Shiur #20: The Mitzva of Kiddushin

  • Harav Aharon Lichtenstein

Based on a Shiur by HaRav Aharon Lichtenstein*

 

 

TWO TYPES OF MITZVOT

 

            Fundamentally, mitzvot can be divided into two categories:

 

1)         Mitzvot that teach man how the world should run.  For example, the laws of kinyanim (modes of acquisition), the sacrificial order, and the like.

 

2)         Mitzvot that teach man what to do when things go wrong.  For example, the laws of personal injury and damages, the laws of disqualified sacrifices, and the like.

 

It seems that this division is no accident.  The legal world is structured in such a way that it can deal both with how the world should run le-khattechilla (ab initio) and with how it can be run be-di'eved (ex post facto).

 

Seder Nashim is an Order of the Talmud in which we find teachings of both types: for the most part, Tractate Kiddushin deals with the ways in which things are supposed to happen, whereas the other tractates (Gittin, Ketubbot, Yevamot, Sota, etc.) deal with "problem-solving."  Indeed, our Sages themselves note at the end of Tractate Gittin (90b), after nine chapters of analyzing the minutiae of divorce law, that even the Altar sheds tears whenever a marriage ends in that way:

 

For Rabbi Elazar said: "Whoever divorces his first wife, even the Altar sheds tears over him, as it is stated (Malakhi 2:13-14): 'And this is the second thing you do: you cover the altar of God with tears, with weeping and with sighing, so that He will not regard the offering anymore or receive it with good will from your hand.  And you say, "Why is this?"  It is because God has borne witness between you and the wife of your youth, against whom you have dealt treacherously; yet she is your companion and the wife of your covenant.'"

 

            Clearly, then, the loss of one's husband or wife is an unnecessary tragedy, whether the marriage terminates in divorce or the death of one of the parties.

 

IS THERE A MITZVA TO MARRY BY WAY OF KIDDUSHIN?

 

            At the beginning of the Book of Nashim in his Mishneh Torah, the Rambam counts seventeen mitzvot that fall into the realm of marital law.  The first mitzva that he counts – which is the subject of this shiur – is "To marry a woman with a ketubba and with kiddushin."  The Rambam's wording implies that this mitzva is composed of three elements: to marry a woman, to marry her with kiddushin, and to marry her with a ketubba.

 

            We must understand what exactly we mean when we say that there is a mitzva "to marry a woman with a ketubba and with kiddushin."  As we know, there is a mitzva to have children (which the Rambam counts as #212, immediately preceding this mitzva).  Hence, the question arises whether or not there is a separate mitzva to get married, beyond the obligation of having children.  Furthermore, is there a mitzva to enter into such an arrangement by way of a ketubba and kiddushin?  Perhaps the ketubba and the kiddushin are merely technical elements – instruments that allow a person to reach the desired state of marriage?

 

            The Ramban opens Hilkhot Ishut (1:1) by saying:

 

Before the Torah was given, a man would meet a woman in the marketplace, and, if both were agreeable, he would take her to his home and consummate the marriage in private, and she would become his wife.  Once the Torah was given, the [nation of] Israel was instructed that if a man wants to marry a woman, he must first legally betroth her in the presence of witnesses and only thereafter could she become his wife, as the verse (Devarim 22:13) states: "When a man will take a woman and come to her."

 

            The Rambam writes that if a person wishes to marry a woman, he must do so by way of a formal mode of transaction ("taking") conducted in the presence of witnesses.  The Rambam does not discuss here what happens if he fails to do so.  This point is discussed in the second mitzva listed by the Rambam:

 

No woman shall be husbanded (tibba'el) without a ketubba and kiddushin.

 

            By using the verb form of "ba'al" (husband), the Rambam implies that one can create a state of marriage even without a ketubba and kiddushin, though one is forbidden to do so. 

