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Kiddushin: Difference between revisions
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While today's engagement's only correspond to dating in a halachic sense<ref>See Mishna Brurah 493:3</ref>, there is a process called Kiddushin which is the halachic act of engagement.<ref>Kiddushin 2a, Rambam (Ishut 1:2)</ref> Once a woman is halachically engaged (''mekudeshet''), she may not marry anyone else unless she receives a halachic divorce (''get'') or if her husband dies.<ref>Mishna Kiddushin 2a, Rambam (Gerushin 1:1)</ref> If the husband dies without children, in certain cases, there is a mitzvah of Chalitza prior to remarrying.<ref>Rambam (Yibum 1:2)</ref> | While today's engagement's only correspond to dating in a halachic sense<ref>See Mishna Brurah 493:3</ref>, there is a process called Kiddushin which is the halachic act of engagement.<ref>Kiddushin 2a, Rambam (Ishut 1:2). Rav Hershel Schachter in B’ikvei Hatzon p. 195 writes that Kiddushin establishes a woman as a married woman not yet in her husband’s domain (eshet ish shelo b’bet habaal), while Nesuin give her the status of a married woman living in her husband’s domain (eshet ish b’bet habaal).</ref> Once a woman is halachically engaged (''mekudeshet''), she may not marry anyone else unless she receives a halachic divorce (''get'') or if her husband dies.<ref>Mishna Kiddushin 2a, Rambam (Gerushin 1:1)</ref> If the husband dies without children, in certain cases, there is a mitzvah of Chalitza prior to remarrying.<ref>Rambam (Yibum 1:2)</ref> | ||
== | ==Ritual Results of Kiddushin== | ||
# Once a woman is halachically engaged, it is an extremely serious sin to have relations with anyone else.<ref>Vayikra 20:10, Rambam (Ishut 1:3)</ref> Not only that, there are numerous safeguards some of which are Biblical and some of which are rabbinic which prevent a married woman from becoming too close with another man. These apply equally to a married and halachically engaged woman.<ref>With regards to [[Yichud]], see Avoda Zara 36b. Regarding the numerous other separations between men and women, such as touching, staring inappropriately, speaking together inappropriately, listening to her voice, or even thinking about her inappropriately, see the [[Appropriate Interaction between Men and Women]] page.</ref> | |||
==Procedure of Kiddushin== | |||
# Kiddushin in theory could be accomplished in one of three ways: using money, a written document, or through marital relations.<Ref>Mishna Kiddushin 2a, Rambam (Ishut 1:2), Shulchan Aruch 26:4</ref> However, accomplishing Kiddushin through marital relations is a deplorable practice and is strictly forbidden.<ref>The Gemara Kiddushin 12b records Rav's insistence on not accomplishing Kiddushin with marital relations that he would give lashes to anyone who did such. Rashi (s.v. derav) and Rambam (Ishut 3:21) explain that the reason it is deplorable is because it is licentious. Shulchan Aruch EH 26:4 codifies this as halacha. </ref> | # Kiddushin in theory could be accomplished in one of three ways: using money, a written document, or through marital relations.<Ref>Mishna Kiddushin 2a, Rambam (Ishut 1:2), Shulchan Aruch 26:4</ref> However, accomplishing Kiddushin through marital relations is a deplorable practice and is strictly forbidden.<ref>The Gemara Kiddushin 12b records Rav's insistence on not accomplishing Kiddushin with marital relations that he would give lashes to anyone who did such. Rashi (s.v. derav) and Rambam (Ishut 3:21) explain that the reason it is deplorable is because it is licentious. Shulchan Aruch EH 26:4 codifies this as halacha. </ref> | ||
# The minhag is to accomplish Kiddushin with money as opposed to a written document. <ref>Rambam (Ishut 3:21). [http://www.yutorah.org/lectures/lecture.cfm/786134/Rabbi_Hershel_Schachter/Hilchos_Siddur_Kiddushin Rav Schachter in a shiur on YUTorah ("Hilchos Siddur Kiddushin", min 4)] explained that the reason we do so is because we are registering our compliance with chazal and disagreement with the karaites who didn't accept Kiddushin through money. Nitai Gavriel (Nesuin v. 1, p. 24-5) offers kabbalistic reasons for why we do Kiddushin with money as opposed to a written document. </ref> | # The minhag is to accomplish Kiddushin with money as opposed to a written document. <ref>Rambam (Ishut 3:21). [http://www.yutorah.org/lectures/lecture.cfm/786134/Rabbi_Hershel_Schachter/Hilchos_Siddur_Kiddushin Rav Schachter in a shiur on YUTorah ("Hilchos Siddur Kiddushin", min 4)] explained that the reason we do so is because we are registering our compliance with chazal and disagreement with the karaites who didn't accept Kiddushin through money. Nitai Gavriel (Nesuin v. 1, p. 24-5) offers kabbalistic reasons for why we do Kiddushin with money as opposed to a written document. </ref> | ||
# According to a minority opinion, chupa can also accomplish Kiddushin.