Marrying a Woman by Accepting her Gift (adam chashuv)

  • Rav Moshe Taragin

The gemara in Kiddushin stipulates an odd form of kiddushin. Although the functional role of amira (verbally declaring the kiddushin process) is debated, all agree that the delivery of money (or monetary equivalent) is absolutely vital and central to the kiddushin ceremony. The Torah describes kiddushin with the phrase "ki yikach," which evokes association with the process by which Avraham acquired land in Chevron to bury Sarah. This association dictates that kiddushin revolves around the delivery of money. However, the gemara in Kiddushin (7a) describes a situation in which a WOMAN delivered money TO THE HUSBAND in order to affect the kiddushin.  Even though the male typically drives the kiddushin process, the woman's delivery is valid if the male recipient is an “adam chashuv” (an important person). By accepting her “gift,” the male recipient has delivered BENEFIT to the woman. She is FLATTERED by his interest in her, as demonstrated by his accepting her gift. This pleasure or benefit serves as the kessef kiddushin – delivered from male to female!

 

Although this sounds odd, Halakha typically recognizes benefit delivered by receiving a gift. For example, the Rosh in Berakhot discusses the berakha recited by someone who receives a gift. Typically, She-Hechiyanu is recited when purchasing special items. An alternate berakha – known as Ha-Tov Ve-Hameitiv – is recited when acquiring something which both yields personal benefit as well as delivers benefit to others. The Rosh claims that a receiver of a gift should recite Ha-Tov Ve-Hameitiv, since he benefits and his receipt of the gift delivers benefit to the gift-giver. A similar gemara in Bava Metzia (47a) appears to utilize this “benefit” (hana'ah) as a tool for processing chalipin kinyan. Chalipin is an exchange whereby the acquirer proffers an item to the seller IN EXCHANGE for the item he is acquiring. Presumably, the purchaser should furnish HIS item in exchange for the item he is acquiring – and indeed Rav claims that chalipin must be performed with the items of the purchaser (keilav shel koneh). However, Levi claims that the SELLER may deliver items to the purchaser to affect the chalipin EXCHANGE, thereby transferring ownership of the purchase item from the seller to owner. As the gemara explains, by accepting the item of the seller, the purchaser has delivered benefit to the seller. The benefit he delivers to the seller by accepting his gift is the EXCHANGE for the item he wishes to purchase.

 

However, even though this “benefit of receiving a gift” is recognized by Halakha and applied in various cases, in the scenario of Kiddushin, it is only applied in the case of a man who is AN IMPORTANT person and who “agrees” to accept the woman's offer of a gift. Why is kiddushin only be affected if the receipt of the gift was performed by an important person?

 

Several Rishonim raise this question, including the Ramban. One of his answers suggests that unless the recipient is an important person, the benefit of receiving the gift is not significant enough. Although this “insignificant hana'ah” may be halakhically recognized, it is insufficient to generate kiddushin. As the Ran claims, the benefit derived from an average person's receipt of a gift is not valued above a shava peruta, the minimum shiur for kiddushin. If an important person receives the woman's gift, however, he has delivered benefit VALUED MORE THAN a peruta and kiddushin can be affected. The extra requirement of “receipt by an important person” was necessary to “bump” the value of the benefit above the minimum monetary value necessary for kiddushin.

 

The Rashba's comments regarding this question may suggest otherwise. In his view, the adam chashhuv is uniquely necessary for kiddushin so that the benefit will be considered significant, rather than trivial. Apparently, the difference between “receipt by average people” and “receipt by important people” is not merely quantitative, but categorical. Kiddushin requires “hana'ah rabati,” superior hana'ah, and not just common hana'ah. This position is reminiscent of a comment by the Yad Rama (6b) explaining why a man cannot marry a woman by erasing a debt. Even though he has delivered hana'ah of significant sums, since this is uncommon (or intangible, as she does not feel as that she is receiving anything), she cannot be married through this hana'ah delivery. Evidently the standards for kiddushin are higher than typical transactions. Typically, hana'ah can serve as a stand-in for actual currency. However, kiddushin demands that the husband deliver superior hana'ah to the woman.

 

Perhaps this higher standard reflects the reality that kiddushin entails more than just financial acquisition. The husband is also creating a personal relationship of marriage through the kiddushin process. This personal relationship of ishut can only be triggered if superior benefit is delivered. Several other halachot suggest that the kiddushin process is held to higher standards, possibly explained by the fact that it aims to develop a personal relationship that extends beyond financial realities. For example, it appears that the Rambam (Ishut 4:1) fundamentally disqualifies “coerced” weddings. This is puzzling, since coerced sales are halakhically valid (although morally abhorrent). By coercing the seller, I can garner his acquiescence. At some stage, facing my unrelenting pressure, he WILLS the sale – to release himself from the barrage of pressure. I have coerced or manufactured his willing interest in the sale. Yet the Rambam claims that coerced marriages (talyuhu ve-kaddish) are fundamentally flawed. Possibly the same dynamic explains the difference between kiddushin and typical financial sales. Since kiddushin establishes a personal factor, a superior level of compliance is required – one which must be voluntary and not coerced. As many articulate, kiddushin requires ratzon ha-isha, and not just da'at, her voluntary interest and not just her legal compliance. The latter can be coerced, while the former cannot. Just as a superior level of compliance is necessary for kiddushin, a higher form of hana'ah is similarly required.

 

Perhaps the unique kiddushin requirement of adam chashuv can be explained differently. Perhaps commonplace benefit cannot be delivered as kesef kiddushin. Since the Torah demands an ACT of marriage, ACTUAL kesef must be delivered. Certain forms of hana'ah are so universally regarded and so valuable that they are considered kesef equivalent. Just as foodstuffs and items (shaveh kesef) are considered kesef equivalents, certain types of hana'ah can be similarly designated as virtual kesef. However, benefits may only be kesef equivalents if they are generally accepted “services.” If the benefit is something that is objectively valued and universally paid for, it is defined as a service, with a specific price tag and a kesef equivalent. If it is personal and capricious, it MAY benefit me, but it cannot be considered a universally valued service and a kesef equivalent. Adam chashuv may be necessary to convert the “benefit” of receiving a gift into a service rather than just a halakhically approved benefit. In general, monetary acquisitions can be triggered by delivering benefit; kiddushin can only be enabled if actual services are delivered.

 

 

This appears to be Rashi's view. Commenting upon the scenario of adam chashuv, he claims that by accepting the gift, the man is marrying the woman “by saving her the money she would otherwise pay to hire someone to lobby him to accept her gift.” By accepting her gift, he saves her the money she would have spent facilitating this gift. Apparently, the adam chashuv scenario is only operative if the adam chashuv is universally regarded as such and people regularly pay for the service of persuading him to accept a gift. Evidently, Rashi felt that mere “benefit” of receiving a gift – although highly valuable – would not affect a kiddushin. Only service-hana'ah can be viewed as kesef equivalent and only important people deliver a “service” by accepting her gift. The unique adam chashuv requirement of kiddushin was necessary to upgrade the benefit into service-benefit.