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The Israel Koschitzky Virtual Beit
Midrash
GEMARA KIDDUSHIN Shiur #02:
Kiddushin as a Kinyan by Rav Moshe
Taragin
The first mishna in Kiddushin, in describing the process of effecting
kiddushin, employs the term 'nikneit,' which literally means that the bride is
'acquired' or 'obtained' (Ha-isha nikneit beshalosh derakhim - 'a woman is
acquired in one of three ways'). In
fact, this term is reiterated several times throughout the masekhta. The gemara (3a) rejects the validity of
a kiddushin in which a man offers a woman something of trivial value (pachot
mi-shaveh peruta) because 'in exchange for this meager amount a woman will
refuse to allow herself to be acquired.'
Several additional gemarot (7a and 46a) echo this same concept - a woman
is acquired during the process of halakhic kiddushin. These blatant references, indeed,
present the process of effecting marriage as akin to standard kinyan - the
acquisition of portable items (metaltelin) or land (karka). In fact, the subsequent mishnayot
towards the end of the first perek, actually discuss kinyan on karka and
metaltelin. Are we to accept this
conclusion - that kiddushin entails acquisition of a woman similar to the
purchase of inanimate objects? We
would like to probe even further into kinyan kiddushin and ask a second
question. Even if the process of
effecting marriage includes some degree of acquisition of the bride by the
groom, is this process at all balanced by a complementary motif? Is there another component of the
kiddushin process besides acquisition, one which is unique to
marriage? Kinyan:
We will begin by tackling the first question. Clearly, the process of kiddushin
entails some sort of kinyan (acquisition).
This much is clear from the wording of the first mishna and the
subsequent iterations stated above.
In fact, according to Rambam at least, this novelty - to acquire a woman
before actually marrying her (at the time of the Nisu'in) - was innovated by the
Torah. He writes in the first
halakha of Hilkhot Ishut that although the institution of marriage predated Har
Sinai, once we received the Torah we were instructed to first acquire a woman
and only later to marry her.
Evidently, some form of kinyan characterizes the kiddushin process. What is not clear, however, is the
nature of this kinyan and the degree of ownership it creates, in comparison to
standard ownership of inanimate objects.
The gemara in Ketubot (56a) addresses the eligibility of a woman who has
become 'engaged' to a Kohen to begin eating Teruma. [Engagement (eirusin) is the state
consequent on kiddushin and prior to nisu'in. Although an 'engaged' woman cannot yet
live with her fiance, she may still eat his priestly gifts if he is a
Kohen.] The gemara asserts that
since she is considered 'KINYAN kaspo' (his purchase) she may begin partaking of
this teruma. The gemara apparently
thinks that this term taken from Vayikra 22:11, which denotes monetary
acquisition, applies to kiddushin as well.
The gemara, therefore, designates the bride as the kinyan of the husband,
a state which allows her to eat teruma along with her spouse, who is a Kohen.
The Rishon who most clearly articulates this position - that the kinyan
the husband performs to marry his wife is comparable to standard kinyan - is
Tosafot Rosh in Ketubot. The gemara
in Ketubot (2a-b) considers a relatively unrelated issue: who is to be responsible if the wedding
was delayed due to the wife's ill health?
On the one hand she is sick, and so, responsible; but on the other hand,
maybe the husband's poor 'luck' struck his wife. The gemara draws a casual parallel
between this instance and a case where someone's property is ruined and
therefore cannot produce. The Rosh,
reads this statement literally claiming that a woman is the POSSESSION of the
man in the exact same manner that an inanimate object is owned by its
owner. If the Rosh's language seems
striking, remember that this view emerges from the simple reading of our mishna
in Kiddushin, and from the terminology of the gemara in Ketubot
(56b). SUMMARY: The presence of kinyan as a defining
feature of kiddushin is almost incontrovertible. The Rosh, based loosely upon the gemara
in Ketubot (2b) equates this kinyan with standard acquisitions of inanimate
objects.
By contrast, several gemarot appear to carefully delimit the scope of the
ownership which a man has of his wife.
The gemara in Kiddushin (6b) compares the respective texts of a 'get'
(divorce contract) and a 'shtar shichrur' (a contract which liberates a slave)
and states: "If [inconclusive
language] is sufficient to free the slave, whose body the master owns, it should
certainly suffice to divorce a wife which the husband doesn't really own." This gemara discriminates between the
depth of ownership enjoyed by the master of his slave and the extent of the
kinyan of a husband of his wife.
Similar regulation of this kinyan emerges from the gemara in Gittin (77b)
which addresses the riddle of giving a 'get' to a wife. To effect the divorce she must receive
possession of the 'get;' however, as long as she is married, all her possessions
transfer automatically to the husband.
Though the gemara itself takes this as a serious problem, Ravina
challenges the very premise of the question. Since the husband does not literally own
HER, but rather her INCOME, there should be no problem in her directly acquiring
her 'get'.
