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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