Shiur #06: Kiddushin (1)

  • Rav David Brofsky

Introduction

There are two parts, or two stages, to a halakhic marriage: kiddushin (eirusin) and nisu’in. Although these two parts are currently performed on the same day, at the wedding ceremony, in Talmudic times they were separated by a significant period of time, up to twelve months (Ketubot 48b). As we shall see, the first part, kiddushin, is achieved in one of three ways: kesef (giving something worth at least a peruta to the woman), shetar (a marriage document), or bi’ah (sexual relations performed with the intention of marriage). The act of kiddushin must also include a statement of intent, as well as two witnesses. We will discuss these requirements in greater depth in a future shiur.

What is the halakhic significance of kiddushin, as opposed to nisu’in?

After kiddushin, the couple is considered to be “married,” and the woman therefore cannot marry another man (tefisat kiddushin). Sexual relations with the woman are punishable by mitat beit din and the offspring of such relations would be considered mamzerim. After kiddushin, the relationship can only be terminated through a get.

However, the nature of the relationship between the man and woman changes still further upon nesu’in. The punishment for adultery is different if a woman is an arusa (sekila) or nesu’a (chenek). Mi-de’oraita, after nesu’in, a husband may annul his wife’s vows, and if he is a kohen, he must become impure for his wife’s burial (Kiddushin 10a). Mi-derabbanan, a husband acquires the rights to his wife’s “ma’aseh yadeha” (handiwork) after nisu’in. In addition, only after nisu’in does a husband become responsible to provide clothing for his wife and to fulfill his marital duties, and he inherits his wife’s belongings in case of death (Kiddushin ibid.); the Rishonim disagree regarding whether these laws are Biblical or Rabbinic. A man and woman may only engage in sexual relations after nisu’in (see Rambam, Hilkhot Ishut 10:1).

Kiddushin appears to initiate a formal, legal relationship between a man and woman, while nisu’in and its halakhic ramifications reflect the more intimate relationship between husband and wife.

This week, we will begin our discussion of kiddushin. We will study the nature of kiddushin and the different methods described by the mishna (Kiddushin 2a). In future shiurim, we will further discuss these methods of kiddushin, the definition of nisu’in, and how these two parts are performed nowadays.

Kiddushei Kesef

The well known mishna (Kiddushin 2a) teaches:

A woman is acquired [i.e., becomes betrothed to a man to be his wife] in three ways, and she acquires herself [i.e., she terminates her marriage] in two ways. She is acquired through money, through a document, and through sexual relations.

The term “nikneit” (is acquired), as well as the manner in which kiddushei kesef is performed, has led to the misimpression that kiddushin is truly a form of acquisition, in which a man “purchases” a woman. Although there are a handful of sources that appear to support this claim (see, for example, Tosafot Ha-Rosh Ketubot 2a, s.v. nistachfa, and Kiddushin 5a, s.v. ve-hai; Avnei Milu’im 29b), there is no halakhic evidence that kiddushin affects a kinyan or ownership of any sorts. Furthermore, the Talmud generally chooses a different verb to describe the forming this relationship: le-kadesh, which does not reflect kinyan, but rather, designation, or even consecration (le-kadesh). 

            If so, how are we to understand the process and nature of kiddushin? We will begin by briefly analyzing the first of the three means of betrothing: kiddushei kesef.

            As mentioned above, the mishna lists kiddushei kesef as one of the three methods of kiddushin. The gemara (Kiddushin 2b) searches for a source for kiddushei kesef:

And from where do we [derive that betrothal is accomplished by means of giving] money? It is derived [by means of a verbal analogy between the term expressing] taking [stated with regard to betrothal and] from [the term expressing] taking with regard to the field of Ephron. How so? It is written here, with regard to marriage: “When a man takes (yikach) a woman” (Devarim 24:1), and it is written there [concerning Avraham’s purchase of the field of the Cave of Makhpela from Ephron the Hittite]: “I will give money for the field; take (kach) it from me” (Bereishit 23:13). [This verbal analogy teaches that just as Ephron’s field was acquired with money, so too, a woman can be “acquired” with money.] And the taking [of Ephron’s field] is called an acquisition in the Torah, as it is written with regard to the same issue: “The field which Abraham acquired” (Bereishit 25:10). Alternatively, it can be proven that purchasing a field with money is called an acquisition from the verse: “They shall acquire fields with money” (Yirmiyahu 32:44) … And what is the reason that betrothal is called kiddushin [literally, consecration] in the language of the Sages? The reason is that through betrothal the husband renders her forbidden to everyone like consecrated property. Therefore, this act is referred to as consecration.

The simple understand of the gemara implies that kiddushei kesef is of Biblical origin, but some Rishonim imply that his form of kiddushin may be of Rabbinic origin (see, for example, Rashi, Ketubot 3a, s.v. shavya). The Rambam appears to believe that kiddushei kesef are of Rabbinic origin as well, describing it as “mi-divrei sofrim” (Hilkhot Ishut 1:2). However, in a responsum (Blau 355), the Rambam insists that laws that are derived from verses are called divrei sofrim, but their status is Biblical.

            What is the nature of this form of kiddushin?  There appear to be two possibilities.

On the one hand, just as an act of kinyan entails the buyer giving the seller money in order to create a legal relationship with the object, a man similarly becomes legally connected to a woman, and her ability to remarry may even be “acquired” (kinyan issur), through the act of kiddushin. Interestingly, the Talmud did not derive this method of kiddushin from the acquisition of an object, but rather from the acquisition of a field. As far as the laws of acquisitions are concerns, acquiring land is unique. A field is not physically brought into the procession of a person. Rather, an act that symbolizes the relationship between the buyer and seller creates a new identity. Similarly, the kesef kiddushin do not reflect the “value” of the woman (see Avnei Milu’im above), but rather signify the man’s desire to become formally and legally bound to the woman. Of course, if one focuses on the term “kiddushin,” which implies a form of consecration, then the transfer of money is certainly viewed as an expression of the man’s desire to begin a relationship that completely changes the status of the woman from a single woman to a married one.

Alternatively, we might suggest that the transfer of money itself does not affect the change of status. Rather, the benefit that the woman receives convinces her to devote herself to her husband. This approach is especially compelling in light of the numerous passages that imply that benefit (hana’ah) alone can create kiddushin (see Ketubot 102b; see also Kiddushin 3a-3b).

These two approaches appear to be the subject of debate in the gemara, as well as among the Rishonim.

Next week, we will continue our discussion of the nature and method of kiddushin