Natan Hu Amar Hi

  • Rav Moshe Taragin

To effect a complete kiddushin, a husband must both deliver money or money equivalent as well as declare a marriage "statement." Since the husband is conferring the kiddushin status upon a woman, his execution of the kiddushin ceremony is crucial. In fact, the gemara in Kiddushin (4b) asserts that the pasuk, "Ki yikach ish isha…," (which serves as the basis of kiddushin through kessef), indicates the fact that the husband is installing the kiddushin status for the woman and that he should therefore be the primary "executor" of the kiddushin ceremony. After all, there is an additional source establishing the efficacy of money for kiddushin (see Kiddushin 3b, which derives kiddushin through kessef from a pasuk in Mishpatim). The verse of "ki yikach" is nonetheless written primarily to introduce the concept of the husband as the primary executor.

 

What is unclear, however, is HOW MUCH of the kiddushin ceremony must be performed by the husband. This question is addressed by a gemara in Kiddushin (5b), which describes a split kiddushin process. The specific case discusses a man who delivered money but whose wife declared the kiddushin formula – "Natan hu ve-amra hi." The gemara debates whether this scenario DEFINITELY fails or if it remains a safek (thus requiring a get just in case), but one thing is clear – something about this process is flawed. Since the husband did not articulate the formula of kiddushin, the process is defective. Does this defect reflect the scope of the ma'aseh kiddushin (act of kiddushin) and what aspects the husband must personally perform?

 

Some offer an unrelated reason for the failure of this kiddushin. If the husband does not verbalize the kiddushin formula, we cannot assume he AGREES to the kiddushin. Even if he delivers the money based upon the prior verbalization of the kiddushin formula by the woman, we cannot assume that he intends marriage, and without his INTENT, the kiddushin fails. The Mishnah La-Melech suggests this approach to explain the position of the Yad Rama, who claims that if, upon hearing the woman's articulation of the kiddushin formula, the husband exclaims, "Yes" (or the equivalent), the kiddushin is valid despite the absence of a formal declaration by the husband. Presumably, the Rama maintains that the ONLY concern with the woman's articulation is the uncertainty of the husband's intent. If he conveys acquiescence, the kiddushin is valid.

 

In fact, a subsequent gemara describes a situation in which the husband is COMPLETELY silent but CLEARLY intends the marriage, and the gemara validates this form of kiddushin. This case is known as "asukin be-oto inyan." The gemara describes a situation in which the two parties were attending to various details of the kiddushin and suddenly the husband silently offered money to the woman. Since it is obvious that he intends kiddushin, the ma'aseh kiddushin succeeds despite the absence of a formal declaration. Evidently, no formal declaration is necessary and the only concern about a kiddushin in which the woman verbalized the declaration surrounds the unclear intent of the man.

 

However, in his explanation of the flaw of natan hu ve-amar hi,Rashi cites the verse of "ki yikach" and the associated derasha disqualifying "ki tikach." Evidently, independent of the empirical concerns as to whether the husband intends the kiddushin, this type of ceremony exhibits structural problems. Perhaps the declaration of marriage is an inherent element of the kiddushin ceremony or of the ma'aseh kichah (the act by which marriage is affected). Accordingly, the declaration is not merely an indicator of the intent of the parties, but has legal impact as well. By writing ki yikach the Torah mandates that the husband execute the ma’aseh kidddushin. Since the declaration is an integral part of the act of kiddushin it must be performed by the husband. If the woman preempts him, his act of kiddushin is flawed.

 

This notion is reflected by an interesting position stated by "Rashi" in his explanation of the Rif. (Although this commentary is titled as "Rashi," it is traditionally assumed to be authored by a later commentary.) He writes that even a husband who employs a shetar as kiddushin must declare the kiddushin formula. The mechanism of a shetar certainly conveys the husband's intent through its written content, and no ADDITIONAL declaration should be necessary to complete the kiddushin. If a declaration IS required EVEN in the scenario of a shetar, perhaps it is because the declaration has an INDEPENDENT FORMAL function. If this is true, perhaps the situation of natan hu ve-amar hi is flawed because the husband has not COMPLETED the entire act of ki yikach, which entails delivering money as well as making a declaration.

 

Interestingly, the Behag claims that the reverse case – in which the woman delivered the money and the husband articulated the kiddushin formula – is identical to natan hu ve-amar hi a scenario in which the man delivered money and the woman verbalized the declaration. Presumably, the Behag maintains that the flaw common to both consists of the husband performing an INCOMPLETE act of kiddushin, which typically entails BOTH delivering money and declaring the kiddushin formula.

 

If this position is correct and the flaw of the natan hu ve-amar hi is due to an INCOMPLETE kiddushin package, we would expect this disqualification to be suspended in instances in which the husband performed the ENTIRE package AND the woman participated. Indeed, several Rishonim adopt this approach.

 

For example, several Ba'alei Ha-Tosafot (Rosh and Ri Ha-Zaken) discuss a scenario in which the husband delivered money in an asukin be-oto inyan context (the parties were involved in arranging the marriage) and the woman ADDITIONALLY articulated a kiddushin declaration. Since that the husband executed a COMPLETE kiddushin, (the CONTEXT of planning the marriage substitutes the actual declaration), the woman's extraneous declaration does not invalidate the process. The disqualification of natan hu ve-amar hi is based upon an incomplete kiddushin act on the part of the husband. In this instance, DESPITE and UNRELATED to the woman's declaration, the husband's participation is complete.

