Shiur #8: Amira Be-kiddushin - The Function of the Declaration in the Act of Kiddushin

  • Rav Yosef Zvi Rimon

 

GEMARA KIDDUSHIN

 

Shiur #8: Amira Be-kiddushin

The function of the declaration in the act of kiddushin

 

based on a shiur by Rav Yosef Zvi Rimon

Translated by Zev Jacobson

 

 

            In Kiddushin 5b we read:

 

"Tanu Rabbanan: How does one betroth a woman with money?

If he gives the money and says to her: "You are hereby married to me" ...she is married...

If she gives the money and says to him: "I am hereby married to you" she is not married....

If he gives the money and she says to him: "I am hereby married to you" it is a safek (dubious - and therefore both possibilities have to be considered).

 

            One of the issues of our sugya is the role of the declaration [amira] of the husband at the time of kiddushin.  What is the purpose of the amira in kiddushin?  In particular, what is the safek in the case where "he gives the money and she says to him"?  By means of a close reading of the Rishonim, we will attempt to clarify these questions.

 

            There are two basic approaches regarding the necessity of amira on the man's part:

 

1. We need the declaration of the husband in order to evaluate his intentions and not as an essential part of the kiddushin process.  When the woman makes the declaration, we are unsure whether the man intended the money as a gift or as kesef kiddushin.  [See Avnei Milu'im 27:18 with regard to the opinion of the Rif.]

 

2. It is possible that even if we are entirely sure of the man's intentions, the kiddushin will not take effect if he fails to formally declare "You are hereby married to me."

 

            Since the man is required to perform the formal act of kiddushin (see 2b), the man must make the declaration as part of the formal ceremony.  When the woman makes the declaration, even though the intentions of both are clear, the formal act of kiddushin, including the declaration has not been performed by the man.

 

I. Rashi, the Meiri, and the Rid

 

            Rashi states: [s.v. hakhi ka-amar] "...But if he didn't act in accordance with what we said, for example if he gave [the money] but she made the declaration, it is as if she gave [the money] and made the declaration; and she is not married, as the man must be the active party, as the verse states - "ki yikach" (when a man takes [a wife])."

 

            It is clear that according to Rashi the safek of the gemara is a conceptual one: Is the amira (declaration) an inherent part of the kiddushin or not? [Option 2]  Rashi says that the amira is part of the act of kiddushin itself, part of the 'ki yikach', the 'taking' that must be completely done by the husband.

 

            Similarly, the Meiri states: "The safek of the gemara relates to the din of 'ki yikach'.  Does the man merely have to give the money or must he also make a declaration when he gives it?"

 

            Clearly, the Meiri, like Rashi understands that the gemara is questioning whether amira is an essential part of the act of kiddushin.

 

The Tosafot Rid explains:

 

"...since it says "ki yikach" the man must do all of the actions relating to the kiddushin ... including the declaration."

 

            This is in contrast, he continues, to the act of "buying a field", where it does not matter if the buyer or the seller makes the declaration.  As long as it is clear that a transaction is taking place between two parties it is valid.  The distinction between buying a field and kiddushin perhaps can be explained as follows: When buying a field the money is given in exchange for the field, and therefore effect a transfer of ownership.  The money in kiddushin, however, is just a symbol.  An explicit declaration, therefore, may be required in order to define the money as a symbol of kiddushin.

 

            Furthermore, one may claim that the transfer of money is only of secondary importance.  If kiddushin is basically a relationship and not an acquisition, then the willingness to enter that relationship as expressed through amira may be of primary importance, while the transfer of money merely secondary.  [Rashi (Shemot 14:6) explains the word "lakach" - a key term in the process of kiddushin - as a "taking with words".]

 

II. Ritva

 

            The Ritva explains: "We definitely need the declaration of the man as it is written "ki yikach" [when a man takes (a wife)] and not "ki tilakach isha le-ish" [the converse which indicates a more active role for the woman].

