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The Crown of Halacha

Defining Kinyan Kiddushin – Part II

This entry is part 5 of 12 in the series Rav Bloomenstiel

From Shu”t Sheves Achim by

Rav Avraham Chaim Bloomenstiel, shlit”a

Continued from HERE

Let us return for a moment to the gemora that started this whole discussion; the gemora in kiddushin that states isha nikneys b’shalosh drakhim, a woman is acquired in three ways. One of those ways is by contract, kesubah. Now, who writes the contract? As we know: the husband. Why is this significant? The laws of contracts state that a contract is always written by the seller, by the one who receives the money, never by the buyer. In the case of marriage the one receiving the money is the woman. So, according to business law, she should write the kesuba! Based upon this point, Tosafos (Kiddushin 5a) states that the marriage contract isn’t comparable to a contract for purchase of property. The Meiri to Gittin 9a, the Rashba to Kiddushin 6b, s.v. Uminayin, and others as well learn out from further features of the kesuba that a wife cannot be the “property” of the husband and that the contract is not one of buying the bride.

The Rambam in Ishut 3:11 emphasizes this even further, stating that in a marriage the man does not own the person of the woman. She is not in jail; rather she can come and go as he pleases.

So, what we have now is a strange situation. On one hand, there are a few places in the Gemora explicitly referring to the marriage process as a kinyan, an act of acquiring a wife, and some that imply that marriage is no different than buying a car. However, when we look a little further, we find that this view simply doesn’t work. The normal laws of contracts do not apply to kesubos or gittin as they do to monetary transactions. Also, the woman’s status simply cannot be one of owned property; such a thing doesn’t work in halacha.

This disparity carries over into the Rishonim as well. The Rosh holds that a woman is, apparently, owned. The Ramban, Tosefos, and others hold that she it not and that it impossible to view marriage this way.

We now have to re-orient the discussion and view this as a mystery to be solved: why does the Gemora use the language nikneis implying that a woman is acquired, when it is not possible for a woman to be owned by her husband?

Let’s go back to the Gemora – in maseches Kiddushin it states isha nikneis b’shalosh drakhim. If one turns to the second chapter of Kiddushin the mishna there also speaks about marrying a woman, but uses the term ha-ish mekadesh – a man “sanctifies” a woman. If marriage is truly a business deal, where she is bought by the man, then why not be consistent and write “ish koneh” – a man acquires? The change in terminology is very significant and is the starting point to answering our question.

Kinyan is usually translated as “acquiring.” In truth, this is a misleading translation. The term kinyan in halacha has broader meaning. Kinyan refers to an act affecting a change of halachic status, whether that status is one of ownership or something else. Essentially, there are two different types of kinyan (see the Chidushe ha-Ramban to Kiddushin 16a). The first is a kinyan mamon – which refers to an act that causes a change in property or ownership. For example, if one buys a camel he gives money, takes the camel by the bridle, and leads it about. This act is a kinyan meshicha, a kind of kinyan mamon signifying a change in halachic status (ownership). The other type of kinyan is a kinyan issur which has very little at all to do with ownership. This type of kinyan deals with changes in ritual or personal status. So, while every purchase or sale is a kinyan, every kinyan is not a purchase or a sale.

Having clarified the boundaries of the term kinyan, let us look again at the Gemora. When the mishna at the beginning of Kiddushin states that a woman is nikneis, it is discussing how the kinyan is affected (how her change of status occurs). Later, in the 2nd perek, the mishna refers to marriage as mekadesh. When the mishna uses nikneis, it is using it in the broad sense of the term kinyan: “The change of status of a woman is effected by three ways…” The second time marriage is discussed the term is mekadesh – thus focusing the definition on what kind of kinyan we are talking about, a kinyan issur – a change in ritual status, not a change in ownership.

