The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
As we approach the end of Seder Nashim – the “Order of Women” in the Mishnah – we conclude our discussion of the various obligations and responsibilities involved in the marital relationship with the rules and regulations relating to the act of marriage itself. Masechet Kiddushin focuses mainly on the crucial moment when the marital relationship is formed. That is to say, it clarifies how two distinct individuals become husband and wife; how they form a new entity, that of a family. A family is not created simply by having a man and a woman live together, or even if they have children together. Such relationships certainly have significance, but they do not create the singular relationship of marriage. The close relationship of marriage creates family even without any shared blood lines or genetic material, a relationship that is, in some ways, even closer than that – in the words of the Bible they have become basar echad – one flesh, a single entity (see Bereshit 2:24). The relationship of marriage comes about by means of a formal, legal act called kiddushin.
From the perspective of halacha, kiddushin is a positive commandment whose fulfillment is dependent on the existence of the appropriate opportunity. When a man decides to marry a woman – which he must do in order to fulfill the commandment of peru u’revu (to be fruitful and multiply) – he must do so by means of kiddushin. Masechet Kiddushin does not focus of the mitzvah involved, nor on the marriage ceremony, rather on the legal ramifications of this union.
The relationship of kiddushin does not complete the marriage, since a second ceremony, called nisu’in, is what actually allows the couple to begin their lives as a married couple. Nevertheless, the kiddushin is what establishes the basic relationships and responsibilities between the husband and wife.
The details of kiddushin are not spelled out in the Torah, and they appear in the Gemara as oral traditions or are derived from a close reading of biblical passages. Although there are disagreements about details, most of the basic issues are agreed upon. There are four fundamental components of marriage according to Jewish law:
- An appropriate act of marriage – kiddushin
- The agreement and expressed desire of the man and woman to marry
- Two witnesses who are present at the moment of kiddushin
- The man and woman must be people who can marry one-another
According to the Mishnah, there are three methods that can be used to create kiddushin:
- Kesef – The man offers the woman money or an object of value, stating that it is for the purpose of marriage
- Shtar – The man gives a document to the woman that indicates that he is marrying her with this paper
- Bi’ah – An act of sexual intercourse that is performed for the express purpose of consummating marriage.
As stated, both husband and wife must enter into the relationship of marriage by their own free will. It is therefore essential that the parties must be intelligent and aware at the time of the marriage. (One exception is a case where the wife is a minor, where the Torah allows the woman’s father to arrange a marriage on her behalf.)
The role of the witnesses at a wedding is not merely to testify that the marriage took place, rather they are essential to the act of marriage itself. Without witnesses the marriage has no meaning, even if both parties attest to the fact that they exchanged vows or presents with the intention of marrying.
Finally, the husband and wife must be people who can marry each other. Marriage of a Jew and a non-Jew, for example, has no significance according to Jewish law. Similarly, if they are close relatives – arayot – the act of marriage has no meaning, although if they are merely forbidden to each other, even because of a Torah law (e.g. a kohen marrying a divorcee), the kiddushin will take effect, even though the couple will not be allowed to live together.
The first perek of Masechet Kiddushin focuses on “acquisitions” – beginning with “acquiring” a wife, and continuing with discussion of other types of purchases. This stems from the fact that according to Jewish law, marriage is a type of kinyan, involving an act of acquisition. The Mishnah teaches that a wife is “acquired” by her husband by means of three methods (the Talmud Yerushalmi makes clear that the intention is one of three methods) – kesef (money), shtar (a document) and bi’ah (sexual intercourse).
In kesef the man offers the woman money or an object of value, stating that it is for the purpose of marriage. In shtar the man gives a document to the woman that indicates that he is marrying her with this paper. In bi’ah an act of sexual intercourse is performed for the express purpose of consummating marriage.
According to the Rambam (Hilkhot Ishut, 1:2) it appears that only the second two methods – shtar and bi’ah – are of biblical origin, while kesef (which is the method most often used) is mi-divrei soferim – of rabbinic origin. Virtually all of the rishonim disagree, arguing that kesef is biblical, as well. Some suggest (see, for example, the Me’iri) that the Rambam later changed his mind, while according to others, the Rambam does not really mean to say that kesef works only on a rabbinic level. They explain that the Rambam distinguishes between laws that are clearly written in the Torah (or are derived from a straightforward reading of the Torah) and those laws that are derived from some of the hermeneutic devices applied by the Sages. Halakhot derived in that manner are referred to by the Rambam as divrei soferim even though they have the same level of seriousness and severity as laws that are clearly learned from the Torah.
Much of the first two dapim of the Gemara in Masechet Kiddushin deal with technical questions of language that are not the usual topics of discussion in the Gemara. In explanation of this odd dialogue, Rav Sherira Gaon, as well as many of the rishonim explain that these pages are not part of the original Gemara , rather they are a later addition from the time of the savoraim – the sages who followed the amoraim of the Gemara – or, perhaps the early geonim.