The spirit of these two gemarot is aptly captured by a statement of the
Ramban. In his comments to Gittin
(9a - in many volumes of the Ramban this commentary can be found in the
Hashmatot) he addresses a disparity between a 'get' and a regular monetary shtar
(document). Generally, as the shtar
effects a transfer of money, we must always double check its validity and issue
a thorough notarization before allowing it as evidence. This conforms to the general principle
that when extracting money the highest standards of testimony are applied -
"ha-motzi mei-chavero alav ha-re'aya" (the one who seeks to extract money from
another, must provide the proof).
As a 'get' does not involve this transfer of ownership [because the
woman, even when married was not owned by anyone] these high standards do not
have to be enforced. Unless the
husband explicitly questions the validity of a 'get' we will not concern
ourselves with double-checking its authenticity, and instead we will just assume
it. Again, as in the comments of
the Rosh cited earlier, what is arresting is not only WHAT the Ramban says but
HOW he says it. SUMMARY: We have isolated two distinct positions
in the Rishonim. One views the
nature of kinyan kiddushin as tantamount to standard kinyanim; the other
deliberately discriminates between them.
Each position is buttressed to some degree by a statement of the
gemara. It bears repeating that
each position recognizes some aspect of kinyan, ownership, that exists within
the state of eirusin; they only dispute its proportion. Can this kinyan between two people in
any way be compared in its intensity to a standard kinyan on an inanimate
object? Kinyan versus
Ishut:
Turning now to the second question we posed at the outset, we must
recognize that whatever degree of kinyan exists in marriage, it surely interacts
with another factor. Nothing from
the world of kinyan can express the essence of kiddushin, which is basically an
interpersonal relationship of husband and wife which, among other things,
permits intimate relations.
Alongside any kinyan exists a factor unique to the process of kiddushin,
one which might be labeled 'ishut' - the creation of an interpersonal
relationship between Man and Wife.
Possibly the gemara which most clearly emphasizes this factor can be
found in Nedarim (28a). The gemara
examines an interesting phenomenon whereby the state of kedusha (consecration
for the Temple) within trees donated to the Temple automatically dissipates
after they are cut. Seeking to
refute this halakha the gemara posits that such halakhic states cannot
automatically disappear without active absolution [such as pidyon (redemption)
or me'ila (embezzlement)]. To
support its contention the gemara cites the case of ishut which cannot merely
dissolve on its own. Responding to
this question the gemara discriminates between trees which are merely the
monetary possession of hekdesh (the Temple treasury), and a woman who possesses
what the gemara refers to as 'kedushat ha-guf,' a personal status of designation
to her husband. Whatever form of
kinyan the husband does or does not enjoy, she is much more than a possession -
she is also his wife (and he her husband).
Tellingly, these halakhic labels engender substantive halakhic nafka
minot (ramifications) which in no way stem from the kinyan. This second factor - ishut - affects
both her prohibition to others and the couple's mutual marital obligation. Ishut, then, is an additional aspect of
kiddushin, that goes beyond the kinyan discussed earlier.
Having established the necessity of each of these factors (kinyan and
ishut) our next question must be - which is primary within the process of
effecting kiddushin. Although,
ULTIMATELY, each of these dimensions emerge, we might define the process of
kiddushin as DIRECTLY creating one particular aspect. The complementary aspect might
subsequently evolve ON ITS OWN.
Often within halakha we discern this regarding complex phenomenon whereby
one aspect is caused directly while its related factor evolves
automatically. Is kiddushin
primarily a process of kinyan (which later spurs ishut), or is it primarily a
process meant to trigger a dynamic of ishut (which then assumes a form of
kinyan).
In many respects this question revolves around a semantic problem. When the Torah describes the kiddushin
process "ki yikach" (when a man takes a wife) how does it intend the word
'yikach'? Does it refer to
'transaction' (as in the case of Efron's field), or does it intend some other
form of taking. Throughout the
Torah "yikach" or "kach" refers to many different actions - from sexual
engagement to verbal persuasion. In
this instance, does it mean perhaps, the taking of a woman to become one's
wife? The Biblical ambiguity is
perpetuated in the gemara itself.
The mishna couches kiddushin in the language of kinyan "ha-isha
nikneit". The second perek
announces "ha-ish mekadesh" - 'a man can marry' - utilizing a very different
image or model for kiddushin. The
gemara itself (2b) considers this issue and recognizes that 'mekadesh' is a
language established by the Chakhamim to reflect kiddushin and its similarity to
the world of hekdesh. Clearly, this
term (and the implicit reference to the world of hekdesh) underlines the more
interpersonal dynamic of ishut and not the standard kinyan of monetary
transactions. When someone
dedicates a sacrifice he is, first and foremost conferring a STATUS of hekdesh
on the animal, which enables various prohibitions and commandments unrelated to
ownership. Similarly, then
kiddushin might entail the conferring of status rather than the transfer of
ownership. How we choose to view
the process of kiddushin (kinyan or ishut) might very well be based upon the
term we use to define kiddushin (kinyan or kiddushin).