<ref>Rav Huna in Kiddushin 5a holds that chupa can accomplish Kiddushin based on a kal vechomer. While the Rabbenu Chananel holds like Rav Huna, most rishonim do not. See Rosh (Kiddushin 1:1) and Shulchan Aruch 26:2.</ref> Some Achronim are concerned for this opinion.<ref> Pitchei Teshuva 21:3 quotes the Shaar Hamelech who is very concerned for the opinion of Rabbenu Chananel claiming that this is also the opinion of Rashi and the Tur. This has relevance if someone did an invalid Kiddushin with kesef but used the chupa as Kiddushin whether the woman would need a get to remarry. Aruch Hashulchan 26:15 is similarly concerned.</ref> | |||
== | ===Giving the Ring and Saying Harei At Mekudeshet Li=== | ||
# | # The minhag is to do Kiddushin with a ring.<ref>Shulchan Aruch 31:2, Yalkut Yosef (Sovah Semachot 1:7:14). The Sefer Hachinuch (Mitzvah 554) adds that a reason to use a ring is so that it should serve as a reminder to her always of her marriage. See Yalkut Yosef for mystical and other reasons.</ref> | ||
# The basic procedure includes the man saying “הרי את מקודשת לי בטבעת זו כדת משה וישראל” and then handing the ring to his wife. <ref>Gemara 6a, Shulchan Aruch EH 27:1 | |||
</ref> If he gave her the ring before saying the statement, she should return the ring and do it again correctly. After the fact, even if they didn’t redo it, the Kiddushin is valid.<ref>Yalkut Yosef (Sovah Semachot 1:7:8) writes that it is important to say the hari at before giving the ring otherwise it is like getting married with a loan which is ineffective. If this happened he should take back the ring, say the hari at, and then give her the ring again. Yabia Omer EH 2:5:3 proves from Rama 27:3 that it is enough to just repeat the hari at and give the ring again and not to have to use a new ring. Rabbi Mordechai Willig (4th Year Halacha Hilchos Ishut 5) agrees that if he gave the ring first he should take it back and repeat it. Once the chatan said the words “hari at mikudeshet li” even though he didn’t finish the whole phrase the chatan should take back the ring and do it again. | |||
</ref> | |||
===Laws of the Ring=== | |||
# According to most poskim, it is permitted to effect Kiddushin with a borrowed ring if the person you are borrowing it from knows that you’re using it for Kiddushin.<ref>The Rosh (Kiddushin 1:20) explains that if a man uses a borrowed ring it is effective because even though the ring doesn’t belong to him it isn’t similar to something stolen since he is giving her the benefit of having the ring for some short period of time. Furthermore, the Rosh adds that if a person asks explicitly to borrow a ring in order to marry a woman he is clearly intending to use whatever language it is necessary to get married and so it is as though he meant to acquire the ring from the third party with a matana al menat lhachzir which is effective. However, according to this approach it is critical that he either pay his wife for the ring and return it or he return the value of the ring to the third party. He cites that this was also the opinion of the Rav Moshe Hacohen and Rabbenu Shimshon. The Shulchan Aruch EH 28:19 adopts the opinion of the Rosh. Chelkat Mechokek 28:33 writes that according to the Rosh’s second approach if a person used a borrowed ring and didn’t return it or pay for it afterwards the Kiddushin is invalid retroactively. Furthermore, Bet Shmuel 28:48 clarifies that if the man didn’t tell the lender that he is using it for Kiddushin it would only work according to the first approach, which is acceptable under certain conditions that he delineates there. | |||
</ref> However, to avoid a dispute one should borrow the ring from the third party as a matana al menat lhachzir (a gift given on condition that it is later returned).<ref>The Rashba 1:273 argues that a borrowed ring is ineffective since it doesn’t belong to the man. The Avnei Nezer EH 136 is very concerned for the opinion of the Rashba. See Yabia Omer EH 6:6 regarding using this as a factor in invalidating a Kiddushin. Therefore, to avoid a dispute one should make sure to use a matana al menat lhachzir which is effective as the Shulchan Aruch EH 28:20 writes.</ref> | |||
# If the ring gets lost, it is possible to do the Kiddushin with a coin.<ref> Pitchei Teshuva 27:1 cites the Bet Shmuel who held that initially one shouldn’t use a coin based on the gemara Bava Metsia 46a, but the Avnei Meilum argues that only for chalipin where the kinyan requires something that can have a lasting value is a coin ineffective. | |||
</ref> | |||
