The “Acquisition” Effected Through Kiddushin

I. “A Woman is Acquired”

 

            The first mishna in Kiddushin opens with the words: “A woman is acquired [nikneit] in three ways.” In this shiur I wish to deal with the meaning of the term “acquired” in the context of kiddushin.

 

This term is used very few times in Kiddushin. Much more common is the term lekadesh, which generally means “to consecrate,” but in our context means “to betroth.” The Gemara explains this usage as follows: When a man betroths a woman, she becomes forbidden to the rest of the world, just as an article consecrated to God is forbidden to others (Kiddushin 2b). Nevertheless, the term “acquired” does appear in the context of marriage, and the nature of this acquisition requires clarification.

 

            Let us first examine the extreme approach found in the Tosafot Rosh. He relates to a mishna found in Ketubot (75a) that deals with a case where significant defects are discovered in the bride between the time of kiddushin and the time of nisuin, and the groom refuses to marry her as a result. In such a case, he is obligated to grant her a divorce, as they were already bound by kiddushin. The question arises whether the groom must pay the bride her ketuba after the divorce. The groom argues that the bride already had the defects prior to the betrothal, but he had not known about them. Had he known, he never would have betrothed her, and therefore he should not be obligated to pay her ketuba. The father of the bride, on the other hand, argues that the defects arose only later, after she was already betrothed to her husband. (The Mishna establishes a certain principle to guide us in deciding the matter, but this is not our concern here.)

 

            The Tosafot Rosh raises the following objection: Why do we assume that if the defects developed only after the kiddushin,the husband is indeed obligated to pay his wife her ketuba? Why not say that in such a case it is the woman's responsibility, as it is her problem, and so she forfeits her ketuba? This is his answer: “Because the woman is the man's monetary acquisition, like his slave, his ox and his donkey, and she depends on his fortune” (Tosafot Rosh, Ketubot, 2a). According to the Tosafot Rosh,the woman is the husband's property from the moment she enters into his possession, and any damage that she incurs is her husband's bad fortune and not her responsibility. We are less interested in the specific case under discussion, and more interested in the Tosafot Rosh'sposition with regard to the nature of the acquisition effected through kiddushin. The Tosafot Rosh compares the acquisition effected through kiddushin to ordinary monetary acquisition.

 

            There is another instance where the Gemara uses the term “acquisition” in connection with a wife. The Gemara in Kiddushin proposes a source for the law that if a woman who is the daughter of an ordinary Israelite was betrothed to a priest, she may eat teruma:

 

By Torah law, a betrothed woman who is the daughter of an Israelite may eat of teruma, as it is stated: “And if a priest acquire any soul as his monetary acquisition,” and this one [a betrothed woman] is [also] his monetary acquisition. (Kiddushin 5a)

 

The Gemara later on explains that by Rabbinic law, a woman who is betrothed to a priest may not eat teruma because of various concerns, but the fundamental argument remains in place: By Torah law, a woman betrothed to a priest may eat teruma because she is regarded as “his monetary acquisition.”

 

Unsurprisingly, the Tosafot Rosh there explains this term in its simple monetary sense: “Since he rules over her and she is subject to him, she is called ‘his monetary acquisition,’ even if he acquired her by way of a deed or through intercourse” (Tosafot Rosh, Kiddushin 5a). The Tosafot Rosh comes to negate an alternative understanding of the term “his monetary acquisition.” There might have been room to say that a betrothed woman is considered her husband's “monetary acquisition” only when her betrothal was effected through money (or movables that are equivalent to money, e.g., a ring). The Tosafot Rosh negates this explanation, arguing that the wife is “his monetary acquisition” even when the betrothal was effected in some other way – by way of a deed or through sexual relations.

 

There still might be room to propose a third understanding, namely, that we are dealing here with a term that is exclusively symbolic. But the Tosafot Rosh insists that the husband acquires his wife in a full-fledged monetary transaction, and, as a result, she becomes part of his property.

 

There are, however, Talmudic sources that imply that the husband's “acquisition” of his wife is limited and very different from ordinary acquisition. This is evident, for example, from the Gemara in Kiddushin that deals with the legal formula that a man must pronounce when he gives his wife a bill of divorce. He must say to her: “Behold, you are divorced,” or “Behold, you are permitted to all men.” But what is the law if he uses a different formula? The Gemara tries to clarify the law in a case where the man divorcing his wife says her: “Behold, you belong to yourself.” Is this effective or not? The Gemara tries to prove the matter from the fact that this formula is identical to the one found in a slave's bill of manumission. The Gemara argues that if this formula works to free a Canaanite slave, whose body belongs to his master, all the more so should it work to divorce a woman, whose body does not belong to her husband (Kiddushin 6b). Implied in the Gemara’s logic is that a married woman is unlike a Canaanite slave in that she is not the property of her husband.

