Monthly Archives: August 2006

Derech Kiddushin

In the same article mentioned below ( “Ba’ayot Agunot uMamzerim” in Dine Yisra’el, XIX (5757-5758), R. Meir Simchah Feldblum proposes a ceremony called “derech kiddushin” (in the manner of kiddushin) which, he notes, has Talmudic roots as a way to sanctify and permit cohabitation without requiring a get.

The core case of Feldblum’s argument comes from a discussion of the status of a minor female whose father traveled abroad and thus effectively abandoned his obligations to his daughter–a father can contract marriage on behalf of his daughter, but a minor female cannot contract her own marriage (back in the day, this was intended to protect her from sexual predators). In a case where such a girl attempts to take her fate in her own hands, the Rosh, in Kiddushin 2:8, asserts that though she cannot contract a kosher marriage on her own (she’s still too young), “nevertheless, she cannot be forbidden [such a relationship] because she is to be considered an unmarried girl who engages in a licentious relationship [with her consort] for, since she is with him is the manner of marriage (derekh kiddushin hi ezlo), it is not licentiousness.” The relationship isn’t full Rabbinic marriage because the partners weren’t technically eligible to marry, but it’s not licentiousness either–it doesn’t require a get, but it’s something more than concubinage. This, then, is derech kiddushin. (This position is mentioned in the Shulchan Aruch, Even ha-Ezer 37:14.)

R. Feldblum suggests that any relationship that’s in “the manner of marriage,” even if it’s not actually 100% fully kosher kiddushin, is sanctified yet does not require a get. As J. David Bleich (“Can There Be Marriage Without Marriage?” Tradition, I think 33/1, 1998), artculates it,

According to Rosh’s own categorization… of derekh kiddushin, [it is] a situation in which the parties seek to establish a matrimonial relationship but fail to realize their intention because of a technicality in the form of a lack of halakhic capacity to contract a valid marriage. Since the parties genuinely desire to effect a marital relationship, a woman entering into such a relationship suffers no social stigma.

R. Feldblum argues that this applies to all couples, today–that is, that there’s a technicality preventing that kiddushin from being kosher. He argues that since no woman today would truly consent to kiddushin if she really understood what it meant, no woman is truly able to give consent–therefore all kiddushin is, in a way, derech kiddushin. (The adult woman’s consent is crucial–without it, the halakha suggests with very little controversey, the kiddushin does not take effect.)

To put it another way, the ethical issues of acquiring a human form suffient “lack of halakhic capacity” to effect the kinyan of kiddushin, or that there are other factors that might affect one’s ability to make a kinyan. Or perhaps, even if the Rosh did intend the concept to mean one thing in a specific context, the concept could be extended more broadly.

The more I think about this idea, the more I like it, personally. It’s very compelling. It also offers a nice potential model for same-sex couples, who want to establish a kosher marriage and are together “in the manner of marriage” but who do actually lack the halakhic capacity to do traditional kiddushin (which is more or less defined by a man’s acquisition of a woman, and doesn’t really work in any other gender formulation). And if more het couples accept it, it’d have the nice side-effect of equalizing the rituals and status of straight and gay marriage.

R. Haviva Ner-David suggests that the way to enact this today is to issue a formula similar to (in the manner of) traditional kiddushin, however, in a form that would not be construed as traditional kiddushin, such as, “Harei ani miyuchad(et) lach/lecha bitaba’at zu” (Behold, I am made exclusively yours with this ring.)

ADVANTAGES: Creates a bond that fits within the halakhic framework, does not require a get, is same-sex friendly, nobody gets bought, is arguably the closest thing to kiddushin available today (depending on how you regard the consent issue.)

DISADVANTAGES: Is not kosher kiddushin, is possibly non-applicable to situations in which traditional kiddushin is possible, has a “lower” status than traditional kiddushin.

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Obviation

This method comes from one of my teachers, Dr. Aryeh Cohen. It’s intended to work in concert with his ketubah, which has explicit egalitarian conditions (tnaiim) built in that are based on some texts found in the Cairo Geniza. His ketubah text is online here.

His kiddushin formula is to work as follows: Under the chuppah, the bride first gives a ring to the groom with the declaration, “Harei atah mikudesh li…” (Behold, you are set apart for me according to he laws of Moses and Israel) and then the groom gives a ring to the bride with the same declaration in the feminine form. Cohen follows the opinion of many poskim that such a direct parallel between male and female actions–particualrly when the bride makes the declaration first–effectively obviates the kiddushin, and the kinyan is not maintained. He writes,

The ring exchange obviates the possibility that there is kinyan in the kiddushin formula and then all that is left in the formula is the statement of dedication to each other. This semantic option is already present in the gemara (de-asar a-kula alma kehekdesh) (and implicitly in the mishnah beginning of the second perek). So
I would say that the kiddushin are valid though not a kinyan (or to my mind valid and not a kinyan….

This act of deliberate subversion enables the bride and groom both to exchange rings with the traditional language in an egalitarian manner and to avoid the ethical problem of the male acquiring the female altogether. In this formulation, there is no kosher kinyan, and yet the presence of seven blessings and, just as importantly, the specification in the ketubah that the dissolution of the marriage requires a get mitigates accusation that the marriage, being safek kinyan, is not kosher and/or does not require a get in the event of its dissolution.