 

            This would seem to be in keeping with the opinions of Rashi, the Meiri and Tosafot Rid that the amira forms an essential part of the kiddushin and must therefore be performed by the man.  However, a later statement of the Ritva brings this into question.

 

            The Ritva explains the safek of the gemara as follows: "Since the man gave the money, perhaps he gave it based on the woman's declaration and it is as if he said to her 'Take the money for the purpose you mentioned.'"  This suggests that the purpose of the amira is only in order to ascertain the man's intentions and is not an inherent part of the process.  This contradicts the previous statement of the Ritva.

 

            The Ritva can be explained as follows: There is no doubt that the declaration of the man is an essential part of the kiddushin.  The safek of the gemara is whether the man can make the declaration through actions and not words.  Giving money to the woman within the context of her declaration is as if he himself declared (through his actions) "Take the money for the purpose you mentioned" i.e. for kiddushin.

 

            This is a more extreme viewpoint than that subscribed to by Rashi et al.  According to Rashi, the gemara was unsure whether or not the declaration of the man was an essential part of kiddushin.  According to the Ritva this point is undisputed.  The man's declaration is indispensable as it serves to convert the money into a symbol with which the woman can be married.  However, if the man gives the money in keeping with the woman's declaration, it is possible that he thereby implicitly declares that it is as a method of marrying her that he is using the money, and it is as if he himself made the statement.

 

Summary:

 

            There are now three possibilities to answer our original questions regarding the function of the declaration and the related safek of the gemara.

 

1. The function of the declaration is to evaluate the man's intentions.  The gemara is unsure how to interpret his intentions if the woman made the declaration.

 

2. The safek of the gemara is whether the declaration is an essential part of kiddushin or not [Rashi, Meiri, Tosafot Rid.]

 

3. The declaration is definitely an essential part of the kiddushin.  The safek of the gemara is whether the giving of money by the man within the context of the woman's statement can be considered his declaration as well [Ritva].

 

III. Rama

 

            The Yad Rama writes: "If the man said 'Yes' (in response to the woman's declaration) when he gave the money, the kiddushin definitely takes effect, even if they were not discussing the marriage at the time."

 

            What is the significance of the man saying "Yes"?  The Mishna La-melekh explains that until the man says "Yes" in agreement with the declaration of the woman, we are unsure of his intentions in giving her the money.  Based on this explanation, it is clear that according to the Yad Rama the safek of the gemara revolves around the intentions of the man [Option 1.].  However, a comparison between the ruling of the Yad Rama and Hilkhot Berakhot (Laws of Blessings) will provide us with an alternate explanation.

 

            The Rambam writes (Hilkhot Berakhot 1:11): "One who hears any blessing from beginning to end and has the intention to thereby fulfill his obligation - is yotzeh (fulfills his obligation), even though he does not answer Amen.  One who answers Amen after the person making the blessing is considered to have made the blessing himself."

 

            The Kessef Mishneh questions the benefit of answering Amen if one already fulfills his obligation merely by hearing and having the proper intention.  He answers that if one does not say Amen one merely fulfills one's obligation to recite the blessing.  If, however, he does answer Amen it is considered as though he actually said the blessing himself.

 

            Rav Soloveitchik zt"l explained [as heard from Rav A. Lichtenstein shlit"a] that there are two ways of fulfilling one's obligation to recite a blessing: 1. Recitation.  2. Hearing.  One who passively listens to the blessing of another with the intention to be yotzeh, fulfills his obligation through hearing.  One who answers Amen, however, fulfills his obligation through recitation.  The word Amen contains within it the entire blessing that precedes it.  The meaning of all words is decided in context.  When one answers Amen after the statement of another, the statement becomes contained in that solitary word and it is as if the entire statement has been made.

 

            Thus, the Yad Rama could hold that the declaration in kiddushin does not merely clarify the intention of the man, but rather constitutes an essential part of the process.  When a man says 'Yes' to the woman's declaration, it could mean that the man is considered to have recited the full declaration himself!  The safek of the gemara, then, can be explained just as in Option 2 or 3 above.

