The Israel Koschitzky Virtual Beit
Yeshivat Har Etzion
based on a
shiur by Rav Mordechai Friedman
The gemara (Kiddushin 5a) relates a dispute regarding the use of chuppa,
standing under the marriage canopy, to effect marriage. Rav Huna says that chuppa, although
normally used to create nissuin, can also be used to initiate eirussin. [The
halakhic marriage process entails eirussin (=kiddushin, betrothal), and only
then the final stage of nissuin, marriage.] He bases this premise on a kal va-chomer
[a fortiori]: We see that kinyan kesef (monetary acquisition) can't finalize
marriage (i.e. create nissuin), yet, it can initiate it (i.e. create
eirussin). So chuppa, which we know
can create nissuin, surely can create eirussin.
Rava (5b) refutes this kal va-chomer by pointing out that chuppa can only
finalize marriage after, or in conjunction with, a previous
When we see this gemara we might feel uncomfortable with Rav Huna's loose
application of the kal va-chomer.
Intuitively, we might feel that it is not valid to compare dissimilar
types of kinyanim, methods of acquisition.
Without going into a full explanation of such usage of the kal va-chomer,
let me point out that in the first few pages of Kiddushin, the gemara employs
this method on numerous occasions.
(For example the gemara entertains the idea that through a kal va-chomer
we might derive that you can acquire a shifcha using kinyan
Yet, this intuitive objection seems to be exactly what Rava is pointing
out. Does he reject the entire
system of applying kal va-chomer to dissimilar kinyanim?
Abbaye answers Rava's objection by slightly changing the wording of the
kal va-chomer, thereby retaining the assumption that Rav Huna's type of kal
va-chomer is valid in principle.
What, in essence, is the true machloket between Rav Huna (and Abbaye),
A better understanding of the nature of chuppa will help us understand
both Rava's and Rav Huna's opinions.
Until now, we have assumed that chuppa is a kinyan, consisting of a
ma'aseh kinyan (acquisitory act) which triggers or stimulates the gemirut da'at,
resolution of intent, of the man and woman. In truth, this might not be the
case. R. Chaim Soloveitchik
(Hilkhot Yibbum 4:16) points out the difference between what he calls "da'at,"
resolution, and "kavana," intent.
"Kavana" is the mere consciousness of doing any particular halakhic act,
while "da'at" is a person's willful decision to effect a "chalot," a change in
halakhic status. In kinyanim, R.
Chaim holds, this "da'at" or "gemirat da'at" plays the central role of causing
the chalot. It is the ability to
anticipate the abstract concept of a new halakhic status which differentiates a
mature intellect from that of a child's (katan), and hence, halakhically, a
minor does not have "da'at."
There are, however, many instances in halakha where a chalot can occur
without da'at. Specifically, there
are areas where once all the halakhic requirements are fulfilled, the Torah
itself, as it were, causes the chalot.
R. Chaim gives the halakhic status of a sefer Torah as an example. The prerequisites are writing with ink,
on parchment, and mental recognition that you are writing a Torah scroll and
God's Holy names. If those
conditions are present, the scroll takes on the halakhic status of a sefer
Torah. The man's da'at, willful
decision, that there occur a change in status is not an ingredient in this
halakhic equation. [This example
does not appear in print, but the basic ideas do appear in Rav Chaim on the
Rambam, Hilkhot Tefillin 1:15.]
[A nafka mina (ramification) between these two paths to establishing a
chalot, is the ability to make the change in status conditional (= tnai). A scribe cannot write a scroll and
suspend on some condition the chalot shem sefer Torah, the application of the
halakhic status of a Torah scroll to this parchment.]
There are, then, two different paths to a change in status, one through
man's da'at, the other without. The
term "kinyan," however, refers only to the former. For example, R. Chaim claims that the
act of chalitza, releasing a childless widow from the halakhic connection to her
brother-in-law, does not require da'at.
As a result of R. Chaim's above understanding, he maintains that chalitza
is not a "kinyan," but rather a chalot effected by the physical ceremony
together with intention - kavana - to do chalitza.