 

            Marriage without a ketubba and without kiddushin brings us back to the situation "before the Torah was given" – the situation that applies to the descendants of Noach, all human beings who are not Jews, who are not bound by the Torah and its 613 commandments.  Indeed, the Gemara (Sanhedrin 57b) learns from the definition of a married woman as "be'ulat ba'al" (Bereishit 20:3) that with respect to descendants of Noach, any ceremony under a chuppa (wedding canopy) is meaningless without consummation (be'ila).

 

Non-Jews have the existential reality of marital life, without the formal, legal process that accompanies this reality among Israel ever since the Torah was given at Sinai.

 

            However, despite the fact that the Rambam implies that kiddushin is a condition for marriage and that it creates a certain legal status, it is still unclear whether we are dealing with an independent mitzva or with a process that makes possible the mitzva of procreation.

 

THE RAMBAM'S POSITION

 

            It would seem that a precise reading of the Rambam's ruling in 1:2 teaches that kiddushin is an independent mitzva:

 

This betrothal is a positive Torah precept.

 

            On closer examination, however, we see that this conclusion is not necessary.  The Rambam may not mean to say that betrothal is an independent mitzva, even though he uses a formula that implies that this is his position.  For there are, indeed, other places where the Rambam writes that a particular act is "a positive precept," even though it is clear that we are not dealing with an independent mitzva.  For example, in his Sefer Ha-mitzvot, the Rambam mentions the mitzva that a zav (a man suffering from gonorrhea) is tameh ritually impure:

 

Mitzva #104 is that He commanded us that a zav is tameh.

 

            Is there a mitzva that a zav be tameh?  Of course not!  What the Rambam means is that should a man contract the ritual impurity of a zav, there is a mitzva to perform the various actions that he mentions in the continuation.  The term "mitzva" does not relate to being tameh itself, but to the process that comes in the wake of becoming tameh.  Therefore, the fact that the Rambam states that there is a mitzva to marry a woman with a ketubba and with kiddushin does not necessarily mean that there is an independent mitzva to do so, and we can still say that we are dealing with a process that makes possible the mitzva of procreation.

 

            It might be possible to determine the Rambam's position by comparing what he says about the mitzva of kiddushin to what he says about the mitzva of divorce.

 

            In Sefer Ha-mitzvot, the Rambam describes the mitzva of kiddushin:

 

Mitzva #213 is that He commanded us to husband by way of kiddushin: either to give something into the hand of the woman, or by way of a deed, or by way of intercourse.  This is the mitzva of kiddushin.

 

            In contrast, regarding the mitzva of divorce, the Rambam writes:

 

Mitzva #222 is that He commanded us to divorce with a bill whenever we wish to divorce.  This is what He, may He be exalted, says: "Then let him write her a bill of divorce and give it in her hand" (Devarim 24:1).

 

            It is absolutely clear that a person who divorces his wife does not fulfill a mitzva, but rather he conducts himself in accordance with the principles of Halakha in order to realize his desire to divorce.  Nevertheless, the Rambam refers to divorce as a "mitzva," and includes it in his count of the 613 biblical mitzvot.  Can we infer from here that it is a good thing to divorce one's wife?  God forbid!  All that the Rambam means is that if a person decides to divorce his wife, he must do so in the manner prescribed by the Torah.  Thus, it may be argued that just as in the case of divorce, there is no mitzva, so too in the case of kiddushin, there is no mitzva, but rather we are dealing with a method through which one may reach the state of marriage.  Simply put, we have a "mattir," a mechanism which permits one to enter into a desired state.

 

            There are, however, two indications that the Rambam maintains that kiddushin is, in fact, an independent mitzva.

 

            Regarding divorce the Rambam writes: "He commanded us to divorce with a bill," but he immediately qualifies this by adding: "whenever we wish to divorce."  In contrast, regarding marriage, there is no similar qualification.  It may be inferred therefore that, according to the Rambam, kiddushin is an independent and obligatory mitzva that does not rest on one's will or future actions.  In addition, regarding the mitzva of kiddushin, the Rambam concludes by stating: "And this is the mitzva of kiddushin."  No similar conclusion is found in the laws of divorce, and therefore it may be inferred that whereas the giving of a bill of divorce is merely the technique of divorcing a woman, the act of kiddushin is an independent mitzva.  Let us emphasize once again: according to this understanding, the act of kiddushin itself is a mitzva, and not the fact that it is a mattir for entry into the state of matrimony!

