s side.

What does this mean? When the betrother gave her the money, a debt toward him was essentially created, for the money was not a gift but given for the sake of kiddushin. As long as the kiddushin has not been executed, there is money that is not entirely hers. True, she may spend the coins because it is not a concrete deposit, but it is also not entirely hers. The specific coins are hers, but a debt remains that she owes the betrother in their stead (the lien the money created). At the end of 30 days he can betroth her with that lien; in so doing he gives her a sum of money (in non-designated coins), and therefore this is not like a loan. Of course, even if the coins were consumed, the lien remains, and this does not impede the kiddushin. The kiddushin money is that lien created upon her toward him, and therefore it is neither a loan nor a deposit (an envelope of cash left with her for safekeeping that must be returned in specie). As noted, this is similar to a debt arising from purchase price: there too, the transfer of the merchandise creates a lien of the buyer toward the seller—i.e., the seller has a sum (in non-designated coins) at the buyer’s side—and, as we saw, with that one can betroth or acquire.

We thus find that the Gemara’s distinction—especially as the Ran explains it—essentially says what we saw in column 522: halakhah recognizes a type of debt different from a loan, such as purchase price or wages owed; with such a debt one can effect kiddushin and acquisitions because it is a sum belonging to the creditor that is “with” the debtor. Note that in such a case kiddushin after 30 days takes effect because the act is performed at the end of the 30 days. The initial giving of money merely created the debt; but the kiddushin themselves are performed by transferring that debt to her (the debt is the kiddushin money), and that happens at the end of the 30 days. Therefore, clearly, “kalta kinyano” does not apply here, because in this case the legal effect arises immediately after the act (i.e., at the end of the 30 days).

Two formulations for understanding Rav and Shmuel

Above we saw one formulation: the kiddushin money is the debt or lien, not the coins initially given; therefore there is no “kalta kinyano” at all, since there is no gap between the time of the act and the time the legal effect arises. This is how the Ran seems to read it.

But it can also be understood differently. One can say that the kiddushin are indeed effected by the transfer of the coins at the beginning of the process (i.e., the kiddushin money is the coins, not the debt or lien), but there is no defect of “kalta kinyano” because the lien created by giving the money still exists (just as when the object remains in a person’s possession he can acquire by meshichah even after 30 days). On the thirtieth day the transfer of the coins to the woman is completed (by erasing the debt), and then she is betrothed by the initial transfer. According to this view, the kiddushin are effected by the initial money, and the lien it created merely preserves continuity so that the initial act is not invalidated by “kalta kinyano.” It seems this is how the Ra’avad understood kiddushin after 30 days and the Gemara’s explanation.

The Ra’avad apparently holds that the debt only bridges the gap between the act and the legal effect and prevents “kalta kinyano.” Therefore he writes that if there is something else that bridges the gap (the continued existence of the woman, or the merchandise being acquired), that is also sufficient. But according to the view that with kiddushei kesef the kiddushin are done at the end by transferring the debt, it certainly cannot be said in the case of shtar and bi’ah; and certainly there would be no reason to analogize it to an animal acquired by meshichah that is still with me after 30 days, as the Ra’avad did. This, it seems, was the Ran’s position.

There are further ramifications of the claim that the money has a status that is neither loan nor deposit, and—as we will see in a moment—there will be a difference between the two formulations presented here. We will see this now via a dispute among the poskim regarding a case where the betrother retracts: must she return the money? The dispute is brought and discussed in the Avnei Miluim, and we will address it shortly. Before that, I will remark about the meaning of the debt created by giving the money.

An explanation of the lien’s emergence: “money that ‘returns’”

The Mishnah in Bava Kama 70a states:

One who stole and sold on Shabbat … pays four- or five-fold restitution.

And the Gemara (70b) challenges the Mishnah from a baraita that seems to say the opposite:

But it was taught: “He is exempt”!

Rami bar Ḥama resolves:

Rami bar Ḥama said: That [baraita] which teaches “exempt” is where he says to him, “Cut (for me) a fig from my fig tree and acquire for me your thefts [i.e., I will acquire your stolen item in exchange].”