 

            The Shulchan Arukh quotes the Yad Rama as accepted halakha, and the Gra [27:33] refers to a mishna in Nazir to explain his opinion. The mishna [4:1] states: "One who overhears his friend accepting upon himself to be a Nazir and says "And I too" is considered to have accepted upon himself to be a Nazir."  Intention is not sufficient to become a nazir - you have to verbalize a vow.  Apparently, in this case, it is as if he stated: "I too will be a Nazir".  The same principle can be applied in kiddushin - it is as if the man actually declared: "You are hereby married to me."

 

IV. The Ran

 

            The Ran explains why the kiddushin might be valid if the woman made the declaration.  "...Since the man was silent when he gave the money, it is evident that he agrees to thereby marry the woman.  Similarly, when the man makes the declaration and the woman remains silent when he gives her the money, we assume, based on her silence, that she agrees to thereby marry this man..."

 

            It is clear from the Ran that, according to this possibility, we do not require the declaration as an essential part of the kiddushin.  We are concerned primarily with ascertaining the intentions of both parties (option 1).  Just as there is no need for the woman specifically to declare her intentions, there is no need for the man to make a declaration either, as long as their intentions are clear.

 

            The Ran does not explain why the absence of a declaration by the man might invalidate the kiddushin [which is, after all, the safek of the gemara].  The Ran based the possibility that kiddushin would take effect, even without a declaration from the man, on two premises.  1. There is no need for a formal declaration - it is enough to be aware of his intent.  2. The man's silence can be interpreted as an implicit expression of this intent.

 

            The rejection of either of these premises is sufficient to invalidate the kiddushin.  We have already explained how it is possible to disagree with the first premise.  How can one reject the second premise?

 

            When the man gives the woman money and declares that he intends to thereby marry her, there is clearly an act of marriage [ma'aseh kiddushin] taking place and we can interpret the woman's silence as her assenting to this action.  However, when the man does not make a declaration, it is not at all clear that an act of kiddushin is taking place, and so his silence is not able to act as agreement, as he is not agreeing to anything that is clearly defined.  Therefore his declaration is required in order to define his action as a ma'aseh kiddushin.

 

            It is possible to accept both premises of the Ran and nevertheless invalidate the kiddushin.  If it is clear that the man is marrying the woman by giving her money, then we do not require a declaration from either party.  [This is the din of 'assukin be-oto inyan' (they are involved in discussing marriage) according to Rabbi Yose (Kiddushin 6a)].  However, when the woman makes the declaration, she is taking an active part in the kiddushin process.  She is now the one giving meaning to the ceremony, and not the husband alone, as his actions are defined by her declaration.  A formal declaration by the man is unnecessary; however, a declaration by the woman changes it from "ki yikach" to "ki tikach" (see Tosafot Ri Ha-zaken).

 

V. The Rashba

 

            The Rashba writes that since it is possible that the man gave the woman the money as a present, the kiddushin is invalid.  Even if the man admits afterwards that he intended thereby to marry her, the kiddushin is still invalid as the witnesses did not see a decisive act of kiddushin.  The witnesses cannot judge the inner motives of the man and, therefore, they are not considered witnesses in our case.  An act of kiddushin without witnesses is automatically invalid.

 

            In other words, the amira is necessary in order for the man to  show his intentions in giving the money.  Unless the situation in some way shows what the man's intentions are, the act of kiddushin is not valid.  The witnesses can not 'complete the picture' based on their subjective assumptions, but rather it must be objectively clear what the man's intentions are.  Therefore, if the man did not make it clear, prior to his actions, either by word or by deed, that he intends to marry this woman, it is an invalid act, even though we can assume from his behavior that he is trying to marry her.  If the witnesses can not testify as to his intentions - and without prior amira they can not, there can be no act of kiddushin.  [Nevertheless, the Rashba's wording requires further study.]

 

The Safek of the Gemara

 

            There is a nafka mina (ramification) between the divergent opinions that we have explored.  According to one approach, the safek of the gemara is a safek bi-metziut [a safek how to perceive the reality]: Did the man intend to marry the woman or not?  According to the other approach, the safek of the gemara is a safek be-dina [a safek as to the correct halakha]: Do we require a declaration from the man as an integral part of the kiddushin or not?

