Introduction to Masechet Kiddushin

Introduction to Kiddushin

לזכות לרפואה שלמה דוד בן איידל נ“י בתוך שאר חולי ישראל

Gitta Jaroslawicz-Neufeld

The last masechet in Seder Nashim deals with the first stage of marriage, kiddushin or erusin. In Hilchot Ishut, Rambam writes:

קֹדֶם מַתַּן תּוֹרָה הָיָה אָדָם פּוֹגֵעַ אִשָּׁה בַּשּׁוּק אִם רָצָה הוּא וְהִיא לִשָּׂא אוֹתָהּ מַכְנִיסָהּ לְתוֹךְ בֵּיתוֹ וּבוֹעֲלָהּ בֵּינוֹ לְבֵין עַצְמוֹ וְתִהְיֶה לוֹ לְאִשָּׁה. כֵּיוָן שֶׁנִּתְּנָה תּוֹרָה נִצְטַוּוּ יִשְׂרָאֵל שֶׁאִם יִרְצֶה הָאִישׁ לִשָּׂא אִשָּׁה יִקְנֶה אוֹתָהּ תְּחִלָּה בִּפְנֵי עֵדִים וְאַחַר כָּךְ תִּהְיֶה לוֹ לְאִשָּׁה שֶׁנֶּאֱמַר (דברים כב יג) “כִּי יִקַּח אִישׁ אִשָּׁה וּבָא אֵלֶיהָ“: וְלִקּוּחִין אֵלּוּ מִצְוַת עֲשֵׂה שֶׁל תּוֹרָה הֵם. וּבְאֶחָד מִשְּׁלֹשָׁה דְּבָרִים אֵלּוּ הָאִשָּׁה נִקְנֵית. בְּכֶסֶף. אוֹ בִּשְׁטָר. אוֹ בְּבִיאָה. בְּבִיאָה וּבִשְׁטָר מֵהַתּוֹרָה. וּבְכֶסֶף מִדִּבְרֵי סוֹפְרִים. וְלִקּוּחִין אֵלּוּ הֵן הַנִּקְרָאִין קִדּוּשִׁין אוֹ אֵרוּסִין בְּכָל מָקוֹם. וְאִשָּׁה שֶׁנִּקְנֵית בְּאֶחָד מִשְּׁלֹשָׁה דְּבָרִים אֵלּוּ הִיא הַנִּקְרֵאת מְקֻדֶּשֶׁת אוֹ מְאֹרֶסֶת: וְכֵיוָן שֶׁנִּקְנֵית הָאִשָּׁה וְנַעֲשֵׂית מְקֻדֶּשֶׁת אַף עַל פִּי שֶׁלֹּא נִבְעֲלָה וְלֹא נִכְנְסָה לְבֵית בַּעְלָהּ הֲרֵי הִיא אֵשֶׁת אִישׁ וְהַבָּא עָלֶיהָ חוּץ מִבַּעְלָהּ חַיָּב מִיתַת בֵּית דִּין. וְאִם רָצָה לְגָרֵשׁ צְרִיכָה גֵּט:

Before the Torah was given, when a man would meet a woman in the marketplace and he and she decided to marry, he would bring her home, conduct relations in private and thus make her his wife. Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must acquire her as a wife in the presence of witnesses. [Only] after this does she become his wife. This is [alluded to in Deuteronomy 22:13]: “When a man takes a wife and has relations with her….” This process of acquisition fulfills [one of] the Torah’s positive commandments. The process of acquiring a wife is formalized in three ways: through [the transfer of] money, through [the transfer of a] formal document and through sexual relations. [The effectiveness of] sexual relations and [the transfer of a] formal document have their origin in the Torah [itself], while [the effectiveness of transfer of] money is Rabbinic in origin. This process of acquisition is universally referred to as erusin (“betrothal”) or kiddushin (“consecration”). And a woman who is acquired in any of these three ways is referred to as mekudeshet or me’ureset.