Rami bar Ḥama explains that the baraita exempts specifically when the sale was performed in a manner that entails Shabbat desecration—e.g., the kinyan was created by cutting figs (which is prohibited on Shabbat; the melakhah of reaping) in exchange for the stolen item being sold. But the Gemara adds and asks that in such a case the sale is not valid at all:

They said: Since, when he is sued in court, we do not tell him, “Go pay,” for he is liable to [the severer penalty against] himself [i.e., capital punishment], then the sale is not a sale either!

The Gemara then reframes the baraita. For our purposes, what matters is the question: why does the Gemara assume that in such a case the sale is invalid? The Gemara says that if the owner of the fig (the buyer) were to sue the cutter (the seller), we could not obligate the cutter to pay for the figs, because the act of cutting entailed Shabbat desecration, and a person is not liable for both death and monetary payment for one act—due to “kim lei bederabba minei.”

But this is puzzling. “Kim lei bederabba minei” concerns exemption from monetary liability or punishment; but here we are not dealing with penalizing someone who damaged or stole figs and ate them. Rather, we are dealing with someone who cut figs, with the owner’s permission, as consideration for a stolen item he is selling him. Why should it matter that he did so in the course of Shabbat desecration?

To explain this, R. Shimon Shkop (“Gidrei Kinyan Kesef,” §2) innovates a new way to understand a kinyan by money. His words are based on the view of the Sema (Choshen Mishpat 190:1) that the role of money in a kinyan is to provide the value and consideration for the acquired object (as opposed to the Taz there, who sees the giving of money as merely a symbolic acquisitive act). On this basis R. Shimon explains how the kinyan operates:

Since kinyan kesef is that the giver first gives the money, it must be that the idea of kinyan kesef is that by receiving the money the recipient becomes obligated in return; and thus, when he intends to convey the land in exchange for the money, the money is considered payment for the land he acquired, and the land is payment for the money; and in this, kinyan kesef is not like kinyan chazakah, for with chazakah it is the opposite: he is first obligated for the land he acquired.

R. Shimon explains that kinyan kesef works by creating a debt and its repayment. That is, the buyer gives money to the seller and thereby creates a debt of the seller to him, which is repaid with the object being acquired. Giving the money creates a debt at the seller’s side, and the debt is erased upon delivering the merchandise. In light of what we saw above, there is also room to say that the debt is the consideration for the merchandise, not the money, and the transfer of money merely creates the debt. In any event, we now understand why the kinyan cannot take effect when no monetary liability arises on the fig-cutter (because of “kim lei”), as R. Shimon continues:

Accordingly, the Gemara’s words are well understood: since upon receiving the money no liability at all devolved upon the recipient in return for the money he received, we cannot say that the money is payment for the object he conveys to him; therefore no kinyan at all can apply.

If the owner of the fig cannot claim payment for it from the cutter (because of “kim lei bederabba minei”), then the transfer of the fig cannot effect a kinyan kesef. For money to be able to effect a kinyan it must be “money that returns”—money that gives rise to a debt. From here on there are two ways to understand how the kinyan is effected: either the kinyan money is the debt, or the kinyan money is the fig, but only money that creates a debt can effect a kinyan. This, of course, parallels the two ways we saw above to explain why the lien created in kiddushei kesef prevents “kalta kinyano.”

In our case there is no time gap between the act and the legal effect, and we still see that money that effects a kinyan (or kiddushin) must be “money that returns.” This explains what we saw in the sugya of kiddushin after 30 days. There too, the money transferred initially created a debt, and only because of that can it betroth the woman or acquire the field—whether the kiddushin/kinyan money is the debt, or the original money (and the debt merely bridges the time gap and prevents “kalta kinyano”).[1]

Halakhic ruling

In the Shulchan Aruch the halakhah that one can betroth “after 30 days” is brought (Even ha-Ezer 40:1):

One who says to a woman: “Be betrothed to me with this perutah after thirty days”—even if the money was consumed within the thirty days, she is betrothed after thirty days.

He speaks explicitly about kiddushei kesef (though today we do not betroth in other ways, so perhaps he is just speaking in the present).