We now come to a chiddush of R. Chaim on nissuin. [ This idea appears in print only in Rav
Yosef Dov Soloveitchik zt"l's hesped for the Brisker Rav entitled 'Ma Dodekh
Mi-dod' in footnote 4.] Nissuin
falls into the same category as chalitza.
There is no specific trigger of gemirut da'at to cause the chalot
nissuin; rather the very situation of chuppa, the state of living as man and
wife, along with kavana to do nissuin, causes the chalot.
This, now, casts chuppa in a new light. We cannot categorize it as a kinyan,
since it doesn't follow the form of act (ma'aseh)->gemirut
This explains the gemara in Yevamot 107a which states that one cannot
stipulate conditions in chuppa ("ein tnai be-chuppa"). Most Rishonim understand this to mean
that the groom, although halakhically capable of making the chalot contingent to
a condition, is assumed to have dissolved this condition upon consumation of
marriage. According to R. Chaim the
gemara is straightforward. When the
chalot is not a result of gemirut da'at - a tnai cannot be
Additional support for this view of chuppa is brought by the Kehillat
Yaakov (Kiddushin #15.) In a
responsum of Rashi cited by the Hagahot Mordekhai (Kiddushin Ch. 2, #546), an
act of kiddushin was disqualified due to problems arising with the witnesses or
the value of the ring. Rashi ruled
that although the kiddushin must be repeated, the chuppa, nissuin need not
be. He proves the fact that chuppa
may precede eirussin with the following case. The arranged marriage of an orphaned
ketana (minor) by her mother must be repeated after she is a gedola (adult) -
yet her chuppa need not be repeated.
This supports R. Chaim's view, because if chuppa were a kinyan, full
da'at of an adult would be required.
The girl, a minor at the time of chuppa, could only supply kavana, but
not da'at. It must be that chuppa
is not a kinyan, but rather a process which causes a chalot without the need of
[It would appear that the Arukh Ha-Shulchan sees nissuin in a similar
way, in that he decides (Even Ha-Ezer 55:5) that chuppa does not require formal
Now that we have established a new definition of nissuin, namely that it
is not a kinyan, but rather an act which initiates the beginning of married
life, we can understand our gemara.
Rava objects to Rav Huna allowing chuppa to accomplish eirussin. For even if we accept the application of
a kal va-chomer on dissimilar or inappropriate kinyanim, if we accept R. Chaim
's understanding, chuppa is not a kinyan at all. Clearly a kal va-chomer from an act
which is not a kinyan at all cannot prove the existence of a
How do we, then, deal with Rav Huna? The simplest approach would be to assume
that Rav Huna rejects R. Chaim's understanding and holds chuppa to be a full
kinyan, needed to trigger the da'at in order to achieve the chalot
It is possible, however, to say that Rav Huna accepts R. Chaim's idea,
and still accepts the use of chuppa as kinyan.
Let us examine the three kinyanim of eirussin that are mentioned in the
mishna: bi'a, shtar, and kesef.
In an upcoming shiur on bi'a it will be shown that bi'a can be viewed as
a qualitatively different type of kinyan than kesef and shtar. We can say that bi'a relates more to the
facet of eirussin called ishut (the intimate relationship of marriage) while
kesef refers more to the aspect of kinyan.
Kesef works as a typical kinyan where the act of transferring money
triggers the gemirut da'at. It is
not unique to eirussin in its nature and its application is therefore very
Bi'a, on the other hand, is a specialized kinyan for marriage. Its actual process relates specifically
to the content of the new status it establishes. Here, the da'at, the willful decision to
establish the new state, naturally stems from the ma'aseh kinyan, which is a
genuine marriage situation of bi'a.
We set the stage, the framework, and this in turn stimulates the gemirut
da'at which causes the change in halakhic status (chalot).
It is therefore possible that Rav Huna understood chuppa in the same
light as R. Chaim (that it is not a kinyan at all) when applied to nissuin, and
yet felt it would work for eirussin.