 

There are also various limitations on the husband's proprietary rights over his wife. All agree, for example, that a man cannot sell his wife into servitude. These limitations indicate that a man's “acquisition” of his wife is not the same as his acquisition of his car. However, it is still not clear whether we are dealing with a limited quasi-monetary acquisition or with an entirely different principle that is not similar in any way to monetary acquisition.

 

Some Rishonim present an approach that is entirely different from that of the Tosafot Rosh. We have already seen that the first mishna in Kiddushin opens with the phrase: “A woman is acquired.” The Meiri explains that the term “acquisition” is used here in a very specific sense:

 

The woman is acquired by the person who betroths her, in the sense that nobody else can acquire her, and that as long as he lives she is not permitted to any other man without a bill of divorce. (Meiri, Kiddushin 2a)

 

According to the Meiri, the term “acquired” is used here in a borrowed sense. What it means is simply that the woman is designated for her husband and forbidden to the rest of the world.

 

            The Ramban disagrees with the Tosafot Rosh as well. His position arises in Gittin, where the Gemara deals with the need to authenticate the signatures attached to a deed. When the defendant is present, he can, in certain circumstances, demand that the signatures to a promissory note presented against him be authenticated. But what is the law if the defendant is not present, or when the defendants are minor orphans, who lack legal competency? Does the court automatically raise the issue and force the deed holder to prove the deed's authenticity?

 

            Some try to prove that this is not the case from the law governing a married woman. When a woman who had been married but claims that she received a divorce from her husband and wishes to remarry, and even presents her bill of divorce from her first husband, we do not require that she prove the authenticity of the document. It would seem possible, then, to learn from here that unless the issue is explicitly raised, there is no need to question the authenticity of a document.

 

            The Ramban rejects this argument, asserting that a monetary note cannot be compared to a bill of divorce:

 

This is not right, for without a doubt anybody who collects payment not in the debtor's presence, or from heirs, or from purchasers must confirm his promissory note… But she is not similar to our mishna, for this woman is not her husband's property, but rather she is in her own domain to marry, and we do not prevent her. (Ramban, Gittin 9a)

 

If a woman comes before a court with a bill of divorce in her hand, and she wishes to remarry, we do not require her to authenticate the signatures on the bill of divorce. The Ramban argues that we cannot learn from here that the same is true about a creditor who holds his debtor's promissory note in his hand. We do not require this of the woman, as there is no party whom we must protect. When a woman claims that she was divorced and that she wishes to remarry, this is not an issue between her and her previous husband, but rather between her and God: “For this woman is not her husband's property.” Therefore, there is no need for the court to protect the interests of her first husband and ascertain that indeed she was properly divorced. The woman is not her husband's property, and he is not a party to the matter.

 

            According to the Ramban's approach, we can understand that the term “acquisition” in the context of marriage does not at all imply monetary acquisition. It refers to a formal, legal relationship that parallels monetary acquisition in some of its aspects, but is very different from it in its very essence.

 

II. Kiddushin Effected Through Money

 

            It is possible to examine the disagreement regarding the nature of the acquisition effected through kiddushin, by taking a closer look at one of the modes of kiddushin: kiddushin effected through money. Without a doubt, this technique is the closest to monetary acquisition. In our time, kiddushin is always effected through money: The groom gives his bride an item of value – a ring, generally – and with that she becomes his wife.

 

            Before we consider kiddushin effected through money, let us examine a law relating to acquisition effected through money in a purely monetary-business context. What is the law when a person acquires property with money, but pays in installments? Does he acquire possession of the property with the first payment, or only with the final payment? The Shulchan Arukh rules that in such a case the buyer acquires possession the moment he pays the first peruta, or very minimal amount (Choshen Mishpat 190:1-2).

 

            The Acharonim disagree about why the buyer acquires possession the moment he pays the first peruta, even before he finishes paying for the item he bought. The Sema argues that monetary acquisition is not symbolic, like other modes of acquisition, but rather expresses the essence of the act of payment. Therefore, only money given as part of the payment is effective in acquiring the item. The acquisition is only valid if the amount that has been paid is subtracted from the amount that is still owed. If it is merely a symbolic act of giving a token amount, the item is not acquired. The Taz disagrees with the Sema:

 

That which the Sema writes in note 1, that if money is given not in payment for the item’s value, the acquisition is not valid – I do not understand at all. Surely also with respect to the acquisition of a wife with money… And it is obvious that in the case of a wife, he acquires her simply by giving money, not as payment for what she is worth.

