This week, Daf Yomi readers began a new tractate, Kiddushin. Though Kiddushin is the last tractate in Seder Nashim, the section of the Talmud devoted to laws about women and marriage, it would have more logically come first, since it deals with the first part of the marriage transaction: betrothal. Just as, in American culture, a couple is first engaged and then married, so under Jewish law marriage is a two-part process. First the man acquires his wife through betrothal, then he marries her through a contract and a ceremony. The difference is that, while engagement is a purely symbolic relationship that usually has no legal status, betrothal or kiddushin already confers on the couple certain rights and responsibilities.
By now, Daf Yomi readers have gone through the tractates covering marriage contracts and bills of divorce, and we are accustomed to the idea that marital status is changed by means of a written document. However, the first mishna in Kiddushin 2a makes clear that betrothal is different. While it can be performed with a document, it can also take place in two other ways, with money or with sexual intercourse. Each of these means of betrothal is further defined and regulated in the Gemara, and in the course of the very long discussion, their moral implications emerge, indirectly, as matters of great interest.
The first words of the mishna are “A woman is acquired,” which might seem to make betrothal equivalent to the purchase of a slave or a piece of land: In all these cases, the man is gaining ownership of something. Yet things are not so simple, as the Gemara goes on to explain when it examines the language of the mishna. Why, the rabbis ask, does the mishna state “a woman is acquired,” rather than “a man betroths”? In the Talmud, the exact choice of words is always critical; there is always a conscious reason why the tannaim put things one way rather than another.
In this case, the Gemara explains that the phrase “a woman is acquired,” despite the way it might sound, is actually meant to communicate that the woman is an active participant in the process. “If the mishna had taught: The man acquires the woman, I would say that he can acquire her even against her will,” the rabbis say. After all, a man acquires a cow or a slave regardless of whether they consent. But betrothal is different: “Therefore the mishna taught: The woman is acquired, from which it may be inferred that with her consent, yes, he can acquire her as a wife, but when he acts without her consent, no, she is not betrothed to him.” Betrothal is therefore an acquisition, but a consensual acquisition—at least once the woman reaches the age of legal majority, which is 12. Before that age, a father can betroth his daughter to a man without her consent, though as we have seen in earlier tractates, she retains a right of refusal that she can exercise when she reaches adulthood.
Still, a woman engaging in betrothal is not fully autonomous, as can be seen from the laws governing the use of money in betrothal. If a man betroths a woman with a document, he gives it directly to her; likewise, if he betroths her through sexual intercourse, he obviously has it with her. If he uses money, however, she does not keep it; rather, the money belongs to her father. The word “patriarchy” is often used to criticize sexist institutions in American society, but in the Talmud we see a literal and undisguised patriarchy: Women belong to their fathers until they are sold to their husbands. The requirement of consent is the only way in which the process differs from a property transaction. Indeed, the Gemara derives some of the laws about purchasing a wife from the biblical account of Abraham’s purchase of the cave of Machpelah.
We have seen in several tractates that the Talmud is very concerned about eliminating ambiguity from transactions like marriage, divorce, and oath-taking. Because these are what modern analytic philosophy calls “speech acts”—declarations that create real-world legal effects—it’s necessary to determine exactly what forms of speech must be used to avoid accidents and confusion. If a man gives a woman money, he must accompany it with a clear declaration such as “You are hereby betrothed to me,” or “You are to me as a wife.”
The form of this sentence focuses on the woman, for it is she whose status is being changed in the betrothal. In a strict sense, indeed, a man cannot be betrothed; he is the purchaser, while the woman is what he is acquiring. Thus if he phrases the declaration as pertaining to himself—“I am hereby your man,” or “I am hereby your betrothed”—there is no betrothal. Likewise, if the woman gives the money to the man, or the woman makes the declaration, the betrothal is invalid, since she doesn’t have the power to betroth herself, only to consent to be betrothed. As for more ambiguous and poetic statements of betrothal, such as “you are my helper” or “you are my rib,” the Gemara declares, teiku, “it shall stand unresolved”: These terms are not crystal clear, and so the rabbis aren’t certain they can be employed.
The Gemara goes on to raise a series of hypothetical questions about the money used in the betrothal. A woman must be betrothed with cash or an item worth at least one peruta, a small denomination coin; purely symbolic transactions, or nugatory amounts of money, are not allowed. (According to Rashi and other commentators, this is because a smaller amount of money would be insulting to the woman, and to women in general, implying that they are of no value.)
But this rule allows for several areas of ambiguity, which the rabbis go on to explore. What if a man betroths a woman with an item such as silk clothing, which is evidently valuable, but he does not actually know exactly what it is worth in money? Can we assume that it meets the one peruta threshold, or does he need to have an actual price put on it? Here the rabbis disagree: Rav Yosef says an appraisal is necessary, while Rabba says it isn’t. The rule, according to the rabbis, is that uncertainty about the value is permitted, so long as the man doesn’t promise the woman an item of specific value. That is, if he says, “Be betrothed to me by any amount,” without naming a dollar value, the clothes are acceptable, since they are clearly worth some amount.
But if he says, “Be betrothed to me by fifty dinars,” how can the woman be sure that the silk clothes are worth that much? Tellingly, the rabbis draw an analogy with the purchase of a slave, as they do several times in the discussion of betrothal. A slave is acquired only through money, not with items of value like “grains and vessels”; likewise, Rav Yosef says, a wife can only be betrothed with a fixed sum. Of course, a wife is not a slave—Jewish law makes many provisions for safeguarding the rights of a wife—but the basic nature of the transaction is the same. An acquisition is an acquisition.
Further questions are raised about the transaction. What if a man says, “I will betroth you with a hundred dinars,” and proceeds to count out the money: Can the woman break off the betrothal while he is still counting it? This is a familiar kind of Talmudic question: At what exact point in a process does a person’s status change? The same kind of question is asked, in Kiddushin 10a, regarding sexual intercourse. At what point during the sex act does the woman become betrothed? Is just beginning it enough, or must the act be consummated to count?
To illustrate what is at stake, the rabbis hypothesize a rather bizarre situation, in which a woman is in the middle of having sex with one suitor, when a second suitor comes and places a document or money in her hand. Does the second suitor’s betrothal supersede the first one’s, or did the first betrothal take effect from the moment intercourse began? Ameimar rules that, unlikely as it seems, in this case the second suitor wins, since “Anyone who engages in sexual intercourse has the completion of the act of intercourse in mind.” Presumably, the rabbis define “completion” as meaning that the man ejaculates; until this happens, the act of intercourse is incomplete, and so is the betrothal. This is a good example of the total matter-of-factness of the Talmud when it comes to sex. Intercourse is a process like any other, and it must be precisely defined if it is to have legal meaning. The Talmud may not be egalitarian, but no one can accuse it of being squeamish.
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