The commentaries discuss how to legally categorize the halakhic institution of marriage. On the one hand, it is evident that the Torah desires that men and women marry (Bereishit 2:18) and that there is a positive commandment to bear children (ibid. 1:28; Yevamot 65b). But can the act of finding a partner and initiating a marriage relationship itself be categorized as an obligation or as a mitzva? And if marriage itself if not a halakhic imperative, is there an aspect of marriage that can be considered a mitzva? Finally, how does this question contribute to our general understanding of the Torah’s view of marriage?
In order to understand this week’s shiur, we must familiarize ourselves with certain terms. There are two parts to the wedding ceremony: the kiddushin (or eirusin) and the nisu’in. In a future shiur, we will discuss the practical and conceptual differences between these two parts of the marriage ceremony. For now, kiddushin generally refers to the formal aspect of the ceremony, known as a “kinyan,” through which the legal status of marriage is accomplished. Nowadays, kiddushin refers to when the man gives the women a ring and declares, “Harei at mekudeshet li be-taba’at zo ke-dat Moshe ve-Yisrael” (“Behold you are consecrated unto me with this ring in accordance with the law of Moses and [the People of] Israel). However, the mishna teaches (Kiddushin 2a) that kiddushin can be achieved through contract (shetar) or sexual relations with the intent of forming this relationship (bi’ah). Once kiddushin has taken place, the marriage can only be terminated through a get. Nisu’in refers to the more intimate union between the man and women, which is achieved through standing together under the chuppa, reciting the sheva berakhot, and yichud. We will relate to these different stages of the wedding ceremony throughout our discussion this week.
Mitzvat Kiddushin in the Talmud
The Torah mentions the concept of kiddushin in the context of the laws of divorce (Devarim 24:1):
When a man takes a wife and is intimate with her, and it happens that she does not find favor in his eyes because he discovers in her an unseemly [moral] matter, and he writes for her a bill of divorce and places it into her hand, and sends her away from his house.
The Torah employs the word “ki” to describe the marriage, which in this case is to be terminated. It is not clear from this verse whether the Torah means to imply that a man should or must marry a woman, or whether it is a voluntary process through which a marriage is created.
In numerous places, the Talmud implies that kiddushin is a “mitzva.” For example, the Talmud teaches (Kiddushin 41a) that a person should preferably not appoint an agent to perform the act of kiddushin (i.e. betrothing a women through a gift), as “it is better to perform a mitzva oneself” (mitzva bo yoter me-beshelucho). Similarly, in the context of the mishna’s statement (Beitza 36b) that kiddushin should not be performed on Shabbat and Yom Tov, the gemara describes kiddushin as a “mitzva,” although it appears to distinguish between the kiddushin of one who is already married with children and one who is not.
The Rishonim grapple with this interesting issue in a number of places. For example, regarding the gemara’s statement that a person should preferably perform the “mitzva” of kiddushin himself, the Rishonim disagree as to whether the gemara refers to the mitzva of kiddushin or whether kiddushin is termed a “mitzva” because it is a “hechsher mitzva,” a preparatory stage of the mitzva of peru u-revu.
The gemara further explains that the principle of mitzva bo yoter mi-beshelucho applies to women as well and that a woman should therefore preferably not appoint an agent to accept kesef kiddushin on her behalf. To which mitzva is the gemara referring? The Ran explains (Kiddushin 16b) that the gemara refers to the mitzva of peru u-revu and that women also fulfill the mitzva through their “assistance” in fulfilling it. However, the Sefer Ha-Miknah (Kiddushin 41a) disagrees and insists that the gemara refers to kiddushin as a “mitzva” because it is a “matir,” an act that permits a prohibited activity. Accordingly, a woman also has a part in this mitzva, as it permits her to live with her husband.
Mitzvat Kiddushin and Birkat Ha-Eirusin (The Marriage Blessing)
The Rishonim relate to this issue most directly in the context of a discussion regarding the laws of the birkat ha-eirusin, the blessing recited at the beginning of the wedding ceremony, before the kiddushin. The text of the blessing is:
Blessed … Who has sanctified us by Your commandments and commanded us concerning [forbidden] intimate relationships and forbidden to us those women who are [only] betrothed with eirusin, but permitted to us those women who are married to us by chuppa and kiddushin. Barukh … Who sanctifies the people Israel by chuppa and kiddushin.