The Rema there quotes the Ran:

And some say that if he betrothed with a document (shtar) and it is not extant after thirty days—rather it was torn or lost within the thirty—she is not betrothed. (Ran, Perek Ha-Omer)

It seems from here that with shtar too one can betroth after 30 days, but there the shtar must still exist. From this we can infer that with bi’ah, according to all opinions, one cannot betroth after 30 days. In any case, with shtar it is clear that it does not create a lien; therefore the shtar itself must remain in existence. Thus, there is a triple gradation for kiddushin after 30: with bi’ah one cannot betroth at all; with shtar one can betroth if the shtar exists after 30; and with money one can betroth even if the coins were consumed.

From the law regarding shtar one can infer that the kiddushin are effected by the first act—for with shtar there is no way to say that the act of kiddushin is done at the end. No lien is created by conveying the shtar. This would seem to mean that the shtar’s remaining in existence merely bridges the time gap and preserves continuity (as in the purchase of an animal that remains in one’s domain after 30). If so, even in kiddushei kesef it would appear that the kiddushin are effected by the initial money, and the debt merely preserves continuity and prevents the defect of “kalta kinyano.” But this can be rebutted: even with shtar the kiddushin are effected by handing the shtar to the woman; therefore, as long as the shtar exists in the world, one could say that it sits with her as a deposit and is transferred to her at the end. Moreover, we saw that according to the Ra’avad, what bridges the gap is the woman’s existence, not the existence of the kiddushin object—and that is certainly no different between money, shtar, and bi’ah.

In Beit Shmuel ad loc. §3 we read:

“If he betrothed with a shtar,” etc. The reason is that, granted, if he betroths with money it is as if the money is extant, since she must return it; but with a shtar, if it was lost or torn, nothing remains after thirty days; and the same would apply if the shtar exists but is not in her possession, e.g., it is lying in the public domain. And if the paper of the shtar is itself worth a perutah, it is like kiddushei kesef, for his intent was also on the paper (Ran; see EH 28).

According to him, the same holds if the shtar is with someone else. This would seem to prove that there is no transfer of the shtar at the end, since it is not in her possession then. This proves that the initial handing over of the shtar is the kiddushin, and the requirement that it exist is only to prevent “kalta kinyano.”

It is not clear, however, what the other unnamed opinions to which the Shulchan Aruch alludes think. When he writes “some say” that if the shtar exists the kiddushin are valid—is that to exclude a view that they are valid even without the shtar’s existence, or to exclude a view that with shtar one cannot betroth after 30 at all? This depends on whether we treat his statement about money as merely speaking in the present or as truly limiting the law to kiddushei kesef.

We now return to the ramifications of the two conceptions we presented regarding why kiddushin after 30 do not suffer from “kalta kinyano.”

The Avnei Miluim

In Avnei Miluim 40:1 we read:

“Even if the coins were consumed.” At the beginning of Perek Ha-Omer (59a): “And these coins are neither like a loan nor like a deposit; not like a loan, for a loan is given for spending; and not like a deposit, for these coins are consumed in her domain.” And the Ran (Rif Nedarim 24a) writes: “It seems that if he retracts she is not obligated to return the money; for if she were, with what would she be betrothed? They would not be hers until the end of thirty days, and the coins would have been consumed in the meantime.” See there. And in the ḥiddushim of Maharit he concludes that the money is in the betrother’s possession until thirty days, and if she retracts within the thirty she must return the money; see there.

Here a dispute is brought regarding the money if the betrother retracts and does not want to betroth. The Ran writes that she is not obligated to return it; the Maharit writes that she is. The rationales are unclear. The Maharit seems to hold that the money remains in the betrother’s possession until thirty days (otherwise with what is she betrothed?), implying that the kiddushin are effected at the end by the kiddushin money. The money itself need not exist, so it seems his intent is to the debt or lien created by it. Precisely for that reason, if the betrother retracts she must repay the debt created.