This solution is very close in external form to R. David Mivasair’s method, but with an entirely different underlying intent and understanding of what’s happening. Rather than attempting to effect kinyan through an act that’s not regarded as viable to many rabbis (that is, saying an identical formula and exchanging identical rings), Dr. Cohen embraces the possibility that the kinyan may cancel itself out through equal exchange, and uses it to his advantage.

Safek kiddushin–a marriage about which there is some question as to whether or not kosher kiddushin has occurred–is understood to require a get l’hatchila (at the outset) but not b’deiavad (after the fact; if, say, the marriage breaks up and the bride marries someone else, her second marriage holds even if there’s been no get). There is some debate about whether a wedding that intends to be safek kiddushin can really count as such.

ADVANTAGES: Nobody gets bought, the traditional form of kiddushin is maintained, the couple is sufficiently married to require a get while avoiding the classical issues of get requirements.

DISADVANTAGES: There’s some safek about safek kiddushin.

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Kinyan Hithaivut

My halakha teacher (who prefers not to be cited by name) has dug up a somewhat arcane form of kinyan in the sources, called “kinyan hithaivut,” or “acquisition by self-obligation.”

It’s a form of kinyan sudar (meaning, the acquisition has to happen over an object) in which a person can self-obligate himself to do something. (See Baba Metzia 67b, 108a, 47a, and Encyclopedia Talmudit on Hithaivut.)

He notes that since “mikudesh” (set apart) has a very specific meaning in this context, and since one technically can’t make a man mikudesh, one shouldn’t say, “harei, atah mikudesh li” (aka the masculine formula of the traditional kiddushin formula.) Rather, the bride handing the groom the object (ring, most likely) over which he would self-obligate himself would be better off saying something like, “Harei atah mihuyav b’kinyan sudar zeh sh’lo likayem yachasim im nashot b’olam hutz mimeni” (Behold, you are obligated with this kinyan sudar not to engage in sexual relations with women other than myself.)

It’s not clear if the groom, through this kinyan, is being acquired, or not. One could argue both ways, frankly. Certainly, the groom is obligating himself to monogamy through his acquisition of a ring just as he obligates the bride to monogamy through her acquisition of a ring. It’s not a perfect parallel, but it’s pretty close.

There is some question about whether a person can use kinyan hithaivut for commitments not to do something in the future, which means that it is safek derabbanan (whereas kiddushin of a woman is vedai d’Oraita,) but still could be considered binding.

ADVANTAGES: Both bride and groom get acquired, in a way, obligations of bride and groom are relatively parallel, ring exchange has halakhic meaning on both sides, kosher kiddushin.

DISADVANATGES: The status (safek derabbanan vs. vedai d’Oraita) of the two acts are not equal, like the Linzer model, the groom still acquires the bride and the bride does not acquire the groom, but rather the groom acquires other obligations.

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Living Together Effects Kiddushin

According to Mordekhai (Kiddushin 533, to Kiddushin 65b (page 4a in the Vilna Mordekhai; he cites Rabbenu Barukh), a couple who lives together, even without any legal ceremony requires a get upon separation.

This is an oft-cited opinion, but in reality, he is in a significant minority. Very very few poskim agree with him about this.

Accepting this idea means that a couple who wrote a ketubah and did the seven blessings under the chuppah would be fully halakhically married, without a ritual of acquisition. On the other hand, the woman would still technically be considered acquired–it’s just that the cohabiation (and presumably the conjugal relations) effect the kiddushin rather than the passing of a ring.

ADVANTAGES: No ritual enactment of acquisition, fully halakhic marriage.

DISADVANTAGES: Acquisition happens nonetheless, a get is required, this really is a minority position and should not be adopted without serious consultation with a qualified rabbi.

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Kiddushin With Snacks

The Shulchan Aruch Even Ha-Ezer 31:3) states that if “he betrothes her with food or with a vessel or with something similar that’s worth less than a peruta, she is considered to have been acquired through kiddushin by safek (doubt), lest this thing be worth a peruta in another place (ie a different part of the country or a different country.)” He then goes on to add that some say that if one is betrothing with cooked food or vegetables that aren’t technically in hand, and they’re not worth a peruta locally, she’s not considered betrothed because the stuff isn’t going to travel well enough to be priced someplace else.

For information on safek kiddushin, check this and this post for information, background and issues with it, as well as pros and cons.

The idea of betrothing with a lollypop or a single fig might appeal to some couples’ sensibilities.

A peruta is considered to be the value of pure silver in the size of a half kernel of barley. Silver prices being what they are today, that’s less than a penny. However, R. Moshe Feinstein ruled that to be considered a peruta the coin must have purchasing power, which today would probably be a nickel. Still, it’s on the side of controversial–some might argue that a peruta is less than a penny, so check with your rabbi first if you’re thinking about doing this.

