A women is “acquired” in three ways in three ways… with money, a contract or marital relations.
The above Mishnah, the first of the new masechet, discusses the various mean of performing kidushin – halachic engagement. Traditionally kidushin and nisuin (marriage) were distinct ceremonies with a significant break in time between them. Nowadays however, both kidushin and nisuin are performed together.
The first Mishnah however leaves us with a number of questions. What exactly is being achieved by kidushin? Why is it performed in such a mundane manner? Why does the Mishnah use the language of “acquisition”? Is kidushin really equivalent to purchasing a property?!
Indeed when finding a source for the use of money for kidushin, the Gemara draws a linguistic parallel between the pasuk describing a man “taking” a wife (“yi’kach”) and the pasuk that describes the transaction between Avraham and Efron when he purchased ma’arat ha’machpela (“kach”). This may lead some to believe that the Gemara is equating one’s wife with property.
The Avnei Miluim flatly rejects any such notion bringing multiple proofs that an arusa (a woman having undergone kidushin) is not anyone’s “property”. The reference to acquisition (kinyan and in other contexts kinyan kaspo) is not monetary, but rather termed “kinyan issurim”. In other words, through kidushin the husband acquires a kinyan issur in that the wife is prohibited to all other men by virtue of being an eshet ish.47
Other Rishonim elaborate further explaining that the parallel drawn to Sde Efron is for the purpose of teaching that the language of kicha implies a transaction or acquisition using money, and certainly not to equate a wife with property.
At first then this appears strange – why going through such mundane motions to bring about something so sacred. The Maharshal points out the kinyanim do indeed exist in the world of kedushah (which is also referred to as kidushin). For example the concept of a kinyan is found with respect to ma’aser sheni. Consequently a kinyan in kidushin is not necessary novel. Nonetheless, why is it employed?
The Rambam, when beginning the laws of marriage (Ishut) writes as follows:
Prior to the giving of the Torah, a man would meet a women in the marketplace. If he wanted her and she wanted him, he would bring her home, have marital relations privately and she would be his wife. Once the Torah was given, Yisrael was commanded that if a man wanted to marry a women he would first “acquire” here in front of witnesses. After that she could be his wife...
Matan Torah brought with it the innovation of this intermediate stage prior to marriage – kidushin. It also brought the novelty that kinyan can affect the world of issurim. Why? Rav Michael Rosensweig explains that these structured and monetary motions function as a solid choosing of one’s spouse in contrast to the whimsical means of partnering that preceded it.
Rav Rosensweig continues to explain that this is the reason for the strange text of the bracha recited on eirusin:
Blessed are you Hashem…. Who has sanctified us with His commandments, and has commanded us regarding forbidden unions; who forbade betrothed women to us, and permitted women who are married to us through canopy and consecration. Blessed are You Hashem, Who sanctifies His people Israel through canopy and consecration.
The reference to issurim and mutarim is now completely relevant. The extended text tells the story of the inherent different between ishut (Jewish marriage) and znut (promiscuity); it is this fixed middle stage. Kidushin itself represents the very sanctity of Am Yisrael. That is why it ends with mekadesh yisrael.48
47 See perhaps a similar understanding in the Ran Kidushin 2a s.v. Ha’Isha
48 Rav Rosensweig uses this to explain the Rambam’s opinion that there is mitzvah of kidushin (see ketoret Hilchot Ishut). This would appear strange. Why should there be a mitzvah on a kinyan that is oser? If the kinyan is understood as a solid choosing of such importance, the mitzvah is well understood.
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