But in the Ran cited here there are two variants regarding the money—“they are not acquired to her until the end of thirty days.” He seems to mean that if we were to say she must return it, that would mean the coins were not acquired by her; then, if the coins were consumed, he would have nothing with which to betroth her, for “kalta kinyano.” This proves that there is no obligation upon her to return them, which means the coins are acquired to her from the outset; and if he retracts, that is his problem, and she is not obligated to return the money. It seems she also has no monetary debt toward him; otherwise she would have to return the money as repayment. That is, he understands that she is betrothed by the coins, and the debt created in their stead is not a monetary debt to pay him money, but rather an obligation to become betrothed to him in exchange for the coins. That obligation bridges the gap between the time the act of kiddushin was performed and the time they take effect. But if he retracts and she is willing to be betrothed to him, then she is fulfilling her obligation; and if he retracts, she has no obligation to pay him anything.

Thus, both the Ran and the Maharit hold that the kiddushin are effected at the end of the 30 days; the dispute is only whether the debt is an actual monetary debt or merely an obligation to become betrothed. The practical difference is whether, when he retracts, she must return the money. This raises the question of what the Ra’avad—who holds that the kiddushin are effected by the money given at the beginning and there is no “kalta kinyano” because the woman remains “in his domain”—would say here. It seems that according to him she would not have to return the money, for she received it for kiddushin and it is now hers, and in exchange she stands “at his disposal” to be betrothed. If he does not wish to proceed, that is his issue.

Here the Ran follows his own approach, but on this point the Ra’avad would likely agree with him. Note also that the Ran cited by the Rema holds that with shtar too one can betroth after 30 days—at least if the shtar still exists. It seems he means that the kiddushin are not effected by handing over the shtar, but at the end of the period. Therefore, at the end the shtar must be in the woman’s possession—contrary to the Beit Shmuel.

Notes on the continuation of the Avnei Miluim

The Avnei Miluim continues:

And in the Ritva, Kiddushin 6a, regarding betrothing with a loan: “Some are troubled: what is the difference between betrothing with a loan—which does not betroth—and one who says to a woman, ‘Be betrothed to me after thirty days with this money,’ that if she does not retract within thirty she is betrothed after thirty with this very money—even though the coins were consumed? There, until thirty days these coins are in her possession as a loan, and even though they are not in existence at the time the kiddushin take effect, she is betrothed with them. One can say that there it is different: since they were given for kiddushin, it is as if he explicitly stipulated that she be betrothed to him with the benefit [of the loan] and be exempted from it; for certainly that is why he advanced them to her and gave her permission to enjoy them and be betrothed with that benefit. But here, where they came to her as a regular loan and are entirely hers, he now comes to betroth her with her own money—she is not betrothed.” Thus far. And he writes in Perek Ha-Omer: “Rav and Shmuel both say, even if the coins were consumed. What is the reason that for a get we require the document to be extant, but for kiddushin we do not? Because for the woman, some benefit inheres in them: from the moment he gave them to her, she already benefited from them, since she is permitted to do with them as she wishes; but with a get, which is not a matter of benefit but a document that releases her, if it is not extant at the time she is divorced, it is nothing.”

It appears from the Ritva that the reason “consumed coins” work is that he betroths her with that benefit she enjoyed—namely, that she was permitted to do with them as she wished and he gave her permission to spend them. This is difficult: granted that at the time of giving she enjoys a benefit, but at the time of kiddushin that benefit has already “expired.” One who says, “Pull this cow but acquire it only after thirty days,” does not acquire—because the meshichah has already expired; and so too here, the benefit she enjoyed at the time of giving has “expired” by the time of kiddushin. It is possible, according to what the Ran writes in Perek Ha-Kotev (Rif, Ketubot 45b) regarding “Pull this cow … after thirty days,” that he concludes: when the cow stands in a simta (semi-private alley) after thirty, the earlier meshichah helps from the time he said, “This cow shall be acquired to you”—even though the acquisition is only after thirty; but if the cow stands in the public domain after thirty, it does not help, and the earlier meshichah has “expired,” since even his own property leaves his domain when lying in the public domain; but in a simta, which is not leaving his domain, the earlier meshichah helps, since it is still in his domain. If so, here too she is betrothed with that earlier benefit—namely, that he gave her permission to do as she wishes—even though after thirty that benefit has already expired; since that benefit remains with her in that she is exempt from paying him after thirty, it is no worse than a simta, since it did not leave her domain. Here, too, that benefit is still in her “domain,” in that she is exempt from repaying him. And even though with that alone she would not be betrothed (for one who betroths with a loan does not betroth), there too—if the animal is standing in a simta and he did not pull—she does not acquire; and the earlier meshichah helps since it did not leave his domain. So too here the earlier benefit helps, since something of it remains in that she is exempted.

