The Mitzvah of Kiddushin

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by R. Gidon Rothstein

As we continue through the largely mitzvah-less Bereshit, I borrow from She’iltot on Parshat Hayye Sarah the idea to discuss kiddushin, a mitzvah whose surprising nature I am not sure we realize. Perhaps because non-Jews borrowed from us, a ring ceremony in marriage seems natural, where halachah portrays it as distinctly unnatural.

Step out of our usual practice and look at Rambam in the beginning of the Laws of Marriage, the first two paragraphs contrast the Torah’s view of non-Jewish marriage with Jewish marriage. The most obvious difference lies in that only Jews add, are required to add, this preliminary stage.

The Ways to Introduce Marriage

Rambam considers it both an aseh, 213, and a lo ta’aseh, 355, to marry with kiddushin first. Let me say upfront, as Aruch Ha-Shulhan does, kiddushin must be consensual, the woman has to agree, none of this can be forced on a woman [which does not deny the pressure put on young women in some circles to marry a particular man; in the end, they consent, however we react to that].

Both mitzvot consider full marriage to be a matter of the physical act of marital relations. The mitzvah here tells us to precede that with a ceremony, the man giving the woman an item, a document, or the two copulating (the Gemara discourages engaging in marital relations as a way to create kiddushin).

Sefer Ha-Hinuch 552 gives the intuitive reason why the Torah told us to do this, God was mandating conscious entry into marriage; without kiddushin, marriage looks more like how a man decides to engage the services of a prostitute (he drew the comparison from Rambam’s prohibition, as we will see), or, today, how couples might decide to live together.

To me, the fact that bi’ah itself is one of the ways to create kiddushin calls for a further reason. If the point was to mark marriage before being married, how does adding one more instance of the physical act do anything different?

More, the Torah speaks of an act of marital relations producing kiddushin more explicitly than the other two options (Rambam says Biblical kiddushin is only enacted through bi’ah, although he mitigates that in other places). Devarim 24;1 says “when a man takes a woman and has relations with her,” showing Kiddushin 4b this is one way to create this status.

For shtar, a document, the Gemara relies on a verse linking marriage to divorce, the latter explicitly with a document. The use of money—our nearly universal way of creating kiddushin—has a murkier source. In Sefer Ha-Mitzvot, Rambam chooses the Gemara’s derivation from a verse describing how a Jewish child maidservant leaves her servitude. The Gemara has other options for a source for the idea of kiddushei kessef, kiddushin created with money, but they are unclear enough that Rashi’s teachers assumed this form of kiddushin was Rabbinically instituted. Some read Rambam in MIshneh Torah to hold this, too.

Bi’ah creates kiddushin at least as well as the other forms, to me evidence kiddushin does more than formalize a marriage. Sefer Ha-Hinuch has a second idea I find more convincing, but let’s leave it for a bit.

No Sex Outside of Marriage

Rambam’s phrasing of the prohibition at first glance supports the idea I just suggested was insufficient. He says the Torah warned us against living with a woman without a ketubah, an early type of prenuptial agreement (Rambam assumes the Torah mandated itRamban disagrees, below) and kiddushin.

Read a bit further, and we see this was part of a larger point. He sources the prohibition to Devarim 23;18, let there not be a prostitute among the daughters of Israel. For him, the reason men and women may not sleep together without kiddushin and a ketubah is that it counts as the woman being turned into a kedeshah, a prostitute.

Rambam adds Vayikra 19;29 warns against fathers giving their daughters up for prostitution, an idea Sifra broadens to include any (consensual) act of sexual relations outside of marriage, regardless of whether the woman is paid. [A point maybe to stress: we think money makes it prostitution, for Rambam, the Torah tells us the lack of marriage does it.]

It’s Not Enough to Pay the Fine

The Torah elsewhere required a man to pay a fine if he seduced a young woman into consensual relations [the ages the Torah gave for these events—marriage, a father’s role, seduction—are at distinct odds with our cultural norms, but that’s a completely different topic]. Why add a prohibition here, Rambam asks, hasn’t the Torah already sufficiently shown its disapproval?

Nope. Because the punishment for seduction is a fine, opening the door to thinking the Torah has no problem with it as long as it is consensual and the man pays what he owes (which would make it closer to prostitution in the colloquial sense).  This is true of many other monetary rules the Torah lays out, such as the responsibilities a caretaker has for the items in his/her care, where the parties to a transaction are free to make their own arrangements.

Rambam adds the Torah itself gives a reason for this prohibition, that the land not fill with harlotry and depravity (Sefaria’s translation of ve-lo tizneh ha-aretz u-mal’ah ha-aretz zimah). It did not say it about rape and seduction of young women because those are rarer, Rambam says. Consensual promiscuity spreads and takes over a society [as we see in our times, sadly].

He has a tidy picture: sex outside of marriage differs insignificantly from prostitution and is prohibited. When Jews wish to have sexual relations, they need to marry, with kiddushin first. Still, he has not quite explained why kiddushin first.

Premarital Sex Is Not Prositution: Ramban’s Rebuttal

Ramban disagrees with Rambam’s interpretation of kedeshah, the “prostitute” the Torah banned from the Jewish people. First, he holds ketubah to be a Rabbinic institution, and kiddushin is an obligation about creating a certain connection with the woman [he does not clarify, but his point is that kiddushin has its own goals, independent of issues of prostitution].