So, it appears that the giving of a peruta, a monetary amount to the woman, and the giving of a document are formalities that effect a change of status, yet that status is not one of property, but one of sacrament. It is a change of holy status, which has no relationship to money or property whatsoever. The Gemora itself makes this point very clearly in maseches Nedarim 29a. The Gemora addresses a person who declares that a certain orchard of trees is hekdesh to the temple until they grow and are cut down. Now, when something is declared as hekdesh, individuals cannot get benefit from that object, it is only for use for the temple, for holy purposes. If one wishes to undo the consecration, he can redeem the trees from their status with money. At that point, the trees are no longer considered holy, and he could use them for whatever he wants. Now, in our case the person made a condition, “I am consecrating these trees until they are felled, at which point they are not holy.” It appears as though the person is consecrating upon a condition: once they are felled, their kedushah merely departs, without the act of redemption. In the gemora, Rav Hamnuna asks how this is possible, and poses the following surprising question: “If one married a woman saying: ‘today you are my wife, yet tomorrow you are not,’ then does she need a get on the following day, or does her status merely revert?” Rav Hamnuna is drawing a parallel between sanctified trees and the sanctity of a woman. Rava, however, gives a forceful reply: “Are you trying to compare kedusah of trees which are kedushas mammon (their value is holy) to a wife who has intrinsic kedusha? There is no comparison!” The Gemora rejects the idea of comparing a woman to property even when it comes to sanctified property!

After all this, though, we are still left with an obvious question: If the change in status is unrelated to monetary matters, then why is the marriage affected by a perutah? As we know, the Gemora Kiddushin learns that marriage is affected by a peruta from a gezera shava from when Avraham buys the cave of Efron. Essentially, the Gemora is learning that there is a common side between the kinyan mamon used to affect a transfer of real estate and the kinyan issur used to marry a woman. What is the common side? The common side is that a peruta effects a change in status.

In the Shulchan Aruch, there is a fascinating exchange between two Acharonim clarifying the nature of this peruta. A question is asked: “Why can you affect the transfer of land simply by giving the owner a peruta?” The Sema, in Shulchan Aruch, Choshen Mishpot 190:1 explains that land is acquired solely through money. Giving of a peruta is not a formality to affect kinyan, rather it is simply placing a down payment on the land. In this sense the peruta is an instrument of financial pragmatism. The Taz, however, rejects this view. He maintains that the peruta given to purchase land is fundamentally irrelevant to the cost of the land; it is not a down payment. Just as when a contract is agreed upon there is a kinyan sudar, an act to effect a change in status, so too there is a formal act performed by land. That act is the exchange of a peruta. One is simply giving a coin to cause a change in halachic status, not purchasing a mere 1-peruta’s worth of land. The giving of the peruta is not part of paying for the land; rather it indicates a contractual agreement to a change of status. From where does the Taz bring his proof? The Taz points out that we learn kiddushin from real estate. It is impossible to view the peruta as part of a payment for the land, because in essence that would mean that marriage is the purchasing of a wife, a notion the Taz dismisses as ridiculous! A wife cannot be bought and sold, and a woman doesn’t belong to her husband! Rather the peruta must be only be a formal act to signify a change of status independent of whether we are talking about a kinyan mamon, a purchase, or a kinyan issur, a change in ritual status.

So, we see that it is not just that marriage is not considered an arrangement of ownership; rather, it is impossible for such a relationship to exist within the context of halacho!

We also see that a kinyan is an act that affects a change of status, and that the nature of the kinyan is not necessarily related to the status that is confers. The kinyan of a peruta by land is a formal act that signifies a change in ownership of the land (kinyan mamon). However, by kiddushin, the kinyan of a peruta affects a change in personal status: before the woman was single, now she is married. The status of the woman as “owned” or “possessed” by her husband is not conferred by the act of kiddushin.

While certain Rishonim, the Rosh in particular, attempt to describe the act of kiddushin otherwise, their opinions are not borne out by careful analysis.The whole idea of the woman as “owned” or “property of her husband” falls flat if one looks at the halachic ramifications of such a proposition. Unfortunately, there are some individuals who may behave as if they own their spouse. But to do and believe so is to go against the sound teachings and reasoning of Chazal. A man who lords over his wife brings destruction to the world. Why? Because one who does such is trying to destroy a fundamental cornerstone of Jewish life – the husband/wife relationship. One who treats his wife as a possession is perverting the very halachic reality of what marriage is, and thus eroding the basis of shalom bayis.

HaKadosh Boruch Hu should give you hatzlocha in finding a husband who appreciates the sanctity and holy relationship that is marriage, as well as the treasure beyond value, price or ownership that is a Jewish wife.

Series Navigation<< Defining Kinyan Kiddushin – Part IPositioning the Bimah >>
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