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Welcome to The Kiddushin Variations!

Hi, there. This site isn’t really a blog so much as a listing of different ideas that various thinkers have proposed regarding how a couple might approach kiddushin, the first part of the Jewish wedding ceremony–more specifically, the fact that kiddushin is more or less the aquisition of the bride by the groom.

You might want to start exploring the site by looking at my more detailed explanation of what this project is about, getting some background on the Jewish wedding ceremony in traditional sources, or referring to the glossary.

I say this in several places, but I’ll say it again: if you’re not someone well-versed in Jewish law and are planning your own ceremony, please talk to a rabbi about what you’d like to do–this site should be considered more of a sketchbook than a series of final legal decisions.

If you have other ideas (shitot) that aren’t listed, or any other questions or comments, please don’t hesitate to contact me.

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Kinyan with Reciprocal Declarations

Beverly Gribetz and Ed Greenstein wrote the following in this article:

For the kiddushin, we wanted to enable the kalla [bride] to respond in a meaningful way to the act of kinyan, literally “acquisition,” by which the chatan [groom] consecrates the kalla as his bride. Had we opted to make use of the traditional formula, whereby the chatan says to the kalla that she is consecrated – mekudeshet – to him by virtue of the ring that he gives her, there would have been no way for the kalla to echo the chatan’s language. We did not want to modify in any way the kiddushin that is the chatan’s prerogative and responsibility to enact.

We therefore chose to dust off an ancient rabbinic formula that would enable us to have the chatan, and then the kalla, say it – but with a critical reversal of the phrases. In the Talmud Bavli, Masechet Kiddushin, page 5b as well as in the major codes: Rambam’s Mishneh Torah, Nashim, Hilkhot Ishut 3:6 and the Shulkhan Arukh, Even Ha’ezer 27:2, one finds the Aramaic formula, harei at li le’intu, “You are hereby my wife.” Accordingly we had the chatan say (in Hebrew), harei at li le’isha kedat Moshe v’Yisrael. At this point the chatan presented the kalla with the ring that had belonged to him and effectuated the process of kinyan by which the kiddushin was made. For the sake of rhetorical reciprocity, we had the chatan add, v’ani ishekh, “and I am your husband,” which reinforced the formula the chatan had said.

Following the chatan’s act of kiddushin, the kalla responded, ani ishtekha kedat Moshe v’Yisrael ve’atta li le’ish, “I am your wife, by the laws of Moses and Israel, and you are my husband.” The phrases are reversed so that the kalla’s utterance cannot be interpreted as her acceptance of the kiddushin on condition – al tenai – i.e., that she would regard herself as mekudeshet only if the chatan were to agree to her proposal. By responding in the way that we arranged, the kalla only affirms the kiddushin that had taken place. But from a rhetorical perspective, she makes her voice heard on a par with that of the chatan.

In this formulation, the groom still acquires the bride through the act of presenting a ring. However, it allows the bride to mirror back in more or less identical language a statement of belonging and connection–which, according to many poskim, would have been much more difficult if he had used the language of kiddushin, ie “mikudeshet,” since a woman cannot make a man mikudesh. (Others argue that “harei atah mikudesh li”, if said after the kinyan, is a statement with symbolic value even though it’s halakhically meaningless.) Here, too, the bride’s statement does not have any major halakhic significance, other than that it signifies her consent to the kinyan–though technically, her silence also signifies consent, so it’s not a necessary addition.

For those looking for a way to do traditional kinyan with a more reciprocal feeling form, this might be a nice, meaningful alternative. Those who find kinyan problematic will probably regard this model as only a cosmetic change.

ADVANTAGES: Creates a more equal-feeling ritual; gives the woman more of a voice under the chuppah; allows the couple to make similar reciprocal statements; is a fully halakhically-binding marriage.

DISADVANTAGES: Is still the one-sided aquistion of a woman; the woman’s declaration has little, if any, halakhic significance.

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Conditional Kiddushin

Mishnah Kiddushin Chapter 3 and subsequent halakha make it clear that it’s possible to betroth someone on a condition (tnai). For example:

Mishnah Kiddushin 3:2

If one says to a woman. “Behold, you are betrothed to me on condition that I give you two hundred zuz,” she is betrothed, and he must give it. “On condition that I give you [two hundred zuz] within thirty days from now”: if he gives her within thirty days, she is betrothed; if not, she is not betrothed. “On condition that I have two hundred zuz,” she is betrothed, providing he has [two hundred zuz]. “On condition that I show you two hundred zuz,” she is betrothed, and he must show her. But if he shows her [money lying] on the table, she is not betrothed.

