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The Israel Koschitzky Virtual Beit
Midrash
GEMARA KIDDUSHIN SHIUR #16:
KIDDUSHEI BI'A by Rav
Moshe Taragin
The first mishna in Kiddushin lists the three devices by which halakhic
kiddushin may be effected: kesef, shtar, and bi'a (money, contract, and marital
relations). Subsequently, the
gemara (4b) derives kiddushei bi'a from a verse in Ki Tetzei "Ki yikach ish isha
u-va eileha" (when a man acquires a woman and commences their conjugal
activities). This verse implies
that the process of acquiring a woman may be performed through the act of
marital relations. Another gemara
(9b), however, offers an alternate source for kiddushei bi'a: a verse (Devarim
22:22) which forbids a man from intimate relations with a married woman. This verse describes a married woman as
a 'be'ulat ba'al' (a woman who already maintains an intimate relationship with
another man). We will begin our
shiur with a very simple question.
What is the difference between these two sources? How might the nature of kiddushei bi'a
vary depending upon which verse it is derived from? 1. Two Understandings of
Bi'a
The first verse appears to be straightforward. The process of 'kicha' (halakhic
acquisition of a wife) may be effected by a bi'a performed as the initiation of
marriage. One might have questioned
the very applicability of bi'a to initiate marriage and particularly the
acquisitional dimension of kiddushin.
After all, kesef and shtar each have parallels in the world of kinyan,
and hence their ability to effect kiddushin is reasonable. Bi'a, seemingly a personal encounter,
would appear to have no relevance to the world of kinyan. However, based upon this verse we might
nonetheless view bi'a as a process which might engender some form of
kinyan. After all, we do recognize
a kinyan 'chazaka' (possession) which mandates performing some act which
reflects the standard relationship between the future owner and the object being
acquired. By building a symbolic
fence, for example, the owner demonstrates the type of behavior which will
characterize his future ownership of a field. Similarly, one might reason, by
inaugurating the kiddushin through bi'a, the ba'al has fingered the one act
which most accurately depicts the conjugal nature of their future
relationship. In fact, the
Yerushalmi in the beginning of Kiddushin does establish a parallel of sorts
between kiddushei bi'a and kinyan chazaka.
This would form the relatively simpler version of kiddushei bi'a - a
symbolic act meant to demonstrate ownership and thereby effect
kiddushin.
The second verse, however, is different in that it describes not an act
of acquisition (kicha) effected through the performance of bi'a (u-va eileha),
but instead a state - she is now 'be'ulat ba'al,' married to another. This might indicate a radically
different understanding of kiddushei bi'a.
Usually, within Halakha, a formal act is performed to initiate an
halakhic transformation. These acts
(ma'aseh) are highly symbolic and are meant, in part, to convey the mutual will
of the parties to establish this halakhic change. For example when performing a transfer
of ownership on a small item, an act of hagbaha (the new owner elevating the
item) encapsulates the mutual agreement of the two parties to effect the
exchange. The act is symbolic
rather than essential; the change is not engendered by what has occurred in the
physical realm as much as what has changed in the abstract. Even if the new owner returns the item
to the house of the previous owner - the item is still the new owner's since he
has symbolically acquired possession.
Of course, the degree of abstraction differs depending upon the act in
question. A ma'aseh chalipin
(handing over a handkerchief) is much more abstract than pulling an animal into
my house (meshikha). Yet, they all
share one common theme - they symbolize a change which in effect is authored by
the parties in question. The
ma'aseh is merely a device or apparatus to achieve the said
change.
Our first view of bi'a maintained that bi'a, as well as kesef and shtar,
is a ma'aseh kiddushin effecting the acquisition in an abstract manner through a
symbolic act. Might bi'a be
something different? Might it not
merely signal the start of a relationship but actually forge that VERY
relationship? Instead of operating
in an abstract realm of symbolism might it establish a visceral and tangible
relationship? Two individuals who
have actually engaged in relations for the purpose of being married are ipso
facto married. Bi'a might not be a
device intended to symbolize mutual assent to initiate a relationship, but might
instead actually manufacture the essence of the relationship itself. It might be a metzi'ut (a self-driven
reality) rather than a ma'aseh kinyan!!!
A woman who has had bi'a of kiddushin is automatically in the state of
be'ulat ba'al - MARRIED!!!
We might corroborate this possibility with an interesting Rambam. The history of kiddushin as an halakhic
act of acquisition dates back to matan Torah (the giving of the Torah). Before being mandated by the Torah,
handing money to a woman had no real meaning. The abstract halakhic system per se had
yet to be established and the various symbolic devices had yet to be
implemented. The Rambam describes
the state before matan Torah as one in which "if a man and woman decided to
marry he would bring her into his house and by engaging in intimate relations
with her she became his wife."