The Rosh (Ketubot 1:12) and other Rishonim note that the text of the blessing does not match the pattern of other birkot ha-mitzvot:
Some question the formula of the blessing and why we do not say, “[He who] has commanded us to betroth a woman.” Furthermore, where do we find a similar blessing in which we praise that which God prohibited? For we do not say, “[Blessed] … who has prohibited eiver min ha-chai and permitted slaughtered meat”!
Why doesn’t the birkat ha-eirusin follow the general pattern of other blessings recited before performing mitzvot?
The Rosh explains that marriage is not an inherent and necessarily part of the central mitzvah of periya u-reviya:
It appears to me that the blessing is not for the fulfillment of the mitzva, as periya u-reviya is the fulfillment of the mitzva, and if he were to take a concubine (pilegesh) and fulfill periya u-reviya, he would not be obligated to wed a woman. Similarly one who marries an older woman, an eilonit, or a woman who cannot bear children also says this blessing … as there is no obligation to perform this mitzva and it does not fulfill [the mitzva] of periya u-reviya and therefore a blessing was not instituted for this mitzva.
The Rosh concludes that the blessing is a birkat ha-shevach, which “was instituted to give praise to God who has sanctified us and separated us from the other nations and commanded us to betroth permitted women and not those who are prohibited to us.” (We will challenge the Rosh’s problematic assertion regarding a pilegesh in a future shiur.)
The Rosh clearly maintains that there is no halakhic imperative to marry, nor does marriage technically fulfill a mitzva. Accordingly, in his view, unlike birkot ha-mitzva, the blessing is recited after the kiddushin and must be said in the presence of ten men. Although, as mentioned above, there are numerous sources that indicate that kiddushin is indeed a mitzva, according the Rosh, the gemara apparently refers to a mitzva in the sense of the performance of a good deed, the preferred manner in which one in meant to fulfill the commandment of procreation.
Most Rishonim disagree and assert that there is a mitzva of kiddushin of some sort. They differ, however, as to the type and nature of this mitzva.
For example, R. Yitzchak of Corbeil, in his Sefer Mitzvot Katan (Smak), implies that there is a positive mitzva to initiate kiddushin and to be married. Other Rishonim, however, appear to disagree, implying that although one is not obligated to marry, one who wishes to marry a woman must do so in the manner described by the Torah. The Sefer Ha-Chinukh (552), for example, writes:
We were commanded to betroth a woman in one of three ways before the marriage… Of the roots of the commandment are that we are commanded to perform an act with a woman [that] indicates the matter of their being a couple before he lays with her, and that he should not have sexual relations with her like he would have sexual relations with a prostitute, without another act between them first… And the sages obligated us to recite a blessing upon this commandment – the man betrothing (see Mishneh Torah, Ishut 3:3, and Sefer Mitzvot Ha-Gadol, pos. comm. 41) or someone else on his behalf and he answers, Amen – in the way that we recite a blessing on all commandments. For we hold that with blessings over commandments, “Even though he has [already] fulfilled [it], he may fulfill [it] for another”… And our custom is to arrange it over a goblet full of wine and to recite it after the act of betrothal. And they said that the explanation of this is that since the act of betrothal is dependent upon the consent of another – that is, the woman – it is not fitting to recite the blessing over the commandment before the commandment, as with other commandments.
The Chinukh clearly believes that the blessing is a birkat ha-mitzva, as kiddushin is considered to be a positive commandment. Interestingly, he adds that it was customary to say the blessing after the kiddushin, despite the fact that the birkat ha-mitzva is usually said before the performance of a mitzva, since it would be improper to say the blessing before the man betroths the woman, as she may refuse.
The Ramban (Ketubot 7b) offers a middle approach. He explains that in the time of the Talmud, the wedding ceremony was divided into two parts. First, the man betrothed the woman (kiddushin) through money, a contract, or sexual relations, and only after a year did they begin living together as a married couple (nisu’in). The Ramban explains that since the full mitzva of marriage is only fulfilled after the kiddushin and nisu’in, the blessing cannot be recited with the kiddushin, which is only part of the mitzva. According to the Ramban, while kiddushin and nisu’in together indeed constitute a mitzva, the blessing recited at the kiddushin is a birkat ha-shevach, and not a birkat ha-mitzva.