Mishnah Kiddushin 3:3

[If he says to her "Be betrothed to me] on condition that I own a bet kor of land”, she is betrothed, providing he does own it. “On condition that I own it in such and such a place”, if he owns it there she is betrothed, but if not she is not betrothed. “On condition that I show you a bet kor of land,” she is betrothed,
providing that he does show it to her. But if he shows it to her in a plain [ie land that is not his], she is not betrothed.

A number of people have taken this idea and run with it, designing traditional kiddushin on specific conditions relating to the kiddushin itself. Often the couple will sign a document (separate from the ketubah) before the ceremony stating something like, “I, (name of groom), indend to betroth (name of bride) on (date), and this betrothal is dependent upon the following conditions:” and then all and any possible terms of the kiddushin can be laid out. Possible terms could be: that I do not refuse your request for a get, or this kiddushin is rendered null and void; that if I do not grant you a get within three months of a civil marriage, this kiddushin is rendered null and void…. and other ideas in that vein. With this sort of condition built in, a marriage could be retroactively nullified in the event that get issues come up. (This idea is similar to the ketubah authored by Dr. Aryeh Cohen, and the conditions offered by the French and Turkish rabbinate in the 19th century.)

A couple could set out conditions regarding any possible scenario that they could imagine, add financial terms to the condition or other specific issues relating to the couple and their marriage that they feel is crucial enough that the very existence of the marriage depends upon it. It’s crucial that both bride and groom sign this document along with witnesses, so that everyone’s clear that the bride’s consent to kiddushin hangs upon the presence of these conditions, and that the groom knew about them from the outset, and that his betrothal of her depends on them as well. This signing can be done privately, with the couple and witnesses, or as part of the communal gathering.

Under the chuppah, either the traditional kiddushin formula could be recited with no reference to the conditions signed earlier, or they might be referenced–“Harei at mikudeshet li b’tabat zo ba-tnaiim sh’hiskamnu, k’dat Moshe v’Yisrael,” eg. (“Behold, you are betrothed to me with this ring on the conditions to which we agreed, according to the religion of Moshe and Israel.”) Or, the bride could accept the ring with a statement noting the existence of the conditions, if that’s preferred, to give her more of a voice in the transaction.

This does not address the kinyan problem, but it does negate the problems that a woman might have with a get as the result of traditional kiddushin, and perhaps helps a couple who wants traditional kiddushin to start their marriage on more equal legal footing.

ADVANTAGES: Traditional marriage, addresses the ever-looming get issue in a clean and easy way, makes clear that the marriage takes the woman’s rights into account to some degree, conditions can be personalized to the couple’s needs.

DISADVANTAGES: It’s still kinyan, declarations by the woman under the chuppah have no halakhic significance.

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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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Vows

This is the idea of one of my halakha teachers, who prefers to remain an anonymous formulator of ideas rather than a known promulgator of particular methods.

This, like R. Ner-David’s proposal in her book, involves playing with nedarim, vows. The first thing to say about vows is that they’re dangerous; there’s a pretty strong Rabbinic tendency to avoid going there if one can. They’re binding, powerful, and one wants not to be in a position where one can’t fulfill what was promised.

In any case, it does offer one way out of the kiddushin dillemma. If one violates a vow, one has committed a sin d’Oraita [of Torah law, rather than rabbinic law], so it has the same level of seriousness as traditional kiddushin. One needs to go to a beit din [legal court] to undo one’s vow–so there’s a way out, and/though it involves community consent. If a marriage ritual involves two separate vows of monogamy, care, providing economically and so forth, each party can undo his/her vow without concern for the other party. This, then, avoids some of the problems that arise if a woman wants a divorce and her husband won’t grant a get.

ADVANTAGES: Can be fully egalitarian, a solution for the get issue, is significantly legally binding, nobody gets acquired.

DISADVANTAGES: It’s not “romantic” feeling, there’s no kiddushin (as always, a pro or a con), one needs the backup of a local beit din to undo, vows are dangerous and not to be treated lightly.