For example, one of the discussions is the question of the language chosen by the Mishnah, which writes that ha-isha niknet be-shalosh derachm – that there are three ways to effect marriage – kesef (money), shtar (a document) and bi’ah (sexual intercourse). Is the word derech (a means or manner) masculine or feminine? Our Mishnah treats it as feminine – yet other Mishnayot appear to view the word as masculine. [Unlike the English language, which treats most objects as gender neutral, making use of the word “it,” many other languages – including Hebrew – apply a gender to virtually all objects.]
Another discussion is why the Mishnah chose to use the word derachm rather than the word devarim (there are three things that can be used to effect marriage). We find both derachm and devarim in different contexts, and the Gemara searches for a reason for choosing to use one rather than the other. An example is a discussion about the etrog, which is similar to a fruit in three ways (be-shelosha derachm) and to a vegetable in one way (be-derech echad).
The etrog (Citrus medica L.) differs in several ways from other trees common to the land of Israel in ancient times. One of them is the need for constant watering – similar to other citrus fruits – since the winter rains do not suffice for its needs. Also, it produces fruit throughout the year so that ripe fruits and developing fruits may be on the tree at the same time. Thus we find that the sages compared the etrog to a vegetable in certain ways, in that vegetables also need constant watering and are not necessarily specific to a given growing season.
According to Jewish law, a father has the right to “sell” his daughter to a man as an amah ivriyah – a Jewish servant girl (See Shemot 21:7). From the Torah it appears clear that the purpose of such an arrangement is for the “master” to have his son (or himself) marry the girl, since the Torah concludes that if such a marriage does not take place ve-yatzah hinam, ein kasef – that she goes free without any payment being made.
In explanation of this passage, the baraita teaches that ve-yatzah hinam, ein kasef means that she will not need to pay in order to be released either after she becomes a na’arah (at age 12) or when she becomes a bogeret (an adult, at age 12 and a half). The amora’im discuss why both statements are needed – after all, if she is released at age 12, how can there be a need to release her again at age twelve and a half? Abayye explains that this refers to the case of an aylonit – a woman who never develops to female physical maturity, who skips the stage of being a na’arah.
From the detailed discussions in the Gemara – mainly in Masechet Yevamot – it appears that an aylonit suffers from a genetic defect that does not allow her to have children. This is a different categorization than an akarah – a barren woman – whose physical and sexual development is ordinarily normal, but cannot have children because of some other deficiency or impediment. From those descriptions it appears that an aylonit can be recognized by certain unique physical traits, including a lack of secondary sex characteristics like pubic hairs. Furthermore, it appears from the Gemara that there are different types of aylonit, ranging from women who have an overabundance of male hormones to those who suffer from Turner syndrome, where only one X chromosome is present and fully functioning. Approximately 98% of all fetuses with Turner syndrome spontaneously abort; the incidence of Turner syndrome in live female births is believed to be about 1 in 2500.
Within Jewish law there are many discussions about the status of an aylonit, mainly because of the lack of secondary female sex characteristics and because they develop at a relatively advanced age. Thus we find questions about when an aylonit is considered to have reached the age of adulthood, which halacha ordinarily defines as physical maturity.
As we have learned, one of the methods that can be used to create a marriage is shetar – a document that states “behold you are married to me” – that is given by the man to the woman. Our Gemara searches for a source for this law, and the suggestion is raised that we learn this concept from the fact that a document – a get – can be used to end the marital relationship, similarly it can be used to create such a relationship. In response the Gemara asks whether we should conclude that just as a marriage can be created by the transferring of money, perhaps a divorce can be done with money, as well! A number of answers are offered; Rabbi Yossi ha-Galili suggests the passage sefer keritut – a written book of separation – that appears in reference to a divorce should be understood to mean that only a “written book” will effect the separation, and nothing else will. Other sages suggest that this passage teaches a different law – that a divorce must create a total separation between the husband and the wife.
When a man writes a get to divorce his wife, he can make the divorce conditional on a specific thing that the woman will do, but the divorce cannot allow him to retain any level of involvement in her life. Thus, if the husband makes the divorce conditional by saying “this is your get on the condition that you do not go to your father’s house for the next 30 days,” the get will be a good one, assuming that the wife fulfills the condition and does not go to her father’s house for 30 days. If, however, the condition was open-ended – the husband said that the get was conditional on her refraining from going to her father’s house forever – then the get cannot work, since the husband would still be in control of his wife’s activities even after the divorce.
The rishonim ask why we must view the condition keeping the wife from going to her father’s house as being open-ended. Given the fact that her father may die or the house may be destroyed we should recognize the possibility of closure in this case, when it will become clear that the woman has fulfilled the condition, allowing the divorce to take effect.