The View of the Rambam
The Rambam’s opinion is the subject of much discussion. Although the Rambam writes numerous times that kiddushin is a positive commandment (Sefer Ha-Mitzvot, pos. comm. 213; introduction to Hilkhot Ishut; Hilkhot Ishut 1:2, 3:23), it is not clear from the Rambam which part of marriage is the mitzva. His son, R. Avraham ben Ha-Rambam (Birkat Avraham 44), explains that the nisu’in, the second and final part of the marriage ceremony, is the mitzva. This fits with what the Rambam writes in his introduction to Hilkhot Ishut, where he writes that the mitzva is “lisa isha,” and not “le-kadesh isha,” as well as with the Talmud’s statement (Moed Katan 18b) implying that nisu’in, and not the kiddushin, is the mitzva. This position is certainly reasonable, as ultimately the nisu’im marks the beginning of married life.
Nevertheless, this position is difficult to accept, as the Rambam seems to emphasize the kiddushin, or “likuchin,” and not the nisu’in. This is especially true regarding the blessing over the kiddushin, which he describes as a birkat ha-mitzva that cannot be said after the kiddushin. If so, in what way does the kiddushin serve as the central part of this mitzva?
Interestingly, some suggest that kiddushin is not a positive commandment, but rather what is known as an issur aseh (see Rivash 395). One who engages in sexual relations outside of the context of marriage violates an “issur aseh,” as one is not permitted to have relations without first performing an act of betrothal. It is possible that this was also the view of the Rambam, who also describes the mitzva as “having sexual relations (liv’ol) through kiddushin” (Sefer Ha-Mitzvot) and “to marry (lisa) a woman with ketuba and kiddushin” (introduction to Hilkhot Ishut). In other words, kiddushin is a “matir,” an act which permits an otherwise prohibited activity.
Alternatively, it is possible that according to the Rambam, the mitzva is indeed the kiddushin, and it is the kiddushin that represents and reflects the nature of halakhic marriage. Kiddushin creates the formal, legal relationship within which one may live a full, married life. Without kiddushin – and, according to the Rambam, without the financial responsibility created by the ketuba (although the Rambam maintains that the formal obligation of ketuba is mi-derabbanan) – one is not permitted have intimate relations with a woman. It is this context and method that is the mitzvat aseh and which ultimately reflects the Rambam’s view of marriage. In other words, the Rambam believes the sanctification and formalization of the association between and man and woman is a halakhic prerequisite for pursuing an intimate relationship. As we shall discuss in the future, this is no surprise, as the Rambam maintains that aside from a king, one may not live with a pilegesh (concubine); he only sanctions a relationship forged through kiddushin and ketuba.
Accordingly, we can understand why the birkat ha-eirusin does not relate only to the act of kiddushin, but rather to the context and purpose of kiddushin:
Who has sanctified us by Your commandments and commanded us concerning [forbidden] intimate relationships and forbidden to us those women who are [only] betrothed with eirusin, but permitted to us those women who are married to us by chuppa and kiddushin.
Since it is not the act of kiddushin per se but the process and what it accomplishes that constitutes the mitzva, this is a fitting blessing.
Finally, it is worth noting the view of R. Achai Ga’on in his She’iltot (165):
[The obligation is to] marry and bear children and be engaged in populating the world, as it says, “Take wives and beget sons and daughters [and take wives for your sons and give your daughters to men, and they shall bear sons and daughters, and multiply there and be not diminished]” (Yirmiyahu 29:6).
R. Achai appears to count marriage and bearing children as one mitzva. This position may be similar to the approach of the Mordekhai (Ketubot 132), who writes:
We do not say the blessing, “He who has sanctified us with his commandments and commanded us to betroth a woman,” since the act of kiddushin is not the completion of the mitzva … And even at the time of nisu’in, we do not say this blessing lest it be deemed a berakha le-vatala (blessing in vain), lest they will not merit to have children (le-hibanot) together.
The Mordekhai appears to maintain that the mitzva, in its fullest sense, includes kiddushin, nisu’in, and bearing children.
We discussed whether to view marriage in general, and kiddushin in particular, as a mitzva. We noted that while it appears that the Rosh does not consider marriage a formal mitzva, most other Rishonim relate to kiddushin as a fulfillment of a mitzva, an obligation to be married, a prohibition to cohabit without kiddushin, or as a broader ideal to initiate and establish a formal, legal relationship that includes responsibilities before engaging in a more intimate relationship.