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Invoking Rebbeinu Gershom

Another thing some people do is that, after the groom gives the bride the ring and says, “Harei at mikudeshet li c’da’at Moshe v’Yisrael” (Behold, you are set apart for me according to the laws of Moses and Israel), the bride then says, “Harei, atah mikudesh li c’da’at Rebbeinu Gershom v’Yisrael” (Behold, you are set apart for me according to the laws of Rebbeinu Gershom and Israel.)

Rebbeinu Gershom is, among other things, famous for issuing a ban (“takanah”) on polygamy in the 11th century. At first it was understood as binding on specific Ashkenazi communities, but now it’s more or less accepted accross the Jewish world (with a few communities here and there who don’t hold by it). As such, for Ashkenazi Jews in particular, Rebbeinu Gershom acted as the agent of more or less equalizing the male and female pieces of the marriage agreement–just as the bride, through marriage, was prohibited to other men, the groom, through marriage, is prohibited from taking other wives. (The issue of adultery is complicated, and I won’t get into it here).

The big problem with a woman handing a man a ring and saying, “Harei, atah.. c’da’at Rebbeinu Gershom” is that it’s technically not correct. The takanah (forbidding him to marry other women) kicks in when he acquires her, NOT when she gives him a ring. It may be a nice, symbolic way to acknowledge their respective sexual limitations on each other, but it has no halakhic status.

ADVANTAGES: Halakhic marriage, ring exchange, the woman publicly declares her husband’s monogamy just as he declares hers, it’s kind of cute.

DISADVANTAGES: Her statement and ring-giving have no halakhic status, she’s still acquired (and he’s not, really), even the limitations on seuxality in the two situations aren’t exactly parallel.

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The Da’at Factor

One of the more unassailable requirements of kosher kiddushin is דעת המקנה, consent/knowledge on the part of the one being acquired as to what’s happening. Traditionally this was so that one couldn’t marry a woman off without her consent, but now, the question lingers: if a woman gets married without knowing that her wedding ceremony includes a kinyan and requires a get to be given by her husband, has she given informed consent?

There’s also a principle of “mekach ta’out” in play, aka agreement under false pretenses.

R. Meir Simchah Feldblum, in an article titled, “Ba’ayot Agunot uMamzerim” in Dine Yisra’el, XIX (5757-5758), argues that, were women aware of the technical nature of their marriage (ie, that receiving a ring equals being acquired in some sense), they would not consent to a halakhic wedding ceremony. He uses this principle as a way of annulling many weddings, in situations in which a woman is left stranded without a get. They didn’t know that they were being bought, therefore it doesn’t “count” as a kosher wedding.

This isn’t a shita (method) for weddings so much as a factor to keep in mind through all of this. Many rabbis fail to mention the kinyan factor to prospective couples as marriage planning begins–for understandable reasons, since the rabbi wants the couple to have a kosher wedding, doesn’t want them (particularly if they’re not very Jewishly engaged) to freak out and refuse to have anything to do with the religion, etc. But said rabbi may be doing them a great disservice, since the status of their eventual marriage, if the bride doesn’t have knowledge of what’s happening, is in question. On the other hand, it’s a handy loophole if there’s concern about ever needing to annul the marriage because a divorce isn’t being granted.

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Kinyan Shtar

The Mishneh Torah, Hilchot Ishut 3:21 writes that though “the children of Israel have accustomed themselves to betroth with money or its equivalent… if a man wants to betroth with a document, he may do so.” The Shulchan Aruch (Even HaEzer 32:1), echoing the language of the Rambam’s Hilchot Ishut 3:3-4, details the nature of the document that can be used for kiddushin: “He [uses] paper or pottery shard, even if [the paper’s value] is not equal to a peruta, and writes for her, “Behold, you are betrothed to me,” and gives it to her before witnesses, and he needs to write it in the name of the woman to be dedicated [ha-isha hamikudeshet], as one would in a get….”

There isn’t a lot of detail in the sources (at least the ones I’ve encountered–please comment if you know something) about what is forbidden to write on such a document so long as the above requirements are met. As such, the shtar [document] of kiddushin could be framed as a parallel document to the ketubah, in which the bride promises not only monogamy, but also to feed, shelter, care for her groom and what the financial (and possibly legal) implications of the marriage dissolving might be. In such a case, the standard ketubah would only require a clause promising the groom’s monogamy for the parallel to be complete.

In this solution, the groom would effect kiddushin by handing the bride the document detailing her responsibilities—or she could accept it through kinyan sudar[acquiring through taking up an object] with a scarf or pen—and the bride would hand the groom perhaps the ketubah and a scarf or pen, thereby effecting the kinyan through which his ketubah responsibilities are acquired. If the couple wished to do an exchange of rings, they could do so after this, to be clear that shtar [a document], not kesef [money/a ring], is the means of acquisition.