Bi'a, we see, had meaning as a trigger for marriage even before the Torah
was given because it isn't an abstract manner to symbolize the start of
kiddushin. Rather, it establishes
its own reality of marriage which society then validates. 2.
Ramifications
The nafka minot (ramifications) of this issue might be significant. Any symbolic act doesn't independently
accomplish an halakhic transformation but rather catalyzes that change which
ultimately is effected by the will of the parties. Hence, we require individuals who are
capable of an halakhic level of da'at, or intent. A cheresh (deaf-mute), shoteh, or katan,
being mentally unstable or immature, cannot participate in an halakhic process
of change. The Yerushalmi in
Yevamot (14:1) alludes to the possibility that while a cheresh is incapable of
effecting kiddushin through kesef or shtar, he might be capable of performing a
valid kiddushei bi'a. Similarly,
Rashi (cited by the Shita Mekubetzet in Ketuvot 73b) implies the same about a
minor. Does this not indicate that
the rules for kiddushei bi'a are different from those of a standard
kiddushin? Perhaps this shows us
that bi'a creates its own reality of marriage, and is not just another symbolic
act of acquisition. Therefore, bi'a
is not totally dependent on the parties intent, and doesn't demand a mature
halakhic author to initiate the change.
A similar distinction might stem from the ability of a Gentile to execute
kiddushei bi'a. Might a Gentile be
capable of creating a marriage through bi'a, being that the encounter per se
creates an objective state of marriage?
The Ramban (in the beginning of Ki Tetzei) asserts that the only way to
perform a halakhically binding kiddushin with a yefat to'ar (Gentile captive
from a war) is through kiddushei bi'a.
Similarly, the gemara in Sanhedrin 57b maintains that a Gentile who
commits adultery with a married woman who has already engaged in bi'a has
committed 'gilui arayot' and can be punished according to halakha. If the woman has not yet had bi'a, EVEN
IF SHE HAS COMPLETED CHUPPA, no legal adultery has been committed. This gemara confirms that only through
bi'a can a Gentile construct a marriage accepted by halakha. Obviously, these cases demonstrate the
unique nature of bi'a - bi'a is not your standard kinyan. 3. T'nai and
Shlichut
Another discussion which evinces the unique quality of bi'a is cited in
the gemara Ketuvot (74a). The
gemara suggests that kiddushei bi'a (unlike kiddushei kesef and kiddushei shtar)
must be performed in an absolute manner and cannot be hinged around a t'nai
(condition). The gemara reasons
that just like one cannot delegate a shaliach (agent) to perform kiddushei bi'a
one may similarly not forge kiddushei bi'a around a t'nai. Two questions immediately pose
themselves: Why is kiddushei bi'a different from shtar and kesef in that no
condition may be stipulated and no shaliach may be delegated? Furthermore, what common denominator
characterizes these two factors (t'nai and shlichut) that enables the gemara to
base the inability to stipulate a t'nai upon an inability to name a
shaliach?
In truth, each of these halakhot is based upon the aforementioned
principle. Symbolic acts are merely
devices or tools which are used to establish a halakhic change. Effectively, the author behind these
acts and his counterpart are orchestrating the change themselves, and only
employing the ma'aseh to trigger the change. The author retains the right to delegate
the symbolic act to a shaliach. I
may appoint another to perform the symbolic act of kinyan and still dictate that
the ownership be acquired by myself.
The ability to delegate shlichut, more than anything else, highlights the
control of the author of the act and the relatively symbolic (and hence
secondary) importance of the actual performance of that act. The ultimate change in status issues not
directly from the act but from the will of its author; as its author I may
delegate its performance to another.
In such cases I may also hinge the change upon an external
stipulation. Even though the act
was performed in full, I may, as its author, state certain contingencies which
must occur for the change to be valid.