A Jewish marriage is comprised of two stages: Kiddushin (While not an exact translation, the word “betrothal” is often used), followed by Nisuin. In Talmudic times (and through at least the eleventh century), these two stages could be separated by an interval of up to a year, as the bride prepared for her marriage and move into her husband’s home. During the kiddushin (also known as erusin) stage, the couple is considered legally married – she cannot marry anyone else, sexual relations with anyone else are liable for capital punishment as adultery, and the relationship can only be dissolved by divorce or the death of a spouse. However, the couple may not live together until the second stage, nisuin, when she formally enters her husband’s home (symbolized by the chuppa). In contemporary times, both stages take place at the wedding, with the reading of the ketuba (in most Ashkenazi communities) and/or a speech separating the two ceremonies (That is the reason for two berakhot over wine during the ceremony – one for each portion).

There are four main components to kiddushin:

• How kiddushin is effected

• Intent of both parties

• Requirement for witnesses

• Halachic eligibility of both parties to marry each other.

The Process of Kiddushin

The Torah (Devarim 22:13) tells us: כִּי־יִקַּח אִישׁ אִשָּׁה – If a man takes a wife. This is used to develop the paradigm for kiddushin:

• The husband “acquires” the wife (in Jewish law, acquisitions are not bilateral)

• The husband is the active party in the process

• The wife must consent to the act

The verse we cited actually introduces the laws of divorce. From this juxtaposition, we learn that there are comparisons and analogies to be made between the two procedures. For example, since a divorce is accomplished by a document (the get), kiddushin can be effected by a document as well.

In general, kiddushin is accomplished in one of three ways (daf 2a):

• כסף: The man gives the woman money or an object with monetary value and declares, in the presence of witnesses, that it is being given for the purpose of kiddushin. In the modern era, this is most often the wedding ring (although some Sephardic communities still use a coin).

• שטר: The man gives the woman a document which states that she is mekudeshet to him in the presence of two witnesses. Note that this shtar is not the ketuba, which is part of nisuin and outlines the obligations of each party in the marriage.

• ביאה: The man engages in sexual relations with the woman, telling her in advance that it is for the purpose of kiddushin. While the witnesses do not observe the actual act, they do see them enter a private place together and stay there for long enough to engage in relations. This method of kiddushin is allowed by Torah law, but Rabbinic law punishes the man who uses this with malkut (lashes), since it is seen as licentious behavior.

Note that the witnesses are intrinsic to the kiddushin, and therefore if any of these acts are performed without witnesses (even if both parties agree that an act of kiddushin took place), the kiddushin is disregarded.

Kidushei K’tana (Kiddushin of a minor girl)

As noted above, consent is required for an act of kiddushin to be effective. Since a minor is not considered capable of consent, she cannot accept kiddushin. However, by Torah law, a father may give her in kiddushin until she becomes a na’ara (age 12 years, 6 months and with two pubic hairs). The Rabbis authorized her mother or brothers to do so if the father is not alive. When she becomes a bogeret (adult), she can retroactively nullify the kiddushin by protesting.

Terminating Kiddushin

Kiddushin can be terminated by:

• Divorce

• Death of the husband

Kinyan (Acquisition)

From its discussion of kiddushin, the Gemara moves into a general discussion of the laws of kinyan (acquisition). In Jewish law, ownership of an object cannot be transferred by a verbal act alone; an act of kinyan is required. This act transfers ownership from the first party to the second. In line with this, until the act of kinyan has been performed, either side may back out of the agreement since the transfer has not legally taken place.

Categories: There are different types of kinyan acts that are effective for different categories of property. Not all kinyan acts are effective for each category. For example, to acquire land, one may pay the seller as an act of kinyan. Moveable objects (including animals) require an act of physical possession, such as lifting (hagbaa’ah) or pulling into one’s domain (meshicha).

Intent: In addition to the kinyan act, both parties must commit to complete the transaction. While this commitment is assumed when both parties execute the act of kinyan, there may be reason to doubt the commitment of one of the parties and call the transaction’s validity into question. Since minors are not considered fully cognizant of the consequences of their actions, their commitment and intent are questionable, and they may not complete an act of kinyan.

Rights and Obligations: Kinyan is also used for the acquisition of limited ownership (for example, a lease as opposed to a sale). Kinyan is similarly used in the acquisition of obligations, as in the case of a loan guarantee. Kinyan is also used to effect non-monetary transactions, such as marriage.