 

THE POSITION OF THE ROSH

 

            It seems that our uncertainty concerning the Rambam's view of kiddushin finds expression in a disagreement among the Rishonim.

 

            As is well known, at weddings we recite birkat chatanim, the bridegrooms' blessing, also known as birkat eirusin, the betrothal blessing; it immediately precedes the act of kiddushin, when the groom gives the bride a ring before witnesses.  Though we nowadays perform this under the chuppa, originally this was done in the bride's home, twelve months before the wedding ceremony.  Birkat chatanim is long and clumsy, and it does not focus on the mitzva of betrothal:

 

Blessed are You, God… who has commanded us concerning illicit relations, and has forbidden to us those who are [merely] betrothed, and permitted to us those who are married to us through chuppa and kiddushin.  Blessed are You, O Lord, Who sanctifies Israel by way of chuppa and kiddushin.

 

            Why is this blessing different from the classic blessings recited in connection with the performance of mitzvot with which we are familiar from other contexts?  Why is the formulation of birkat chatanim so clumsy and awkward?

 

            The Rosh in Ketubbot (1:12) relates to this question:

 

There are those who ask about the text of this blessing, why do we not say: Who has sanctified us with His commandments and commanded us to betroth a woman?  Furthermore, where do we find a blessing like this that we recite a blessing about what the Holy One, Blessed be He, forbade to us?  Surely we do not recite a blessing that He forbade us [to eat] a limb taken from a living animal and permitted us a slaughtered animal?  Moreover, what is the purpose of mentioning illicit relations here?  Furthermore, why should we mention chuppa here, inasmuch as birkat eirusin is recited in the house of betrothal and without a chuppa?  It seems to me that this blessing is not a blessing over the performance of a mitzva, because the mitzva is fulfilled with procreation.

 

            There are two novel ideas in the words of the Rosh: The blessing is not a blessing over a mitzva, and what is more, there is no mitzva of kiddushin, but only that of procreation:

 

If he took a concubine and fulfilled [the mitzva of] procreation, he is not obligated to betroth a woman.  Similarly, one who marries an elderly or infertile woman, or an impotent man who marries, recites birkat chatanim, even though there is no obligation in this mitzvafor there is no fulfillment of the mitzva of procreation.  Therefore, no blessing was instituted for this mitzva.

 

            In the continuation, the Rosh explains that for this reason, birkat chatanim is a blessing of praise rather than a blessing over a mitzva.

 

            In contrast, the Rambam (Hilkhot Ishut 3:23) rules:

 

Whoever betroths a woman, whether on his own or by way of an agent, must recite a blessing before the betrothal, he or his agent, and then he betroths her, in the manner that one recites a blessing over all the mitzvot.  If he betroths [a woman] without reciting a blessing, he should not recite the blessing after the betrothal, for this is a blessing recited in vain – what has been done is already done.

 

            According to the Rambam, in contrast to the Rosh, birkat chatanim is a blessing recited over a mitzva, and therefore it should be recited "in the manner that one recites a blessing over all the mitzvot."

 

            Here we may ask: does the fact that birkat chatanim is a blessing recited over a mitzva allow us to decide the issue raised above and assert that, according to the Rambam, kiddushin is a separate mitzva?  Even though I am inclined to answer in the affirmative, this is not a necessary conclusion.  On various occasions, I heard from Rav Joseph B. Soloveitchik that blessings are recited not only over mitzvot, but over actions that serve as a mattir as well.  He proved this from the blessings recited over ritual slaughter and an eiruv (the union of separate domains for Shabbat), both of which are not independent mitzvot, but rather actions that come to permit eating or carrying.  Thus, it may be argued that even if birkat chatanim is a blessing recited over a mitzva, this does not necessarily prove that kiddushin is an independent mitzva!