 

            If Reuven married Leah by the method our gemara is discussing - he gives the money but she makes the declaration - according to our gemara there is a safek whether or not she is married.  What would be the law if Shimon now came and gave her money in the same manner - when again she made the declaration?

 

            If the safek of the gemara is a question how to interpret the reality, then Leah will need a divorce from both men.  It is possible that Reuven intended to marry her, in which case she is married to Reuven.  It is also possible, however, that Reuven did not intend to marry her but Shimon did, in which case she requires a get from Shimon.  If the safek of the gemara relates to whether or not a declaration is an integral part of kiddushin, then Leah will require a get from Reuven only.  If the declaration is not an integral part of kiddushin, then Leah is married to Reuven and the kiddushin of Shimon has absolutely no effect.  If the declaration is an integral part of the kiddushin, then Leah is married neither to Reuven nor to Shimon, and, therefore, she does not require a get from either of them.

 

            The gemara (6a) discusses a case where the man gives money to a woman within the context of a discussion dealing with their marriage.  In this case the man's intention is presumably clear, however, a formal declaration on his part is absent.  Therefore, at first glance, we would assume that the validity of the kiddushin in this case is dependent on whether the amira is merely informative, or an integral part of the act of kiddushin.  The gemara concludes that in such a case the kiddushin is valid.  If our analysis is correct we would be forced into accepting the opinion that the declaration is merely informative.  However, this conclusion contradicts those Rishonim who interpreted the safek of the gemara based on the understanding that the declaration is integral.

 

            Apparently these Rishonim understand the context of the previous discussion as a form of declaration on the man's part.  See for instance the Meiri [s.v. Tzarikh] who requires that the discussion must include an explicit statement of the man which would be valid as a declaration of kiddushin.

 

            The issue of the role of the declaration, is also critical regarding the sugya of yad le-kiddushin (Nedarim 6b), and the related sugya of yadayim she'ein mokhichot (Kiddushin 5b).  This, however, will be left up to you.

 

Summary:

 

            We saw 3 ways of understanding the gemara's safek in the case where a man gives money to a woman, but she makes the declaration of marriage:

 

1. A safek in the case: did he intend to marry her, or perhaps he was only giving her a gift.

 

2. A safek in law: does the requirement that marriage be 'ki yikach' include just that the man give the money, or that he make the declaration as well.

 

3. The man must make the declaration, but the safek is whether or not his silence can be interpreted as speech or not.

 

            We then analyzed the various Rishonim, and investigated their explanations of the gemara's safek in this light.

 

 

SOURCES FOR NEXT WEEK'S SHIUR:

-----------------------------

 

Next week's shiur will deal with two subjects:

 

A. Kiddushin be-milveh - using a debt as kesef kiddushin.  The gemara is on daf 6b; the main Rishonim are Rashi, Tosafot, the Ramban, and the Rashba.  In addition you should see:

 

1. Kiddushin 47a ("Ha-mekadesh be-milveh") "Metivei ..."; Rashi and Tosafot Ri Ha-zaken ad. loc.

2. Ketubot 74a.  Rashi and Tosafot s.v. Ha-mekadesh.

3. Rambam, Hilkhot Ishut 5:13; 5:15; Hilkhot Mekhira 7:4.

4. Ramban 8a s.v. Maneh; s.v. U-vemashkon.

5. Rashba 47b s.v. Le-olam.

 

            Try and answer the following questions as you prepare the sugya.

 

1. What is the object of the kiddushin in a case of milveh, the money or the debt?

 

2. What precisely is the problem of using a debt for kiddushin?

 

B. Matana al menat le-hachzir.  The shiur will not discuss this sort of kinyan in general; however, for background, it is recommended you see the Ketzot 241:6.

 

Regarding kiddushin with this sort of kinyan, the main Rishonim are Tosafot, the Ramban and the Rambam (5:24).