Love and Marriage, Love and Marriage, Go Together Like a—

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Between the laws of levirate marriage, marriage contracts, divorce, and betrothal, the Talmud has more to say about the subject of marriage than virtually any other topic. Even Shabbat, the subject of two lengthy tractates in Seder Moed, is not so productive of laws and legal debates as marriage. This makes sense, because while Shabbat is the holiest day in Jewish life, its laws are commandments, not subjects for negotiation. When the rabbis say that Jews are not allowed to perform 39 categories of labor on Shabbat, there is no way for Jews to bring God to court and argue with Him about exactly what He intended. Marriage, on the other hand, is understood in Jewish law as a contract between two parties, the bride and the groom, which means that it is capable of endless refinements and disagreements. Indeed, when talking about marriage law, the rabbis laid down many rules that can apply to any kind of contractual agreement—rules having to do with intention, agency, conditionality, and other complex matters.

In last week’s Daf Yomi reading, the rabbis examined what happens to the betrothal process when it is made conditional on the performance of certain actions. This is a subject that came up extensively in Tractate Gittin, where the questions had to do with divorce: Can a divorce be made conditional on actions or payments? Can a husband make a divorce depend on his wife’s acting a certain way in the future—for instance, continuing to care for their children, or prohibiting her from marrying a certain man? In that case, the general rule was that conditional divorces are not valid, since the essence of a divorce is that it completely severs the relationship between husband and wife. If some kind of obligation remains, then the relationship is not actually severed.

Now in Tractate Kiddushin, the Talmud looks at the beginning of the marital relationship, rather than the end. Marriage, we have seen over the last several weeks, is a two-stage process in Jewish law: First the groom must betroth the bride, then he marries her through a ceremony or through sexual intercourse. It is at the betrothal stage, of course, that most of the negotiation between bride and groom, and between their families, would take place. Such negotiations, though they may seem mercenary to 21st-century Americans, have been an important part of marriage in nearly all cultures until the very recent past. (The Memoirs of Gluckel of Hameln are a vivid record of how much energy and emotion was traditionally invested in such marriage negotiations, especially by Jewish mothers.) Of course, attraction and personal preference have always been an important part of why people get married, and the Talmud allows for the rejection of proposed brides or grooms on this basis. But love can’t be codified, while property can; and so when the Talmud talks about betrothal, it is mainly talking about conditions having to do with money and land.

Chapter 3 of the tractate begins by asking about a case in which a betrothal is designed to begin at some point in the future. What if a man says to a woman “You are hereby betrothed to me after 30 days”: Does the betrothal begin after 30 days have passed, or is it considered to have begun retroactively at the moment it was declared? Ordinarily this might not make much of a difference. But what happens if a woman accepts this kind of delayed betrothal but then gets betrothed to a second man before the 30 days have elapsed. Is the second betrothal valid, or is it preempted by the first?

When the rabbis say that Jews are not allowed to perform 39 categories of labor on Shabbat, there is no way for Jews to bring God to court and argue with Him about exactly what He intended.

According to the mishna in Kiddushin 58b, everything depends on the exact language that was used in the betrothal. If the man said, “You are hereby betrothed to me after 30 days,” then until the 30 days are up, the woman is a free agent, and if she accepts another betrothal it is valid. But if the original suitor said, “You are hereby betrothed to me from now and after 30 days,” things are less clear. Which condition applies, the “from now” or the “after 30 days”? And if the woman accepts a second betrothal, is it valid or not? In the Gemara, there is a dispute about this point between Rav and Shmuel. According to Rav, the two conditions create an irresolvable ambiguity, so that if a woman is betrothed in this fashion, her only way out is to receive a bill of divorce from the first suitor that entirely cancels their relationship. Shmuel, on the other hand, believes that this uncertainty only lasts for the specified term of 30 days. After the 30 days are up, the first suitor’s claim is undoubtedly effective, and it supersedes the claim of the second suitor: “After 30 days the betrothal of the second is abrogated, and the betrothal of the first is completed.”

To make the logical point clear, the rabbis resort, as they often do, to an exaggerated hypothetical example. Say that a man betroths a woman “from now and after 30 days,” and then a second man betroths the same woman “after 20 days,” and then a third man betroths her “after 10 days.” Probably such a thing has never happened in the long history of the Jews—but if it did, the Gemara asks, which betrothals would be valid? The answer, according to Abaye, is that “she requires a bill of divorce from the first man and the last man, but she does not require a bill of divorce from the middle one.” This is a way of dealing with both possible interpretations of the law. If the first betrothal went into effect after 30 days, it would outlast the other betrothals and cancel them out; and if the last betrothal went into effect immediately, it would cancel out the previous ones. In either case, however, the middle man’s betrothal would be preempted, either by the prior man or the subsequent man.

Another kind of condition that can be placed on a betrothal has to do with money. If a man betroths a woman with the promise that he will give her 200 dinars, then they are betrothed immediately, provided he gives her the money. If, however, he promises to give her the money within 30 days, what is the status of the betrothal? Does it take effect right away, or not until the money is delivered? And if the latter, what happens if the woman accepts a second betrothal before the payment is made—does this supersede the first betrothal? According to Rav Huna, once the payment is made, the betrothal effective retroactively from the moment it was stated; by this reasoning, a second betrothal would be invalidated. According to Rav Yehuda, on the other hand, the first betrothal is only effective from the moment the payment is made, so he would allow the woman to accept a second betrothal in the interim.

The Talmud goes on to examine other kinds of conditions related to money or real property. A man might betroth a woman contingent on his demonstrating that he owns a certain amount of money or land. In such a case, the money must belong to him alone, not to him and a partner; similarly, the land must be his outright, not part of a leasehold. A trickier situation arises when a man seeks to break an engagement on the grounds that he was under a false impression about the bride. For instance, “if he claims that he thought she was poor and she is wealthy, or wealthy and she is poor,” is this grounds to annul a betrothal? The mishna in Kiddushin 62a says that it is not, provided that the woman did not actively lie about her status. Betrothal, as we have seen before, is a kind of purchase, and so the rule is caveat emptor—let the buyer beware.

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