He instead says this prohibition creates a new issue for a woman who engages in a prohibited sexual relationship. Some pairings cannot create a marriage in halachah, such as siblings (or a man attempting to marry an already married woman. Ramban thinks our verse was ruling out participating in any of those relationships.

He seems to understand the Torah to be less bothered by non-marital sexuality than it is by certain particular versions of relationships. For him too, though, kiddushin plays a role, because it is its impossibility that defines a relationship as intolerable enough to run afoul of this prohibition.

Sefer Ha-Hinuch’s Second Reason

The second idea Sefer Ha-Hinuch offered for kiddushin addressed its being introductory, a declaration of the upcoming marriage before it comes into effect. He suggests it is for the woman, to take to heart she is creating a permanent connection to this man, must never be unfaithful to him, part of creating a mutually fulfilling connection. [We will talk about the man-centricity of this in a moment.]

He says this second idea also explains the popularity of using a ring, usually costing much more than the minimum perutah needed to effect kiddushin (were kiddushin just to have a ceremony before marriage, I think he is saying, we shouldn’t care about the value of the item used, as long as it does the job; when we use a ring the woman wears after that, we seem to be saying the ceremony is about more). She can wear the ring always, a reminder of her connection to her husband.

This suggests kiddushin is a way for the woman to be fully aware of the commitment she is making, that from now on, all her relationship energies should and must go only to this man.

The Money Part

The ring (or whatever item) does need to be worth a perutah even though one can create kiddushin with a shtar, a document, which has no monetary value. On the other hand, halipin, a trade of items without regard to their value (we can transfer ownership of a car, for example, by the buyer giving the seller a pen, despite the disparity in value), does not work. Sefer Ha-Hinuch says halipin ignores value, where shetar is not about value in any way.

Aruch Ha-Shulhan Even Ha-Ezer 27;4 records what he calls a practice of earlier authorities, to check that the witnesses agree the ring is worth the minimum perutah. Without comment or explanation, Aruch Ha-Shulhan says no one does that anymore. [I have always seen it done.] He is also sure giving the woman a plot of land would create kiddushin.

The Formula

Along with giving her the ring, the man says, you are mekudeshet to me, set aside for me (a reference to her now being married in the sense of any other sexual relationship constituting adultery) with this ring (or whatever item he used). Sefer Ha-Hinuch records the common custom to say “ke-dat Moshe ve-Yisra’el, in the manner set by Moshe and the Jewish people.” (This sometimes comes in handy when a marriage needs to be nullified; since people marry “in the manner set…” if we find out one side violated that, the marriage might never have occurred.

A similar formula applies to kiddushin by document or conjugal relations.

Unusually necessary to the ceremony are witnesses, without whom it is invalid. A man and a woman can tell a court he gave her a ring and said the right words, if there were no valid witnesses, the marriage did not occur (this has helped authorities free children of mamzerut, by demonstrating the mother’s first marriage never took place, since there had been no valid witnesses).

The necessity of valid witnesses, and the usual presence of relatives (who may not serve as witnesses) led to the practice Aruch Ha-Shulhan mentions, Even Ha-Ezer 27;2, to be meyahed edim, to establish who the witnesses are, to the exclusion of others.

The Man Initiates

We have already pointed out how kiddushin affects the woman more than the man, only she cannot marry anyone else. Sefer Ha-Hinuch points out the ceremony also puts the man in the center. He must be the one to recite the words and give her the item. If she gives him something, and says the right words, it does not work.

(Hybrid cases are more of a question. Sefer Ha-Hinuch thinks if she gives an item and he says the words, it is also clearly invalid, where if he gives and she speaks, it might work. Rashi in Kiddushin writes that his accepting a gift from her might count as her also receiving value, the honor of him accepting from her. If she was a Tiktok influencer, God forbid, and posted a video of him accepting a ring from her, Rashi might think the extra followers she gets from being able to post that can count as a gift to her sufficient to make her mekudeshet. This is a detail I leave for another time.)

Nor can he give her something and describes his status (I am your husband, for example), because the Torah envisions this as a man taking a woman to be his wife.

Why Kiddushin?

I suggest the facts we have seen thus far give a fuller version of Sefer Ha-Hinuch’s reason for the  mitzvah. Marriage involves a woman being bound to one man (presumably because we want to know family bloodlines as clearly as possible, an idea that impacts other halachot, such as a woman’s having to wait three months after the end of one marriage before entering another. This explains why she has to be more fully committed than him at a technical legal level).

The Torah wants it to be more than that, wants it to be the man taking this woman into his household, into his life, her to realize she is renouncing any other household, any other life, for as long as this one lasts. It is about formalizing the relationship, and making sure she knows and remembers the commitment she has made. I suggest it is also about ensuring both parties are clear with themselves what they are agreeing to do: to bind their lives together, responsibilities and benefits on each side, for as long as they stay together.

The Beracha

Sefer Ha-Hinuch chooses to includes the berachah Hazal established for kiddushin (I always notice when a book laying out Biblical commandments chooses to spend time on a Rabbinic aspect of the ceremony). The words of the berachah have what Ramban would have wanted, that God separated us from arayot, from improper relationships, and then says, prohibited the arusot, prohibited men and women from living together as husband and wife if they have only had the ring ceremony. That ceremony does not create marriage, it is required preparation for marriage.

Full marriage is allowed after the huppah and kiddushin, because the couple will have readied themselves to enter this marriage with a correct awareness of their commitments and obligations to the other, in the hopes each makes the other happy, for many years to come.

About Gidon Rothstein

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