 

According to the Taz, monetary acquisition is indeed symbolic, like the other modes of acquisition. He brings proof from kiddushin effected through money, pointing out that it is derived from the very same Biblical source as the general mode of monetary acquisition.[1] And in the case of kiddushin, it is obvious that the acquisition does not involve payment of the woman's worth, but rather we are dealing with a symbolic act.

 

An important point can be inferred from the view of the Sema. He understands that general monetary acquisition involves an initial payment of the value of the item being purchased (and not only a symbolic act). But how does the Sema understand kiddushin effected through money? The Acharonim disagree about this. The Avnei Milu’im (29, 2) argues that, according to the Sema, kiddushin effected through money should be understood like any other monetary acquisition: The money should be understood as a representation of the woman's value. The Even Ha-ezel, however, understands differently:

 

That which the Avnei Milu'im writes, that even the money that effects kiddushin is money that represents the woman's value, is certainly unreasonable… The gist of our words is that money that effects a sale and money that effects kiddushin are two different things, for money that effects a sale is money that represents the item's value, whereas money that effects kiddushin is money that symbolically acquires. (Even Ha-ezel, Hilkhot Mekhira 1:4)

 

The Even Ha-ezel argues that, even according to the Sema, a distinction must be made between a normal purchase effected through money and kiddushin effected through money. Unlike ordinary monetary acquisition, when money is used to effect kiddushin, it is a symbolic process, and not payment.

 

III. The Components of Kiddushin – Acquistion, Marital Bond, Prohibition

 

            Kiddushin in the Yerushalmi opens with Rabbi Chiyya's assertion that when the Mishna says, “a woman is acquired in three ways,” it does not mean that we require all three modes of kiddushin (money, deed, and sexual intercourse) in each case, but rather that one of the three suffices. The Yerushalmi continues with a lengthy proof in support of this assertion.

 

            What was Rabbi Chiyya thinking? Why would we think to require all three modes of kiddushin? We learn elsewhere that landed property is acquired with money, a deed and physical control, and nobody has ever imagined that we should require all three modes of acquisition in order to transfer ownership of land!

 

            The Yerushalmi may be understood as follows: Kiddushin has three components: formal acquisition, the creation of a marital bond and the imposition of a prohibition. We have already discussed the aspect of acquisition, arguing for the possibility that we are not dealing here with monetary acquisition, but rather with the formal and legal dimension of kiddushin. In addition to this dimension, there is also the creation of a marital bond, which expresses the personal relationship between the man and the woman. The man and the woman become a single family. At the stage of nisu'in, this personal relationship reaches perfection, but it is reasonable to say that there is an aspect of a marital bond even at the stage of kiddushin. The Gemara in Nedarim (29a) uses the term “bodily sanctity” with respect to a betrothed woman. This is a concept taken from the world of kodashim, according to which a consecrated item not only belongs to the Temple treasury, but its whole status has changed. The same is true of a married woman: The term “bodily sanctity” alludes to the fact that the relationship between a woman and her husband cannot be fully described using only terms of acquisition, as there exists an essential personal relationship between them. The third component is the prohibition, that is to say, a change in the woman's status regarding the men to whom she is permitted: The woman is forthwith prohibited to all the other men in the world.

 

            It may be suggested that the three modes of kiddushin correspond to these three dimensions. Money is connected to the legal-formal dimension, sexual relations are connected to the marital bond, and express the special relationship between the man and his wife, and the deed is connected to the prohibition – just as a bill of divorce permits a woman to the entire world, so too a bill of betrothal forbids her to the entire world.[2] Thus, we can understand the Yerushalmi's thinking: There might have been room to think that all three modes of kiddushin are required, one alongside the other, in order for all three dimensions of kiddushin to apply.

 

            In the end, the Yerushalmi rejects this proposal. But it is reasonable to think that the analysis regarding the nature of kiddushin is correct: Kiddushin effected through money emphasizes the monetary dimension; kiddushin effected through a deed emphasizes the prohibition; and kiddushin effected through intercourse emphasizes the marital bond. If so, why, in the end, does one mode suffice? The Yerushalmi apparently understands that the various modes of kiddushin are merely entranceways to the essence of kiddushin. Kiddushin has three such entranceways: one through “acquisition,” one through a marital bond and one through prohibition. But each of these entranceways leads to the full essence of kiddushin, which embraces all three of these dimensions.

 

(Translated by David Strauss)