A Detached Kiddushin

Acquiring a Wife

האשה נקנית בשלוש דרכים, וקונה את עצמה בשתי דרכים “A woman is acquired in three ways and acquires herself in two ways,” the opening mishnah in tractate Kiddushin states; it continues: “She is acquired by means of money, contract, or sexual intercourse.”

Over the last few decades, this line – with its commercial overtones – has attracted a great deal of (almost entirely negative) attention.^[1]  This attention, however, is hardly new. The opening line of b. Kiddushin immediately notices this term of acquisition, which it compares with different verbs for describing marriage used elsewhere in the Mishnah and tannaitic literature:

מאי שנא הכא דתני “האשה נקנית” ומאי שנא התם דתני “האיש מקדש”?

Why does it teach here “a woman is acquired” while there it teaches “a man betroths.”

The question of why the Mishnah sometimes uses the language of commercial transactions while on other occasions it uses the language of “betrothal” provides an opportunity for the Gemara to probe the legal nature of “betrothal.”  What exactly is betrothal and how is it like, or not, other kinds of legally governed exchanges?

At the same time, this Gemara raises significant historical questions: What legally defines a marriage for the rabbis?  In what ways did they continue or break from previous definitions of marriage? Did most Jews during Talmudic times practice marriage as the rabbis prescribed? Why did the rabbis use the term kiddushin to describe the act of betrothal, especially when, as they freely admit at b. Kiddushin 2b (see below), they themselves invented the term?

In this essay, I will focus primarily on these historical questions with the goal of creating a context within which to read the Talmudic discussions of kiddushin.

Jewish Marriage Today

Given most reader’s familiarity with the modern Jewish wedding ceremony, I would like to use this as my starting point. The traditional Jewish wedding ceremony – the time spent under the chuppah – has three distinct parts:

1. The kiddushin ceremony: This is the legal act that constitutes the marriage.  It is most succinctly described as the transfer of an object of value (freely given and accepted) from a man to a woman with a formulaic declaration of intent in front of two or more valid witnesses.  Today it almost always takes the form of the giving of an object of value (often a ring) with the recitation of  הרי את מקודשת לי בטבעת זו כדת משה וישראל , “You are now  betrothed to me with this ring according to the Law of Moses and Israel.”  From this moment on, the couple is considered legally married in Jewish law (but see 3, below).

2. The reading of the ketubbah. The traditional marriage contract, which has been signed earlier, is akin to a modern prenuptial agreement.  It is concerned with the economic relationship between the spouses, especially the husband’s economic obligations toward his wife and her children (whether they are his or not) in the case of divorce or his death.  A Jewish marriage is fully valid without a ketubbah.  In fact, according to rabbinic law all the stipulations contained in the ketubbah are assumed to be in force without any formal document explicitly stating them.

3. The seven wedding blessings (sheva berakhot; B. Ketubot 7b-8a).  These are seen as permitting the husband and wife to have sex and begin to live together.  As with the ketubbah, the recitation of these blessings is not required to create the marriage – though they point to the act of sexual intercourse, which is.^[2] Hence if the sheva berakhot had not been recited and the couple later has sex, the marriage is still valid. ^[3]

The rest of this essay will focus only on the first legal act, that of kiddushin.  To most of us it seems obvious that to form a marriage one needs a single, tightly defined and legally objective act (e.g., a marriage license).  This is hardly intuitive, though.  What I want to suggest is that most ancient Jews did not accept the rabbinic notion that kiddushin (or any other legally objective act) was necessary to form a valid marriage.

Marriage as a Natural Process

Before sketching the history of kiddushin it is worth pausing a moment for a thought experiment.  Think for a moment about a couple that you know.  They have been together for decades.  They own property together; they live together; they had and raised children together; they go everywhere together; their names regularly appear together on donation lists; they think that they are married and everyone else you know does at well.  Now imagine if they dug up their wedding certificate and were shocked to discover that there was a critical mistake on the license.  Maybe the person they thought was an official clerk was really a huckster and in the eyes of the law they were never married.  Are they married?

I think that most people, and they themselves, would think this was kind of amusing.  Annoying to be sure, but amusing nonetheless.  Of course, they were married.  They lived as if they were married and everybody around them believed they were married.  Continue to imagine that at the midpoint in this long marriage the wife had had an affair.  Few would say that it is now fine since she was in fact never legally married.