In eirussin where a kinyan is needed, chuppa can function similar to
kinyan bi'a. The gemirut da'at is
the maker of the chalot, and situation of chuppa may stimulate the gemirut
da'at, just as the situation of bi'a does.
[This new application of chuppa to kinyan eirussin, similar to kinyan
bi'a, might depend on a machloket Rishonim on what the precise process of chuppa
actually is. The mishna does not
give us a description of chuppa, nor does the gemara. There are two main definitions found in
1. Yichud - With nissuin in mind, the bride
and groom enter a room in solitude in a situation that they could potentially do
2. Hakhnassa le-beito - With nissuin in
mind, the groom leads the bride into his house.
It would appear that this machloket is based on a dispute on the very
essence of chuppa:
It may be focused specifically on the new intimate relationship of the
couple. Thus yichud would imitate
and initiate this status.
On the other hand, chuppa might be a formal act of bringing the bride
into the groom's household.
It might be easier to see Rav Huna's 'kinyan' chuppa as parallel to
kinyan bi'a according to the view that chuppa is yichud, where a situation of
marriage is created as the beginning of the chalot.]
In summary, we started with the need to understand the dispute between
Rava and Rav Huna (and Abbaye) regarding the use of chuppa for eirussin. We reviewed the inner workings of the
various paths that lead to a chalot, a change in halakhic status. We then tried to better our
understanding of nissuin, and distinguished between the use of chuppa for
eirussin and for nissuin.
For Next Week's
Amira be-kiddushin - The
function of speech in the act of kiddushin.
1. Kiddushin 5a "Tanu Rabbanan
keitzad be-kessef ... chayshinan mi-derabbanan ."
3. Meiri [s.v. Ikkar kiddushei
4. Tosafot Rid [s.v. Ve'i ba'it
eima natan hu ve-amra hi]
5. Ritva [s.v. Natan hu ve-amra
6. Yad Rama [see Tur siman 27
(daf 49b in the Tur regular edition; page 242 in the Tur Hashalem)]
s.v. Ve-im natan hu ve-amra hi ... ein asukkim be-oto inyan"]Mishneh La-Melekh
[Hilkhot Ishut 3:2 until "u-lefi ze kasheh de-haTur"]Rambam Hilkhot Berakhot
1:11 [Kessef Mishneh at the end]
7. Ran [s.v. Tannu Rabbanan (1b
in the Rif)]
8. Tosafot cited in the Rashba
[s.v. Aval natan hu] and the opinion of the Rashba [s.v. Ha natan
Our sugya deals with the declaration [amira] of the husband at the time
of kiddushin. By means of a close
reading of the Rishonim, we will attempt to clarify whether this amira merely
functions as a means of revealing the intentions of the husband or whether it is
an integral part of the act of kiddushin.
Read Rashi, Meiri, Tosfot Rid and the Ritva and ascertain their views on
the issue. The opinion of the Yad
Rama is open to a number of interpretations - one of these is found in the
Mishna La-melekh, another may be reached by comparing our case to the world of
berakhot. The view of the Rambam is
explained by the Kessef Mishneh.
The Ran only explains his reasoning in the case where the man gives the
money and the woman makes the declaration [natan hu ve-amra hi]. Try to deduce why the declaration of the
man is important and the different possibilities why the kiddushin is not
effected in the case of natan hu v'amra hi.
Deduce the opinion of the Tosfot found in the Rashba [this opinion is not
found in the Tosfot itself].
Think about the case of natna hi ve-amar hu and the argument of the Ran
and the Behag in this regard. How
does this shed light on our question: What is the nature of the declaration of
Kiddushin 5b "Tannu Rabbanan.
We learnt in a beraita: 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 and chayshinan
What is the purpose of the declaration in kiddushin? [Based on this ,what
is the safek in the case of "natan hu ve-amra hi"?]
There are two basic approaches to answer our
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 has given her the
money as a gift or to marry her. [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 declare "You are hereby married to me." The safek in the gemara is whether the
declaration of the husband is an essential part of the kiddushin or merely there
in order to evaluate his intentions.
We will study the Rishonim to ascertain their opinions.Rashi: [s.v. hachi
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."