Slaves

The acquisition of slaves is also discussed in this masechet. The acquisition of a slave of a slave gives the owner a monetary claim in his slave; however, the extent of the claim depends on what type of slave is in question. There are two types of slaves:

• Eved Ivri: Hebrew slave. A Jew may not be sold (or sell himself) to another Jew as an absolute slave. Rather, his status is close to that of an indentured servant, who works for a fixed term (generally no more than six years) and then goes free. His servitude is “protected”:

  • He may not be asked to perform demeaning tasks

  • The master must give him food and accommodations equivalent to his own

  • He cannot be sold

  • If the master dies, only the master’s son can inherit the rest of his term

  • He is given severance gifts, known as ha’anaka

At the same time, the eved ivri has obligations to his master:

• • He cannot withdraw from his contracted period of servitude (unlike a contract worker). However, he can buy out his remaining term.

  • He can be given a non-Jewish slave woman to produce (non-Jewish) slaves for his master

If the eved ivri does not want to leave his master (or his “wife” and children) at the end of his term, and his master consents, he may extend his servitude until the Yovel year by engaging in a procedure known as retzia’a (piercing). The master pierces his ear against a door in the presence of three dayanaim. The slave is then known as an eved nirtza.

There are three classes of eved ivri:

• • Someone who is sold by the court because he was caught stealing and cannot repay the theft. His term is 6 years. A woman is not sold for theft.

  • Someone who sells himself. According to most opinions, he can sell himself for any period of time (even more than 6 years), but he cannot become an eved nirtza, does nor receive severance, and cannot be given a non-Jewish slave woman.

  • Someone who is sold to a non-Jew. If he sold himself, the Torah requires his relatives to redeem him (see Vayikra 25:49). The Gemara (daf 21a) discusses whether this applies to the other categories of slaves. This type of slave is sold until Yovel (15b).

A father may sell his daughter as a maidservant (ama ivriya) before she reaches majority. The term of her servitude is six years or until she reaches majority. The master or his son may marry her during this period. This marriage is known as yi’ud, and ends her term of servitude. The girl now becomes a full wife of the master (or his son), and the marriage can only be terminated by divorce or the death of the husband.

• Eved K’naani: Canaanite slave. Any non-Jewish slave is called an eved k’naani, based on Noach’s curse to his son Cham (Bereishit 9:25):

וַיֹּאמֶר אָרוּר כְּנָעַן עֶבֶד עֲבָדִים יִהְיֶה לְאֶחָיו׃

And he said, Cursed be Kena῾an; a servant of servants shall he be to his brethren.

An eved k’naani is considered his master’s property, and may be sold or passed on as an inheritance. However, if his master injures him and he loses a limb, he is automatically freed. If the master kills the slave, he is liable for the death penalty.

An eved k’naani undergoes a limited conversion, and is required to observe all negative mitzvot as well as the positive mitzvot in which a woman is obligated. If the master frees the slave, he or she becomes a full-fledged convert to Judaism. An eved k’naani can be emancipated by purchasing his freedom or by being given a document of manumission by his master (get shichrur).

Structure and Content of the Masechet

Chapter 1: 2a- 41a	הָאִשָּׁה נִקְנֵית	How a woman is betrothed and released Laws of acquisition (kinyan) Mitzvot of parents and children Differences in obligation (men/women; in Israel/outside of Israel)
Chapter 2: 41a-58b	הָאִישׁ מְקַדֵּשׁ	Agency (shelichut) and kiddushin Items used for kiddushin Conditions at the time of kiddushin
Chapter 3: 58b-69a	הָאוֹמֵר	Conditions and kiddushin Situations with a mistake or uncertainty Permitted and forbidden unions Status of children born of these unions
Chapter 4: 69a-82b	עֲשָׂרָה יוּחֲסִים	Status of children born of permitted and forbidden union Prohibition of yichud (seclusion with a woman other than one’s wife)

Hoshea 2:21-22:

וְאֵרַשְׂתִּיךְ לִי לְעוֹלָם וְאֵרַשְׂתִּיךְ לִי בְּצֶדֶק וּבְמִשְׁפָּט וּבְחֶסֶד וּבְרַחֲמִים׃וְאֵרַשְׂתִּיךְ לִי בֶּאֱמוּנָה וְיָדַעַתְּ אֶת־ה׃

And I will betroth thee to Me for ever; and I will betroth thee to Me in righteousness, and in judgment, and in loyal love, and in mercies. And I will betroth thee to Me in faithfulness: and thou shalt know the Lord.