This lens is critical for understanding marriage in antiquity, both among Jews and non-Jews.  Most people “married,” but that status was determined by a protracted process that began with a “wedding” (including celebratory meals and maybe a procession), continued with consummation, and proceeded with making a life together.  It lacked a single objective moment during which the marriage was thought to take place simply because, except in extraordinary cases, it wouldn’t have been needed.  Whether a sexual relationship was adulterous or not, for example, was obvious.

In the biblical period and among Jews from the fifth century BCE to the sixth century CE, whether a couple was married or not may have mattered for the purpose of inheritance, but played no role in determining the status of any offspring; there is for example no designation in biblical or Jewish law for what we might call an “illegitimate” – that is, born out of wedlock – child.

The Biblical Beginnings of Legal Betrothal

Nevertheless, a kind of inchoate marriage developed in ancient West Asia that resembles the modern kiddushin^[4]– it creates a legal marriage but precedes cohabitation.  Men and women (or often boys and girls) could “marry,” well in advance of their cohabitation.  The purpose of this legal institution is unclear; perhaps it was meant to formalize bonds between families.  In any event, this legal institution seems to appear in the Bible under the verb ארש (in the Mishnah this is changed to ארס):

• A man who “betroths” a wife but has not yet “taken” her is given the option of recusing himself from battle (Deut. 20:7), pointing to a two stage (“betrothing” and “taking”) marital process.^[5]

• There are critical differences in the punishments meted out to the men who rape “betrothed” or “non-betrothed” women (Deut. 22:23-29).^[6]

In these passages, as well perhaps as Hos. 2:21-22 (“וְאֵרַשְׂתִּיךְ לִי לְעוֹלָם…,” traditionally recited while wrapping the tefillin around the fingers,) the verb ארש denotes an inchoate marriage, in which a legal tie exists but prior to the couple living together.^[7]

Discontinuity in the Ancient Jewish Development of Legal Betrothal

Our extant evidence suggests that this legal structure of marriage – consisting of a first stage of “betrothal” followed (perhaps some significant period of time later) by consummation and cohabitation – simply did not continue among Jews from the biblical period onwards. With only one exception (discussed below), both literary sources and legal documents found on papyri written from the sixth century BCE to the first century CE suggest that Jews did not “betroth” in this manner.  Like other Greeks and Romans, they tended to become “engaged” in the sense that we use the word: it was a serious commitment that changed no one’s legal status.  There may well have been a monetary penalty imposed on one who broke off the arrangement before a marriage, but in such cases no divorce was necessary.

The single tantalizing exception comes from the Gospel of Matthew. ^[8] Here Joseph is described as having been betrothed to Mary but not yet cohabitating with her when she becomes pregnant (Matt. 1:18-19).^[9]  Joseph considers divorcing her.  Such a story only makes sense if the betrothal was considered binding.  The author of Matthew (the most “Jewish” of all the Christian gospels), writing probably in the last first century CE, knew of the practice of a binding betrothal.  Did this author know it from knowledge of the Hebrew Bible or because this was a popular practice in his community?  While we cannot say for certain, it is at least a possibility that by the first century CE some Jewish communities had revived the practice of using binding betrothals.

Reintroducing Kiddushin in Tannaitic and Amoraic Times: A Hard Sell

The rabbinic attempt to revive an ancient institution that had mostly fallen out of practice pointedly raises the question of why they would have done so. For many (I suspect most) Jews at the time of the rabbis, kiddushin would have been a hard sell.  It would have left their children, especially daughters, in limbo, in the case of a betrothal gone bad or the death of a partner before the couple had sexual relations; a non-constitutive engagement contract with monetary penalties for non-fulfillment was far more flexible.  It lacked explicit status as a mitzvah in the Torah.

The rabbis of antiquity themselves had little power or influence in their communities.^[10] Why would any Jew have entered into a state of kiddushin when the arrangement of a non-binding betrothal worked well?  It is unlikely that most Jews practiced kiddushin as described in classical rabbinic literature.

Conditional Betrothals: The Rabbinic Loophole to make Kiddushin Relevant

There is limited if indirect evidence of the relative lack of popular interest in kiddushin in the rabbinic sources themselves.  Tractate Kiddushin devotes significant space to discussing “conditional betrothals.”  These can take a variety of forms but usually are constructed as betrothals that go into effect only upon the performance of an act, usually on the part of the prospective groom (e.g., Mishnah Qiddushin 3:6).  At first blush these seem to be odd: Who would make conditional betrothals?  On further reflection, though, one wonders if the rabbis created this option specifically as a way to get around the more negative aspects of kiddushin (for example, the case in which a betrothed man dies prior to their living together) and thus make it more appealing to more people.  Using a conditional betrothal would defer the actual constitutive moment of marriage until the performance of the stipulated action, which would presumably take place immediately prior to the wedding itself.