 

Yet several Rishonim disagree with this position, forcing a very different view of the natan hu ve-amar hi flaw. For example, the Tosafot Rid rules that DESPITE the fact that the husband has performed a complete ma'aseh kichah, and despite the fact that if the woman had been silent the kiddushin would have succeeded, if she verbalizes the kiddushin declaration, the process becomes invalid. Evidently, the Rid maintains that the underlying reason that natan hu ve-amar hi is invalid is NOT the incomplete nature of the husband's activity, but rather the intervention of the woman. By writing "Ki yikach" in the male form (with the associated derasha of "Ve-lo ki tikach"), the Torah instructs that the woman must be inactive. Any halakhic assertiveness on her part – for example, her articulating a kiddushin declaration – invalidates the kiddushin, even if the husband has performed a COMPLETE kiddushin.

 

This third option – that a woman's verbalization disqualifies the kiddushin – invites some very important questions. What "other" activities can potentially ruin the kiddushin by converting the woman into an ACTIVE author of the kiddushin? If the woman's activity does not disqualify the kiddushin but rather preempts the man and renders his ma’aseh kiddushin incomplete, halakhic concerns would only surround the act of delivering the money and potentially the act of verbalizing the declaration. As long as the husband executes these activities, her PERIPHERAL activities are of no concern. However, if her assertive activities disqualify the kiddushin, perhaps even her involvement in secondary activities would be problematic.

 

There are several examples that suggest that even a woman's peripheral assertiveness disqualifies the kiddushin. One example is cited by the Rashba (Kiddushin 7a). The gemara discusses an unrelated invalid case of kiddushin in which a man limits the scope of his kiddushin to half of the woman ("chatzi isha"). The gemara claims that the partial kiddushin does not automatically extend to the entire woman, as the woman may be opposed (in contrast to “unilateral” halakhic activities, in which a partial status MAY automatically expand). The Rashba considers a situation in which a woman is not opposed to the expansion of the marital status (from half to whole). If she indicates willingness to allow the status to expand, why should it be disqualified? The Rashba responds that any female role in shaping the scope of the marital status would entail a disqualification of "Ki yikach ve-lo ki tikach." Even though she has not delivered money or verbalized the kiddushin formula, her MERE INVOLVEMENT (in this instance, in determining the scope of the yielded marital status) disqualifies the kiddushin. It appears that the Rashba agrees the woman must remain inactive. Her activities invalidate the kiddushin even if she hasn’t preempted a full act of kiddushin by the man.

 

A second statement of the Rashba reinforces this notion. The gemara in Kiddushin (9b) discusses the authorship of the shetar kiddushin. Must the husband secure the wife's approval to DRAFT the contract? Although he must secure her approval to conduct the marriage ceremony WITH THE CONTRACT, perhaps he can unilaterally draft the contract (just as he can unilaterally draft a get). The gemara cites a dispute among the Amora'im. The Rashba questions why the gemara does not consider a third option – that the woman ALONE draft the shetar, subsequently handing it to the husband so that he can formally deliver it to her. The Rashba responds that this would entail a concern of "Ki yikach ve-lo ki tikach," since the woman would be (solely) involved in drafting the kiddushin contract. Again, the Rashba describes a scenario of the woman's intervention in a preliminary stage that is not integral to the ACTUAL kiddushin process, yet the disqualification of "Ki yikach ve-lo ki tikach" applies. Evidently, the woman's intervention is not merely preemptive of the husband's performing a complete kiddushin process. Any intervention invalidates the kiddushin, even one that merely assigns the woman an authorial role in an early stage of the process.

 

A fascinating (and extremely provocative) application of this idea is suggested by the Ran in Nedarim (30a). Conventionally, the woman's role in the kiddushin process is compared to the seller's role in a land based acquisition. Just as the seller ACTIVELY intends the sale – known as "da'at makneh" – a woman similarly ACTIVELY intends the marriage process. Although no gemara assigns da'at makneh to the woman, several allude to this role, as do many Rishonim. (See, for example, Rashi on Kiddushin 44a, who explicitly identifies the woman's intent as da'at makneh.) Presumably, in standard kiddushin ceremonies, since the woman has not performed any ACTION, nor has she altered the normal scope of the kiddushin (as opposed to stretching an otherwise partial kiddushin, as described in the aforementioned Rashba), she has not violated "Ki yikach ve-lo ki tikach." This is the standard model of classic kiddushin – the man acquires and performs the requisite activities while the woman supplies the da'at makneh.

 

 

The Ran disagrees with this model. Supplying da'at makneh would be TOO ACTIVE a role for the woman and would violate "Ki yikach ve-lo ki tikach." Instead, the Ran writes, the woman merely "allows" the marriage by removing any resistance and enables the husband to perform the marriage. This has significant implications as to the LEVEL of da'at the woman must supply and even the TYPE of woman who can be married. However, it is also a bold statement about the rule of "Ki yikach ve-lo ki tikach." Any active role of the woman – even if standard and even if merely mental – would disqualify the kiddushin! Clearly, her activity disqualifies the kiddushin inherently and not merely because she prevents her husband's performance of the complete kiddushin