This solution has the advantage of being kosher kiddushin, and for having parallel responsibilities or promises “sold” in the respective documents—there are two kinyanim, one representing each party’s “selling.” It lacks, perhaps, the romantic or “traditional” feeling of a ring being used to effect kinyan, but of course avoids that method’s many drawbacks.

Unfortunately, with this solution, the groom is still the only party engaging in acquisition—he acquires the bride (or at least her sexuality and other ketubah-like promises) through kiddushin, and then acquires the responsibilities of his own ketubah through kinyan sudar. Though the bride’s level of participation and responsibility is much more on par with the groom’s level, he is still fundamentally the actor in this drama. Please see the article by R. Dov Linzer for more information on some of the underlying concepts, here.

ADVANTAGES: Halakhic kiddushin, enables bride and groom responsibilities to be relatively parallel, makes the ring-for-ketubah exchange of the Linzer model much more parallel.

DISADVANTAGES: Doesn’t “feel” like traditional kiddushin and the ring exchange, the woman is still technically acquired, couples lose the opportunity to detail each party’s responsibility to the other in one ketubah, one single document.

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Let Halakha Follow Minhag

The Reconstructionist-ordained Rabbi David Mivasair argues (Beckerman, Cheryl. “Kiddushin and Kesharin: Toward an Egalitarian Wedding Ceremony.” Kerem vol. 5, Spring 1997.) that, as more heterosexual couples embrace a ceremony in which both male and female parties use the traditional formula of acquisition–harei at[ah] mikudesh[et] li… (“Behold, you are set apart for me with this ring according to the laws of Moses and Israel”). This statement, plus a ring exchange with the intention of mutual kinyan (acquisition), the minhag (custom) will, as many minhagim have, eventually be transformed into halakha (law) with a corresponding weight. He writes, “As more and more couples have the women say these words under the huppah at their weddings, doing so [is becoming] dat Moshe v’Yisrael. (the law of Moses and Israel)”

While this is a nice sentiment, one that might one day come to pass, it certainly does not reflect our contemporary world. For the moment, the bride’s utterance of the harei atah mikudesh li formula is, by most authorities, either irrelevant (because she does it second, after she has been acquired already, and it’s thus an utterly meaningless statement with no legal weight) or it’s understood to cancel the kinyan transaction, as it is parallel to the groom’s gift and can be read as a “giving back” of the ring. In no way, at least according to traditional halakha, can the woman acquire the man with this formula.

Secondly, even if we hope and trust that this minhag is incorporated eventually into halakha, we still remain with the problem of the halakhic status of weddings performed until this happens. Nonetheless, as a form of civil résistance and protest for halakhic change, this might be quite powerful.

ADVANTAGES: Feels equal, everybody gets a ring and a voice under the chuppah, it’s same-sex friendly, and it has an activist dimension to it.

DISADVANTAGES: It’s either irrelevant to kiddushin of bride or it cancels the kiddushin of the bride (and one should know which one it is!), as a “minhag trying to create halakha,” it’s not likely to be recognized by authorities as halakhic, has somewhat of a confused attitude about whether this is a halakhic ceremony or a non-halakhic ritual.

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Pilagshut

A relatively recent article by Dr. Tzvi Zohar in Akdamot has seemingly raised the whole pilagshut (concubinage) issue again, but, really, people have been talking about it for a while, now. Hirhurim notes a few other sources (and rebuttals), and I’m pretty sure R. Arthur Waskow was supporting this notion as a replacement for kiddushin a while back as well.

In short, a pilagesh is a woman permitted to sleep with a man, and (see Sanhedrin 21a) there’s no ketubah and no kiddushin involved. With no contract and no responsibility, there’s also no certainty of duration–the encounter can be for a night or a lifetime. The only thing that makes it “kosher” is that the woman can’t be in niddah (a state of menstrual “impurity”) and has to go to the mikveh after niddah and before intimate relations.

For some people, perhaps, there’s interest in making up an offical “pilgashut” agreement, wherein the woman becomes the pilegesh of the man, in lieu of kiddushin or its variations.

ADVANTAGES: Nobody gets bought, there’s no get issue, it’s a way of putting very modern idea into an ancient Jewish framework, it’s a way of giving a ritual a Jewish flavor if one primarily wants a civil/secular, rather than halakhic marriage.