There is support for this line of reasoning in the Palestinian Talmud’s discussion of a document known as the סימפון (simpon, a Greek loanword).

^{ירושלמי קידושין ג:ב (סג ע”ד)} ר אבהו בשם רבי יוחנן סדר הסימפון כך הוא אנא פלן בר פלן מקדש ליך אנת פלנית ברת פלן על מנת ליתן ליך מיקמת פלן ומכנסיניך ליום פלן ואין אתא יום פלן ולא כנסתיך לא יהוי לי כלום

^{Y. Qid. 3:2, 63d} R. Abbahu said in the name of R. Yohanan: “The order of the simpon is thus: I, so-and-so son of so-and-so, betroth you, so-and-so daughter of so-and-so, on condition that I give to you a certain thing, and cause you to enter [i.e., to marry you] on a certain day.  And if that day comes and I have not caused you to enter, there will be nothing to me [i.e., you will have no claim against me].”

This is a contract that combines a conditional betrothal with a financial penalty (on the part of the prospective groom) in the case that the condition is not fulfilled.  Such a contract largely makes kiddushin into a legal fiction while preserving the advantages of a non-constitutive marriage contract.

Conditional betrothals and the simpon might thus reflect rabbinic awareness that their understanding of kiddushin would have been unattractive to most contemporary Jews.  (Of course, it is also unappealing to most modern Jews, who reduce it to a two-minute legal formality during the wedding ceremony itself.)  But again, why they would have (re)introduced the ancient practice of kiddushin in the first place, only to have to later “correct” it?

The Rabbinic Effort to Define the Moment of Marriage

The answer to this question can be found more in the general approach of the rabbis than it can in the practice and theory of marriage alone.  At every turn the rabbis seek legally objective criteria, whether in ritual, civil, or criminal law.  With marriage, there was something very big at stake: adultery.^[11] Adultery is punishable by death and even if the rabbis did not have the capacity (and hopefully desire) to administer this punishment, they felt it necessary to define “marriage” more precisely.  Similarly, rabbinic law ended up (after some debate) defining a mamzer/et as the child of a forbidden (adultery or incest) sexual relationship. Because having the status of mamzer/et made one ineligible to marry another Jew, more precise definitions of “marriage” were essential.

In their communities the general social process through which marriages began was squishy; at what point precisely is a woman to be considered “married” for purposes of knowing if she committed adultery?  The rabbis sought an objective moment before which she was not married and after which she was.  Kiddushin fulfilled this function.

Why is it Called Kiddushin?

Early on in its discussion of the first mishnah of Kiddushin, the Gemara briefly turns its attention to the term itself:

מעיקרא תני לישנא דאורייתא, ולבסוף תני לישנא דרבנן. ומאי לישנא דרבנן?

Recognizing that kiddushin is a new rabbinic term (lishna d’rabbanan, the only time that term in used in the Bavli) the Gemara asks what it is supposed to mean.  Why use this term rather than the ones found in the Tanakh?  The answer is  “that it [kiddushin] forbids her to everyone else as hekdesh (i.e., property dedicated to God).”

There are three important things to note about the Gemara’s suggestion:

1. It is a relatively late, Babylonian attempt (there is no parallel in the Palestinian Talmud) to make sense of a mishnaic term;

2. The explanation has nothing to do with the “holiness” or “sanctification” of marriage as it is often understood today;

3. Something, or someone, cannot be made hekdesh “to a person”: even the Tosafot (ad loc, s.v. דאסר) do not try to defend the suggestion, noting that when you say “this tallit is hekdesh to me” it is legally meaningless.

I have previously suggested that the real origin of the term kiddushin is to be found in Greek.^[12]  The process of “handing over” the bride to the groom in Greek marriages is called ekdosis (“giving away”).  The Tannaim may have seen in this word a term that they knew, קדש.  In its origin, then, the term would have had little connection to sanctity or exclusive ownership.  This suggestion has not found wide support but nor has it been refuted and remains to me one of the more interesting and plausible explanations for how biblical erusin came to be known as kiddushin.

Summary

The opening sugya of b. Kiddushin largely sets the stage for the rest of the tractate, which discusses in great detail what constitutes a valid betrothal.  The act of kiddushin is not seen as a sanctification of marriage.^[13]  It is a dry legal act meant to create a legally objective way to create a marriage.  The rabbinic discussion is also largely academic, directed not as much at changing common practice (although it was cognizant of such practice) as it was at working through the legal nuances of this newly resurrected practice.