As stated earlier, kiddushei bi'a might be different: the marriage
evolves naturally, as an independent reality of this intimate encounter. There is no one person exerting
authorial control; rather each is a PLAYER and a participant in an act which
carves out its own reality. My lack
of control is evidenced by my inability to appoint a shaliach. If Reuven performs bi'a on Shimon's
behalf, Shimon cannot be married since the marital act was not performed with
him. I cannot disassociate the
resultant marriage from its original intimate context. The inability to perform shlichut
underscores the difference between bi'a on the one hand and kesef and shtar on
the other. Lacking control over
kiddushei bi'a, I am also unable to pitch the resultant marriage around an
external condition. One who
performs kiddushei bi'a IS MARRIED - PERIOD!! He cannot stipulate an external factor
which will determine this marriage any more than a carpenter can make a table
conditionally. Regarding the actual
halakhic ruling, regarding stipulating conditions for kiddushei bi'a, there
appears to be a dispute between two sugyot. The gemara in Ketubot concludes that we
apply a broad comparison between all forms of kiddushin - "akshinan havayot
le-hadadi;" just as one may stipulate t'nai with a shtar or kesef, one may do
the same with kiddushei bi'a. The
gemara in Yevamot (15a), however, apparently understands that this ruling is
still the subject of a machloket, or controversy. 4. The Requirements of Kiddushei
Bi'a
How might this question affect the actual performance of kiddushei
bi'a? An interesting difference
from other kiddushin is alluded to by the Tosefta (1:1). Typically an act of kiddushin contains
two components - one physical and one verbal. When awarding the money or delivering
the shtar the husband recites the formula of 'harei at mekudeshet,' 'you are
hereby married.' As past shiurim
have discussed (shiur #8), the declaration plays more than an explanatory
role. It actually helps launch the
kiddushin. Would amira be necessary
when performing the act of kiddushin through bi'a? One might reason that given bi'a's
unique nature in self-starting a marriage on its own, we would not require any
declaration. Possibly we might
demand some designation. After all,
the parties must clarify their overall intent - Is this indeed intended as the
start of marriage or merely as extra-marital act (bi'at zenut)? However, we might not demand the formal
declaration of 'harei at mekudeshet;' this might be reserved for shtar and kesef
in which the person himself drives the kiddushin and does so through clear-cut
intent expressed verbally. The
Rambam (Ishut 3:5) seems to demand the identical declaration for kiddushei bi'a
as for kiddushei kesef and shtar.
The Tosefta, however, appears to discriminate, only claiming that bi'a
must be performed "be-torat kiddushin' - with the design of initiating a
marriage.
Another manner in which the unique nature of kiddushei bi'a might affect
its performance is addressed by the gemara in Kiddushin (10a). The gemara questions whether performing
kiddushei bi'a creates a state of kiddushin (betrothal, after which nissu'in is
necessary to 'consummate the marriage') or immediately creates a state of
nissu'in. On the surface, this
possibility seems preposterous!!
The parties clearly intended the preliminary state of kiddushin, and not
full-blown marriage!! Why should
the ensuing state of nissu'in, normally one which requires a separate process,
evolve automatically?
If, as stated before, kiddushei bi'a differs from other forms of
kiddushin in that it establishes an objective reality of marriage, it might be
more difficult to schedule the different stages of this marriage and to stunt them. Kesef and shtar are symbolic acts which
do not necessarily reflect the ultimate and complete stages of marriage. Driven by their authors, they can be
geared toward establishing a preliminary stage which can form the foundation of
a more complete relationship to be constructed at nissu'in. Bi'a, however, reflects a real marriage
and possibly one cannot help but reach the full stage of nissu'in after bi'a has
been performed. This argument is
especially compelling if we view nissu'in as embodying the actual marriage, as
opposed to kiddushin which expresses the abstract formal relationship. (See shiur #7.) For further
research: 1. The gemara (10a) debates whether bi'a
acquires at the beginning of the act or only upon its completion. In light of the above analysis, how can
this be explained. See Tosafot s.v.
Kol, Ritva s.v. Ibai. 2. The gemara (4b) attempts to derive
kiddushei bi'a from yibbum. How can
yibbum be a paradigm for kiddushin?
After all, yibbum takes effect despite lack of da'at, and is therefore
clearly not similar to kiddushin which requires da'at. Co-ordinator's
Note:
With this shiur on kiddushei bi'a we have completed the first section of
the first chapter of Kiddushin, which deals primarily with the ma'aseh kiddushin
and the definition of kesef kiddushin.
Upon analyzing kiddushei kesef, shtar and bi'a, it is worth noting that
each type of kiddushin may be working in its own special way. While kesef may relate to whatever
aspect of acquisition there is in kiddushin (see shiur #2), kiddushei shtar may
focus on the prohibition inherent in kiddushin (see shiur #15). Kiddushei bi'a, on the other hand, may
initiate the interpersonal relationship as expressed in this shiur. Kiddushin is, therefore, a compound
comprised of multiple factors. Each
of the three types of kiddushin relates to a separate factor which subsequently
evolves into the complex and complete whole. Each begins from a different angle but
reaches the same end result. This
analysis was developed by Rav Y. Z. Gustman zt"l (see Kuntresei Shiurim, pp.
5-22).
FROM NEXT WEEK, THE VBM WILL BEGIN THE SECOND CHAPTER OF KIDDUSHIN. The switch may offer an opportunity for
those who are interested but not yet connected, to begin a new chapter from the
beginning.
Rav Yair Kahn
co-ordinator of the VBM Kiddushin shiur |