DISADVANTAGES: There’s no ritual/legal binding, nobody is responsible or obligated to anyone else (which, at least to me, gives the thing a lot less weight and meaning, but I suppose others might see this as a pro), setting this up in a ritualized way is almost superfluous, since the whole point of pilagshut is that you don’t need the bells, whistles and contracts.

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Brit Ahuvim

Rachel Adler, in chapter 5 of her Engendering Judaism, details a wedding ceremony meant to be a “lover’s contract,” based on shutafut, a traditional model for partnership (usually business partnerships) rather than the traditional model of marriage.

I don’t have the book handy–it’s in another country–so I’m not going to write about the ritual’s mechanics in detail. If someone does, feel free to email me; otherwise, anyone interested should just check the book for oneself.

It’s not clear to me whether a couple using her ceremony would be legally obligated as a business partnership (and what that might entail). I don’t know enough about hilchot shutafut to know how, halakhically, one might end a partnership. I suspect that there’s more than simply walking away, but this isn’t something I’ve studied in detail. Anyone who knows, please email me or comment here!

ADVANTAGES: Does not require a get, is fully egalitarian, is same-sex marriage friendly, has a historical connection to Jewish ritual history (ie, it’s not a ceremony invented whole-cloth). Is possibly binding legally.

DISADVANTAGES: It’s not kiddushin, so halakhically one is not fully married (I recognize that, re: the get issue, this is a plus for some people), it doesn’t “feel” like the traditional ceremony. Unclear (to the author of this site–I need to go learn this) what needs to hapen to “unbind” a partnership.

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Kinyan via Pleasure

It’s written in Kiddushin 7a:

Raba said, ‘What [if a woman declares,] ‘Here is a maneh and I will become betrothed to you’? Mar Zutra ruled in R. Papa’s name, she is betrothed…. In return for the pleasure [she derives] from his accepting a gift from her, she consents to the betrothal.

In her book Life on the Fringes: A Feminist Journey Towards Traditional Rabbinic Ordination, R. Haviva Ner-David suggests that this could be a useful basis for a wedding ceremony.

While the woman is still unilaterally acquired–here, through receiving the pleasure of gift-giving rather than through an object–the kinyan according to this logic is affected by means of her active giving of an object (say, a ring) to her husband-to-be.

Ner-David, in the book, suggests that this might be taken further, to make the ceremony more parallel on all sides. In her formulation, after the bride gives the groom a ring (and receives pleasure from doing so) he then takes a vow of monogamy to parallel the sexual dedication of his wife-to-be. She declares that she has received pleasure from giving a ring and hearing this vow, and then he can give her a ring, declaring her betrothed by means both of this second ring, and the pleasure she had received.

R. Ner-David herself acknowledges the problems inherent in this solution. She writes, “this ceremony… would not solve the problem of the unilateral nature of the marriage, since a kinyan is still the basis of the ceremony…Nevertheless, it does give a different feel to the ceremony….”

ADVANTAGES: It’s halakhic kiddushin, the bride’s giving of a ring has an integral halakhic role in the ceremony, the groom (in Ner-David’s addition) obligates himself to monogamy just as he obligates the bride to monogamy.

DISADVANTAGES: The kinyan here is still very much the acquisition of a woman, vows are tricky in Jewish law (see link below).

More on vows here.

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The Linzer Model

Rabbi Dov Linzer, Rosh Yeshiva at the left-leaning Orthodox Chovevei Torah, wrote this article on increasing women’s roles under the chuppah.

The practice in Sephardic communities and in Jerusalem is for the groom to assume his ketubah obligations under the chuppah, immediately following the kiddushin. This obligation is assumed through an act of kinyan, classically performed by the groom taking an object (often a handkerchief or a pen) from the officiating rabbi in the presence of witnesses. However, since the groom is obligating himself to the bride, it is actually more appropriate that the bride, and not the rabbi, give him the object. This object can be a ring…. Such a ceremony makes it explicit that the bride is not doing an act of kiddushin, but rather initiating the groom’s acceptance of the ketubah obligations. It allows for the bride’s giving of the ring… to play a central halakhic role.

