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.

1 Comment

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One response to “Free People Can’t Be Bought

  1. sarah m

    Is there any evidence of this argument historically being applied to widows or divorcees remarrying?
    I would guess that many rabbis would reject this argument on those grounds.

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