This prospect might help explain a startling consideration raised in the
Yerushalmi (Kiddushin 1:1). The
Yerushalmi, goes out of its way to assure us that each one of the three
techniques of effecting kiddushin listed in the mishna is sufficient. One can perform kiddushin through money,
or shtar (document), or biah (relations); all three are not necessary. Why might we have thought
otherwise? Why would we have
required more than one trigger for kiddushin? Could this prospect reflect the dual
nature of kiddushin as both a kinyan and ishut? Since kiddushin is multidimensional, we
might have thought that in order to establish each facet of kiddushin, a
SEPARATE process is necessary. We
might have reasoned that money is necessary to enact the monetary dimension of
kiddushin, while biah creates a personal relationship of man and wife. Shtar installs her status as a married
woman and the accompanying prohibition to others (much as a 'get' removes that
status. Quite possibly, the
Yerushalmi's hava amina (original thought) reflects the multi-dimensional
quality of kiddushin.
Even though this possibility is ultimately rejected, the underlying theme
still remains. The state of
kiddushin continues to be a multi-faceted entity. However the process of effecting
kiddushin only actively triggers one aspect, while the complementary aspect
evolves on its own. What is not
exactly clear is which aspect is actively created and which emerges on its
own. This question will surface
again and again throughout Massekhet Kiddushin: Does the process aim to create a kinyan
or to establish the terms of ishut?
It is important to note that this question might have multiple answers
based upon the selected process (kesef, shtar, or biah) or based upon which
verbal declaration is used. As this
shiur is introductory in nature I will leave the question unanswered and hope
that it will be addressed in future shiurim. FURTHER
RESEARCH: ----------------- 1. Regarding the definition of 'kinyan
kaspo' and the ability to begin eating teruma - see Avnei Milu'im in his
Teshuvot #17. 2. Regarding the differences between the
gentile slave and a wife see Tosafot Kiddushin (24a) d"h Ve-rebbi Eli'ezer (from
the words "VeRi omer ....le-matana). 3. See Rashba Yevamot (70a) who addresses
the kinyan which exists after kiddushin. 4. Ran in his comments to Kiddushin (5b)
rules that in cases of safek (doubtful) kiddushin, we rule based upon chazaka
(previously established status) just as we do in questions pertaining to money
matters where we follow the chezkat mammon (established ownership). Is this an implicit association of
kiddushin with kinyan? 5. See Rashba's comments to Kiddushin (6b)
and the gemara which discusses 'ribit' in the case of kiddushin.
Coordinator's
Note: -------------------
Since the acquisition of real estate is one of the sources of kiddushei
kesef, a brief analysis of kinyan karka would be instructive. Real estate, no matter how valuable, can
be acquired through the transfer of a single peruta. There are two basic conceptual
approaches to this halakha. The
Sema (Choshen Mishpat 190:1) claims that ownership is attained through
payment. The peruta merely
symbolizes the initial phase of the entire payment. The Taz, however, argues that the
transfer of the peruta is merely a formal act that (perhaps illustrates and
thereby) creates ownership. The
peruta is used only as a tool for effecting a kinyan and is therefore unrelated
to the future payment. The linchpin
of the Taz's argument is our gemara in which kinyan karka forms the source of
kiddushei kesef. The Taz claims
that it is absurd to refer to kiddushin in monetary terms relating to value and
payment. A woman is in no way a
commodity to be bought. Therefore
the peruta can not be viewed as a quid pro quo exchange in the acquisition of a
wife.
If these two opposing approaches are applied to kiddushin, it is only
according to the Sema that we can claim that some form of actual acquisition is
being effected through kiddushin.
However, according to the Taz, the kinyan aspect in kiddushin may merely
be a borrowed term referring to the creation of a parallel but totally different
legal framework which can be applied to husband-wife relationship. We will see this approach, which differs
significantly from the approach presented in the above shiur, developed further
in next week's shiur. Moreover,
this issue will be discussed periodically throughout the course of the
year. SOURCES FOR
NEXT WEEK'S SHIUR: ------------------------------ TOPIC - Shveh
Kesef a. Tosafot (2a) d"h Bi-peruta, first half
only b. Ramban (2a) d"h Be-dinar [Note that
there is a misprint in the R
Isser Zalman
Meltzer edition: read "beGira'on" instead of "bePira'on"] c. [Optional:
Avnei Milu'im (29b) d"h Ve-nireh] d. [Optional:
Gemara Kiddushin (7b) "Hahu gavra ... bitlesar"] e. The shiur in
two weeks' time will deal with "Chalipin be-kiddushin," so please begin
preparing the gemara until 3a. Questions for
next week's shiur: --------------------------------- 1) In what sense are valuable commodities a
valid substitute for currency, and in what sense are they
not? 2) Can there be a distinction between
different halakhic areas regarding the replacement of currency by an object of
monetary equivalence? 3) How does the approach of Tosafot differ
conceptually from that of Ramban? |