ADVANTAGES: There’s question about whether anybody gets bought, snacks get given, the couple is sufficiently married to require a get while avoiding the classical issues of get requirements.

DISADVANTAGES: There’s some safek about safek kiddushin, and this could be a risky game to play in terms of what’s being communicated or understood to be happening. The value of a peruta (and thus the ability to make sure that the gift given is less than this value) is potentially the subject of debate. Rings could be given separately under the chuppah (see Tokens of Love), but they don’t play a halakhic role.

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Tokens of Love

The Rema writes (Shulchan Aruch, Evan Ha-Ezer 27:3) that

“one who says to a woman when he gives her [a ring or equivalent] that he gives it to her out of love and affection, there is suspicion about the kiddushin, lest he said it [in order to get the woman to love him], as behold, it’s as though he said to her, “Miyuchedet li” (You are exclusive or special to me)… and in any case, if she says that she received it in the spirit of kiddushin, it’s considered safek (doubtful) kiddushin.”

Again, safek kiddushin is a marriage about which there is some question as to whether or not kosher kiddushin has occurred–is understood to require a get l’hatchila (at the outset) but not b’deiavad (after the fact; so if, say, the marriage breaks up and the bride marries someone else, her second marriage holds even if there’s been no get). There is some debate about whether a wedding that intends to be safek kiddushin can really count as such.

If a ring is given under the chuppah with the above declaration and/or the explicit specification that the ring is a token of love and affection, it may have a dobtful kiddushin or even safek kiddushin status–no kinyan is effected, but the ritual is considered binding enough to require a get.

And yet, if someone hands a ring to someone else under the chuppah, with invited guests and caterers and such and announces that this ring is a symbol of affection, will there be much doubt that the intention is to get married? Probably not. And yet, will the intention also be clearly not to effect the kinyan of kiddushin? That is less clear, and good arguments could probably be made on all sides.

ADVANTAGES: Nobody gets bought, rings get given, the couple is sufficiently married to require a get while avoiding the classical issues of get requirements.

DISADVANTAGES: There’s some safek about safek kiddushin, and this could be a risky game to play in terms of what’s being communicated or understood to be happening.

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Free People Can’t Be Bought

Dr. Aryeh Cohen points out that in Baba Kama 84a, Abaye (or the stam) says, “ben horin eyn lo damim,” aka “a free person has no price.” In its context, this statement is discussing the estimation of damages and is suggesting, effectively, that the free offender in question should be estimated as though he were a slave, so that it might be known how much money he owes for bodily damages to another. And yet, he suggests, whether understood aggadically (homiletically) or halakhically, it’s a powerful statement. Free people have no price. If so, then they can’t be bought.

So is the bride a free person? On the one hand, there are plenty of sources that seem to link the acquisition of a woman with the acquisition of a slave–the first chapter of Mishnah Kiddushin, for example, does this implicitly.

And yet, is a woman’s acquire-ability reflective of something inherent in her nature, or is that about her socio-political situation in the Mishnaic era? The Yerushalmi Kiddushin 61A suggests,

“The same goes for a man, the same goes for a woman. A man has means at his disposal, but a woman does not have means at her disposal, because she is under the aegis of others. If she is widowed or divorced, she becomes like one who has the means.”

That is to say, if a woman has some financial freedom, she is like a (male) free person, and should be regarded as such. The gemara in chapter 10 of Pesachim makes the same point when it suggests that a woman is not obligated to recline during the seder (reclining being, of course, a symbol of freedom) unless she is an “important woman.” Though the phrase could be interpreted many ways, the most obvious reading is that an important woman is one of sufficient socio-economic status that she can employ servants–that is to say, she has some choice about whether or not to be doing the gruntwork of the seder (and/or to labor under the rule of her husband in a more general way.)

The “regular” woman is explicitly not a slave; Jews are explicitly forbidden from marrying female slaves (Shulchan HaAruch, Evan Ha-Ezer 4:11). Just as a slave’s status is reflective of his or her context and situation at the moment rather than an essential quality–a slave can become a free person, a free person can become a slave–so too with the woman. It is her economic status that makes her dependent, but the moment she is economically able to conduct herself independently and is not “under the aegis of others,” she is considered to be much more like the male free man.

If we assume that women’s socio-economic status today is significantly greater than it was at the time of the Mishnah and Gemara (at least in many parts of the world, anyway), than the women getting married with some agency, financial independence and choice are unarguably free. And free people can’t be bought. Which means that any kinyan attempted under kiddushin would not be able to be effected–it would perhaps be understood as a symbolic gesture of binding between the couple, but it could by definition not be an actual acquisition of a person. This also would mean that innovations aimed at giving the bride more agency or at creating a more egalitarian ceremony could not threaten the underlying kinyan, because there is none.

ADVANTAGES: Nobody gets bought, a halakhic ceremony with halakic binding/implications, lots of room for innovation as it’s understood to be meaningful to the couple, same-sex and heterosexual couples are on the same ritual level.

DISADVANTAGES: It’s a very controversial reading of Baba Kama, it’s not the traditional understanding of kiddushin, and some authorities may consider a “non-kinyan” done in this spirit to actually be kinyan.

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