He explains in the Ritva that the kiddushin work because it is like meshichah of a cow that remains in one’s domain—i.e., like the Ra’avad’s view we saw. It follows from his words that the cow must be in his domain; from this it would follow that with kiddushei shtar after 30, they are effective only if the shtar is in his domain (and not in someone else’s possession), contrary to the Beit Shmuel. This fits the first conception, according to which the kiddushin at the end are with the lien and not with the money initially given. If the shtar is in her domain on day 30, then one can say she is betrothed with the shtar at the end (and not at the beginning). Thus the Ran is consistent with himself, and the Ritva follows the Ra’avad’s approach.

He now brings the Rashba:

And the Rashba, in his ḥiddushim at the beginning of Ha-Omer, writes: “Even though the coins were consumed—and the reason is that since they were initially given for kiddushin, even though at the moment they are to take effect they are not in the world, nonetheless, since if the kinyan is not completed she must return them, we view them as if they are extant, and with that benefit she is betrothed—similar to becoming betrothed with the benefit of loan-forgiveness. This is unlike an ordinary loan, for at the time the money was given it was not given for kiddushin but as a loan.” From his words it appears that after thirty she is betrothed with the benefit of being exempt, and even though with a loan she is not betrothed in such a case unless he says explicitly “with the benefit of forgiving the loan,” here, since they were given initially for kiddushin, since had he not intended kiddushin at the beginning he would not have given her the money at all and would not have loaned her at all—unlike a regular loan that already came to her as a loan.

He likens this to kiddushin with the benefit of loan-forgiveness, which the Gemara in Kiddushin 6 says is effective. But our Gemara says the coins are not a loan—so how is there benefit of loan-forgiveness here? It seems his intent is that this is like betrothing with purchase-price money. The benefit by which he betroths is the forgiveness of the debt; i.e., according to his view he betroths her with the debt at the end of the period—i.e., the second approach.[2]

The Avnei Miluim concludes:

And the halakhah is clear like the Ran: he gave her the money for kiddushin immediately and may not retract within thirty; but he gave it to her outright, with kiddushin in mind. If she retracts within the thirty, she must return the money. Thus, after thirty days it is not a loan at all; it is like the case (Kiddushin 48a) regarding wages, where according to the opinion that “wages are only at the end,” it is not a loan at all; rather he betroths her with the benefit that there will be no debt upon her at all. So too here: after thirty, since if she retracts there will be a loan upon her, but if she consents to the kiddushin there is no debt at all—since he gave it to her outright from the outset—there was never any deposit or debt with her at all.

He writes that the conclusion seems to follow the Ran and explains that if she retracts, the money is like a loan and she must return it. But if the betrother retracts, she is exempt. This is precisely the meaning of the claim that the lien created by the money is her obligation to become betrothed to him (and not a mere monetary debt). If she retracts, she has not fulfilled her obligation and the money was given to her in vain; therefore, even according to the Ran, she must return the money in that case.

[1] Note that in Afikei Yam I: end of §16 it is cited in the name of his brother-in-law (R. Ḥayyim Ozer) that in kiddushin the requirement of “money that returns” does not apply, since in kiddushin even the Sema agrees with the Taz that the money is kinyan money and not value-payment. Here matters do not seem to be as he says.

[2] Perhaps this also explains why one can betroth with the benefit of loan-forgiveness even though one cannot betroth with the loan itself. This is a very strange distinction made in Kiddushin 6b. According to my suggestion here, when he betroths with the benefit of loan-forgiveness, the loan is translated into a non-specific sum that he “has with her” (he tells her that instead of the mitzvah/obligation upon her to repay the loan, he converts it for her into a debt of non-concrete money), and he now cancels it—i.e., he gives her that sum and betroths her with it.