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The Crown of Halacha

Defining Kinyan Kiddushin – Part I

This entry is part 4 of 12 in the series Rav Bloomenstiel

From Shu”t Sheves Achim by

Rav Avraham Chaim Bloomenstiel

 Question:

I am 26 years old and unmarried. Although my friends have offered to introduce me to men my age, I cannot even bring myself to date. When I was in high school, one of my rebbeim taught us that kiddushin is basically the “purchasing” of a wife by a man. I have a very strong identity as a Jew, and a very strong identity as a woman. I cannot bring myself to be “owned” by anyone. Why date if in the end I will just have to “sell” myself to a man like a car or a cow? I have talked to enough Rabbis who have only given me pat answers about how “beautiful” marriage is and that all my disgust will “disappear when I meet the right guy.” I believe in Hashem, I am observant and believe in the mitzvos, but I cannot sell myself to a man as part of a supposedly holy arrangement. If a woman just sells herself to a man, then it superficially looks just like prostitution. I want to know that I am wrong. I want to know that a Jewish marriage is more than that – but I don’t want inspiration and pat answers, I want facts.

Thanks in advance for any help or guidance you could offer.

-Aliza
New Haven, CT

Answer:

Shalom u-Veracha. Apologies for taking so long to reply, but this my first opportunity to tend to correspondence since Pesach ended.

I assure you that your Rebbeim, although they possess Torah and are well meaning, have erred in their description of kiddushin. It is impossible to characterize marriage as a mere financial purchase. Though there are a few in the literature who adopt such a description, their view is difficult to resolve as, im yirtzeh HaShem, I hope to demonstrate.

The problem of defining kinyan kiddushin comes down to the use of the term nikneis in the first mishna in maseches Kiddushin. The word itself implies that a woman is koneh, bought, just as one would be koneh, buy, actual property; you give her money, a document, and she is yours.

There is a gemora in Kesubos 56a that bolsters the idea of marriage as a “man-owning-woman” arrangement. The Gemora there asks if a woman who is engaged via kiddushin to a kohen may eat terumah. The law is that all members of a kohen’s family can partake of teruma. At this point she is only engaged, not fully married. The Gemora responds, though, that since he did kiddushin she is kinyan kaspo, his purchase by way of kinyan, and since she is his property she can eat teruma.

This Gemora gave rise to a view amongst some Rishonim that, indeed, a man marrying a woman is no different than a man buying an item. This opinion is stated most clearly by the Rosh in the Tosafos ha-Rosh to a gemora in Kesubos 2a-2b. The Gemora discusses a wedding delayed due to the bride’s health, and concludes that the delay is either the groom’s doing because of his bad mazel, or alternatively, it is the bride’s fault for not taking better care of herself. The conclusion is there are some cases in which it is not possible to assign blame to any one party. The Gemora, derech agav, mentions that a similar case is when one’s plow-animal cannot work because it is sick. It could be the farmer’s bad luck, or the animal’s fault. The Rosh, surprisingly, seizes on the two cases and explains the gemora as drawing a parallel between one’s bride getting sick and one’s animal getting sick. Thus, he says that one owns his bride like he does his animal!

From this example, is it undeniable that there are some who view marriage as a simple man-owns-woman arrangement. However, the Rosh’s remark is strange in two respects: 1) It is in the wrong place; it would have been better to have put it in the first mishna of kiddushin or the aforementioned gemora in Kesubos – they have far more potential as proofs to the Rosh’s viewpoint, and 2) The view that kinyan kiddushin effects the ownership or purchase of the woman is, simply, a halachic impossibility. Why?

First, the Gemora itself states explicitly that the man does not own the woman. In Kiddushin 6b, the Gemora draws some comparisons between a get and a get shichrur, which is used to free a servant. The Gemora states that if non-specific language is enough to free a servant, who is owned by his master, then certainly non-specific language in a get should be enough to release a woman, who was never owned by her husband. This rationale is recognized as the foundation for many laws in hilchos gittin (see the Ayn Mishpot Ner Mitzvah to this Gemora).

Again, Ravina in Gittin 77b explains that in marriage a husband has certain rights to his wife’s property, yet he does not own the woman herself. Why? In order to divorce a woman, she has to take possession of a get, a document of divorce that is given to her by her husband. However, if she is the husband’s property, then anything that she owns, he owns. So she can never take possession of a get! Ravina answers that the marriage gives the husband certain rights to her property, yet not to her person. From this viewpoint, part of the kiddushin kinyan is that that it effects a merging of their personal property. However, he has no claim to her person.

The Ramban, in his hashmatos to Gittin 9a, following this line of thought, demonstrates further from the laws of gittin that marriage is not the ownership relationship mentioned by the Rosh. The divorce document, the get, has certain unique halachos distinguishing it from other monetary instruments that may be presented to a court. For example, a shtar for transfer of money or property must, according to halacha, be checked, double checked, and notarized before it can be executed or presented to a court. However, a get is not held to this same standard. A get doesn’t require such rigorous review unless one of the parties explicitly calls for it. Why? As the Ramban explains, there is no transfer of property in a get because a woman isn’t owned by her husband, she is not property, and this is not the condition of marriage.

Continued next week…

Series Navigation<< Gevinas Yisroel vs. Gevinas Akum: The Making of Kosher Cheese IIDefining Kinyan Kiddushin – Part II >>
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