This practice, if not detailed explicitly as such, has philosophical roots in the Hatam Sofer, who very much envisions the taking on of the ketubah as a parallel to kiddushin. He writes,

In the case of betrothal, there is no buyer or seller, but rather halifin [exchange]. The groom ‘sells’ himself, giving over his person to his betrothed by assuming specified obligations, namely, sustenance, clothing and cohabitation. In return, [the bride] ‘sells’ herself, giving over her person by assuming the obligation of cohabitation by Torah law, and handing over her handiwork by rabbinic law. This is halifin. (Hiddushei ha-Hatam Sofer to Bava Batra 47b.)

Note the Hatam Sofer’s use of language, shifting the emphasis from acquisition to sale, emphasizing the fact that both parties are “selling” something, and de-emphasizing the fact that the groom is, in both places, doing the “buying.”

While Linzer’s model is not bad, there remains still a discrepancy between the kinyan of the male and the kinyan of the female—he acquires the responsibility for food, clothing and sheltering her, and he also acquires her monogamy.

There are ways that this idea can be extended to make the exchange more equal on both sides, as will be discussed in other posts.

in brief:

ADVANTAGES: This kiddushin is halakhically sound, gives the woman more agency under the chuppah, and there is a feeling of equal trade going on, the woman gives the man a ring that is halakhically significant.

DISADVANTAGES: It’s not technically equal; the groom still buys the bride, and though he also acquires his ketubah responsibilities (as he does in every traditional Jewish wedding), she acquires nothing from him, technically, and his sexuality is not regulated in any way.

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Welcome to The Kiddushin Variations

As a rabbinical student, I became interested in a question that has both interesting theoretical layers and serious practical implications.

In the first part of the traditional Jewish wedding ceremony (called Kiddushin), the groom hands the bride a ring, and, by doing so, acquires her (the technical word for this transaction is kinyan.) Some (Judith Romey Wegner, among others) argue that he is “just” buying her sexuality, the right to monogamy, and others argue that the aquisition is more general than that. But in any case, the sources are pretty clear about what’s happening.

My question was, is there any way to have an egalitarian, kosher (halakhic) wedding ceremony–in which nobody is bought or, possibly, both groom and bride buy each other?

I wrote a little research paper on the question, and then discovered that I couldn’t escape it. Friends getting married were asking me for help, I took a class on the halakah [Jewish law] that turned out to be all about the problems of kiddushin. I was invited to join a feminist study group, and it turns out they were already knee-deep in the question of kiddushin.

In short, I’ve started to hear a lot of ideas on what Jews who are both committed to tradition and to a more egalitarian sensibility might do in a wedding ceremony. I don’t agree with all of them, but for the purposes of the site, that’s not the point–rather, it’s a space to catalogue all of the various ideas people are having on this question, and to make space for discussion and debate.

I’m pretty sure there’s not one perfect solution, certainly not one that’s perfect for everybody. For some, a more traditional kiddushin might be important, and perhaps folks’ll be happy to see some ways to do that give the bride more of a role in the ceremony. For others, discarding the notion of acquisition altogether is important, and they’re looking for a meaningful substitution. And other folks might want to have their cake (a halakhically binding ceremony) and eat it too (that is also feminist). Filter the advantages and disadvantages as you like; my bias is all over this project, and you’re encouraged to chuck it for your own biases instead.

As I get the time (and then, as I hear of more ideas), I’m going to post what I know on this site, so that it can be a good general resource for people who might be looking for something like this. I’ll more or less describe the idea, offer whatever I might have in terms of its textual basis, and offer some very off-the-cuff thoughts on its advantages and disadvantages for couples who are trying to figure out how to do this, from my own vantage as a feminist committed to the tradition. Obviously, the gender thing looms large in a lot of these suggested rituals, but some should also be of interest to same-sex couples as well.

If you’re reading this site and not the type who’s well-versed in the ins and outs of Jewish law, please discuss whatever you’re thinking re: your own ceremony with a rabbi who is. I don’t claim authority or halakic purity for any of these methods; they’re just things that smart people have suggested to me, and I wrote them down. Please do not try to operate this heavy legal machinery without a serious understanding of how it works.

It’s not meant to be comprehensive or the final word on anything–it’s more of a sketchbook of the ideas I’ve been hearing in various places. I’ll cite the idea’s author whenever I have one (and/or I’ve been given permission to do so). For more information about me, and who the heck I am, feel free to check out my personal site here.

If you have a shita (method) that you don’t see posted here, please, by all means–contact me!! And, obviously, please offer comments on these ideas–other factors that I haven’t mentioned, information I don’t have, and so forth.

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