 

THE POSITION OF THE RAMBAN

 

            The Ramban in Ketubbot (7b) also raises the question regarding the nature of birkat chatanim:

 

It may be asked: where do we find a blessing like this?  When do we recite a blessing over what God has forbidden to us?  Surely a person does not recite a blessing that [God] has forbidden to us an organ from a living animal, but he has permitted to us a slaughtered animal!  Furthermore, what is the purpose of [mentioning] illicit relations here!  Moreover, now she is not permitted; why then recite the blessing [now]?…  Even if chuppa is by Torah law, since the chuppa and the kiddushin are not performed at one time, and half of the mitzva is performed during the kiddushin, it would have been necessary to recite over it, "Who has sanctified Israel," for over all mitzvot, the blessing is recited prior to their performance.  Were the chuppa performed now, we would have recited: Who has sanctified us with His commandments and commanded us about kiddushin and a chuppa," as we recite a blessing over ritual slaughter.  But now we cannot recite the blessing: Who has commanded us about kiddushin and a chuppa, for the chuppa is not performed now; and we cannot say: Who has commanded us about kiddushin, for nowhere do we find that a person recites a blessing over a mitzva if the present action is not its completion.

 

            According to the Ramban, a blessing cannot be recited over the chuppa and the kiddushin, because they are not performed at the same time.  According to this, the Ramban's view is situated between that of the Rosh and the Rambam.  Whereas the Rosh maintains that kiddushin does not constitute a mitzva, and the Rambam seems to maintain that it is a mitzva, according to the Ramban, kiddushin is a mitzva, but it is only "half a mitzva."  The second half of the mitzva is being beneath the chuppa.

 

THE POSITION OF THE MORDEKHAI

 

            The Mordekhai at the beginning of Ketubbot (132) seems to agree with the Ramban:

 

That which we do not recite a blessing: Who has sanctified us with His commandments and commanded us to betroth a woman, is because its performance does not constitute the completion of the mitzva.

 

            Nevertheless, the Mordekhai continues with the following note:

 

Also, at the time of marriage, we do not recite a blessing over the marriage, for perhaps it will be a blessing recited in vain: perhaps they will not merit to establish [a household] together.

 

            It stands to reason that the Mordekhai does not mean to say that perhaps the couple will not merit to have a happy marriage, but rather that they will not merit to have children.  Accordingly, the end of the passage follows the Rosh, and not the Ramban — namely, that kiddushin is merely a mattir for the mitzva of procreation.

 

            Nevertheless, there is a difference between the words of the Rosh and those of the Mordekhai: according to the Rosh, even if the couple would know for sure that they will have children, they would not recite a blessing over the mitzva of kiddushin, because it does not constitute a separate mitzva; according to the Mordekhai, on the other hand, the only reason that a blessing is not recited over kiddushin is the concern that the couple will not be blessed with children.  The implication is that if the couple would know for sure that they will have children, they would recite a blessing over the mitzva of kiddushin.  Apparently, according to the Mordekhai, kiddushin constitutes a mitzva act, provided that it advances the couple toward the fulfillment of the mitzva of procreation.

 

            If this is correct, then the Mordekhai maintains an intermediate position, between the view of the Rosh and the view of those Rishonim who say that kiddushin constitutes an independent mitzva.

 

SUMMARY

 

            We have seen several different approaches to the mitzva of kiddushin:

 

1)         According to the Rambam, we seem to be dealing with an independent mitzva.

 

2)         According to the Ramban, we are dealing with "half a mitzvah."

 

3)         According to the Mordekhai, we are dealing with a mitzva provided that it advances the couple toward the fulfillment of the mitzva of procreation.

 

4)         According to the Rosh, there is no mitzva at all in kiddushin, and the only mitzva is that of procreation.

 

 

(Translated by David Strauss)

 

* This shiur was summarized by Shaul Bart; it has not been reviewed by HaRav Lichtenstein.