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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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