The general attitude taken in response to this question is that the condition not to enter the house remains even after her father’s death. This is the case because of the husband’s use of the term, le-olam – forever, or because the husband’s intent was to put a prohibition on the house (his statement is understood to mean that she cannot enter the house which today is owned or occupied by her father), or because we view the house as the patriarchal home, even after the father’s death. Similarly, the possibility that the house may fall or be destroyed is hardly something that we can be certain will happen, leaving the wife in a state of limbo, which we will not allow.
One of the questions that our Gemara deals with is the language that will work when creating kiddushin – when getting married. As we have learned, if a man gives a woman money and there are appropriate witnesses watching the transaction, we will need the husband to make clear his intention, so that we can be certain that both he and she understand what is taking place.
Some expressions are clearly acceptable, e.g. harei at ishti – “with this you are my wife” or harei at arusati – “with this you are engaged to me.” Other statements are not so clear. Among the examples offered by the Gemara are words that are used in the Bible, describing the creation of Adam’s wife, Chava, e.g. harei at ezrati – “you are my helpmate” or harei at tzalati – “you are my rib.”
There is one expression – harei at charufati – that, according to the Gemara’s conclusion – will only work in Yehuda (the southern part of Israel) since in Yehuda it was common practice to refer to an engaged woman as a charufah. The expression charufah has a biblical source (see Vayikra 19:20) where the word certainly means a woman who is engaged to be married. Nevertheless, the biblical commentaries have great difficulty in offering a true definition of the word.
Some of the commentaries ask why an expression that is specific to a certain place can be used, since in other areas of Jewish law no such accommodation is made. Several different answers are offered in response to this question.
- Yehuda is a large and significant area and can have its own recognized expressions
- This particular expression has a source in the Torah
- We recognize that not every community will speak Hebrew, and foreign languages are also acceptable in situations like these. This expression is no worse than a foreign language.
In fact, the Talmud mentions on more than one occasion that the people of Yehudah spoke a more pure form of Hebrew than was spoken in other parts of the country.
Rava raises an apparent oddity in a situation of marriage. According to Rava, if a man says to a woman “you are betrothed to half of me” the marriage takes effect; if he says to her, however, “half of you is betrothed to me” the marriage does not work. In response to Abayye‘s objection that the Torah describes marriage in the words ki yikach ish isha – when a man takes a woman as his wife – indicating that both husband and wife are full and complete, Rava explains that since according to the letter of the law a man can marry more than one woman, therefore the statement “you are betrothed to half of me” has meaning. A woman can be married to one man only, so saying “half of you is betrothed to me” has no meaning whatsoever.
One question raised by the commentaries is why the man would need to make a statement that he retains the right to marry an additional woman (the interpretation given by Rava to his statement that only half of him will be married to her). Biblical law allows him to marry a second wife, so there should be no reason to include such a statement as a condition of the marriage!
Tosafot R”i HaZaken points out that ordinarily a person can only take a second wife if he has the means to support both. Making such a condition allows him to marry a second wife under all situations. The Ritva essentially agrees with this approach, adding that stating the condition will at least protect the husband from his first wife’s objections to a second marriage, or it might allow him to marry a second time even in communities where such a practice was not accepted.
A student of the Rashba argues that this statement is not necessary; the point of the Gemara is to teach us that even a lashon geru’ah – a weak expression of marriage – will, nevertheless create a full marital relationship as long as the statement does not detract from the marriage itself.
As we have learned, when ruling about issues of marriage, it is essential that the statements of the man and the woman be clearly understood – to both each other and to those witnessing the event. The Gemara on our daf presents a series of cases where it appears that the woman is accepting kiddushin from the man, but upon closer examination of the case, she may be rejecting it.
For example, if a man hands a woman a coin and says hitkadshi li be-maneh – marry me with this coin – and she takes it from him and throws it into the ocean or into a fire, we interpret her actions to mean that she is rejecting his offer of marriage. The Gemara explains that we need to state this clearly lest someone argue that she had accepted the money, and is now simply testing her husband’s ability to deal with anger. The Me’iri explains that in all such cases we must rely on the understanding of the witnesses and the interpretation of the events made by the court.
In a similar case, the Gemara says that a man who offers a woman a loaf of bread, if she says “give it to the dog” we understand that she is rejecting the offer of marriage. If, however, the dog belonged to her, then the marriage takes effect.
A case presented by the Gemara that ends with a different conclusion is when the woman responds to the offer of a loaf of bread by saying “give it to that poor person.” In this case, the poor person was someone who she regularly supported. The Gemara explains that in the case of a poor person, since the man is as obligated to support him as the woman is, her directive does not indicate acquiescence.
The Talmud Yerushalmi offers a similar case with a different conclusion. If a man offers a selah (a fairly large coin) to a woman, and she instructs him to give it to a poor person, the kiddushin does take effect. Most of the commentaries point to this as an example of disagreements between the Talmud Bavli and Talmud Yerushalmi. Others suggest that we must distinguish between a loaf of bread, which is a small thing and a valuable sela, which would not ordinarily be given to a poor person as charity.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.