[Avodah] The Kiddushin "raid" in Lakewood

[kennethgmiller at juno.com]

R' David Riceman wrote:
> Transferring property requires intention (AhS HM 189:2).
> If I understand the original story correctly no one noticed
> the switch until after kiddushin, hence there was no
> intention to transfer property.

and Rav Elazar M. Teitz wrote:
> ... kinyanim don't happen automatically.  They require da'as
> of the parties, or at least of the makneh.  In this case,
> where there was no awareness of the need for a kinyan, there
> was no da'as for one.

Is it possible to compare this case to that of Orach Chayim 658:5?

The Mechaber there says that if Reuven handed his lulav to Shimon (on the first day of Sukkos, when ownership is required) without specifying whether it is a gift or a loan, that is good enough, and it is as if Reuven had said that it is a "gift on condition to return it", because that's what's needed for Shimon to be yotzay, so we are "omed" that that's what they had in mind.

I recall once hearing that the above works even if both Reuven and Shimon are unaware of the halacha requiring one to own the lulav: even in such a case, they both have kavana to do whatever it is that the halacha wants them to do.

If so, perhaps this can be extended to the current case: When she unwittingly gave her own ring to the chasan, it was with presumptive intent for whatever is necessary for that ring to effect a valid kiddushin, which would include transfer of ownership. (From what I see of this se'if in Hilchos Lulav, the kinyan has to be "on condition to return" because Reuven needs the lulav tomorrow, even if tomorrow is Chol Hamoed when ownership is not required. But since no one is getting married tomorrow, perhaps there's no such requirement for the ring, and it can just be a permanent gift.)

I am well aware that all the above is quite a stretch of the imagination. But the story as posted said that they did another kiddushin after Shabbos *m'safek*, and I'm just offering a suggestion why it was only a safek.

Akiva Miller
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