== | ===Night Time=== | ||
# Some say it is preferable not to do kiddushin at night. <ref>Beer Heitev EH 26:4 quoting the Reem and Knesset HaGedola. See also Tosfot Ketubot 2a s.v. LeYom.</ref> During the winter this is usually impractical.<ref>[http://www.yutorah.org/lectures/lecture.cfm/824763/Rabbi_Hershel_Schachter/Shiur_#54_-_Kesubos_-_Chazara Rav Schachter Ketubot shiur 54 (min 30-7)] said that it is recommended to get married during the day, but during the winter it is impractical and personally his wedding (officiated by Rav Moshe Feinstein) was during the winter and during the night.</ref> | # Some say it is preferable not to do kiddushin at night. <ref>Beer Heitev EH 26:4 quoting the Reem and Knesset HaGedola. See also Tosfot Ketubot 2a s.v. LeYom.</ref> During the winter this is usually impractical.<ref>[http://www.yutorah.org/lectures/lecture.cfm/824763/Rabbi_Hershel_Schachter/Shiur_#54_-_Kesubos_-_Chazara Rav Schachter Ketubot shiur 54 (min 30-7)] said that it is recommended to get married during the day, but during the winter it is impractical and personally his wedding (officiated by Rav Moshe Feinstein) was during the winter and during the night.</ref> | ||
==Edim for Kiddushin== | ===Edim for Kiddushin=== | ||
# It is proper to specify witnesses for the Kiddushin, however, if a mistake occurred and the witnesses were invalid, the marriage is valid as long as other kosher witnesses were watching.<ref>The Ritva (Macot 6a s.v. Lemechzi) writes that some have the minhag to specify edim for a wedding since according to Rashi the kosher edim need to have intention to join together as a pair at the time that they see the event, however, the Ritva finds this opinion difficult because the gemara Kiddushin 43a implies that one doesn't have to specify edim. Nefesh HaRav (p. 261) quoting Rav Soloveitchik says that it is proper to specify edim but if one didn't the kiddushin is valid if there were other edim there. Nitai Gavriel (Nesuin vol. 1 20:5, p. 140) agrees and adds that it is a wise idea to specify edim so that they pay attention to watch the kiddushin. See Chatom Sofer EH 100 and Achiezer EH 27. See also [http://www.yutorah.org/lectures/lecture.cfm/820596/Rabbi_Aryeh_Lebowitz/From_The_Rabbi's_Desk_-_Wedding_Questions From_The_Rabbi's_Desk_-_Wedding_Questions] by Rabbi Aryeh Lebowitz. </ref> | # It is proper to specify witnesses for the Kiddushin, however, if a mistake occurred and the witnesses were invalid, the marriage is valid as long as other kosher witnesses were watching.<ref>The Ritva (Macot 6a s.v. Lemechzi) writes that some have the minhag to specify edim for a wedding since according to Rashi the kosher edim need to have intention to join together as a pair at the time that they see the event, however, the Ritva finds this opinion difficult because the gemara Kiddushin 43a implies that one doesn't have to specify edim. Nefesh HaRav (p. 261) quoting Rav Soloveitchik says that it is proper to specify edim but if one didn't the kiddushin is valid if there were other edim there. Nitai Gavriel (Nesuin vol. 1 20:5, p. 140) agrees and adds that it is a wise idea to specify edim so that they pay attention to watch the kiddushin. See Chatom Sofer EH 100 and Achiezer EH 27. See also [http://www.yutorah.org/lectures/lecture.cfm/820596/Rabbi_Aryeh_Lebowitz/From_The_Rabbi's_Desk_-_Wedding_Questions From_The_Rabbi's_Desk_-_Wedding_Questions] by Rabbi Aryeh Lebowitz. </ref> | ||
# Some hold that it is critical for the witnesses to see the bride's face at the time of the Kiddushin.<ref>Pitchei Teshuva EH 31:5</ref> However, in some communities as a matter of modesty (tzeniyut) the bride's face isn't uncovered.<ref>Rama EH 31:2, Nitai Gavriel (Nesuin v. 1, 20:10, p. 141)</ref> | # Some hold that it is critical for the witnesses to see the bride's face at the time of the Kiddushin.<ref>Pitchei Teshuva EH 31:5</ref> However, in some communities as a matter of modesty (tzeniyut) the bride's face isn't uncovered.<ref>Rama EH 31:2, Nitai Gavriel (Nesuin v. 1, 20:10, p. 141)</ref> | ||
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#One should make Birkat Erusin over a cup of wine. If there is no wine available, one may use Shechar. If there is neither wine nor Shechar available, one may make Birkat Erusin without them. <ref>Rambam (Hil' Ishut 3:24), Maggid Mishneh (ibid.), Shulchan Aruch 34:2, Darkei Moshe 34:7. This is only true by Birkat <i>Erusin</i>, not [[Sheva Berachot]]</ref> | #One should make Birkat Erusin over a cup of wine. If there is no wine available, one may use Shechar. If there is neither wine nor Shechar available, one may make Birkat Erusin without them. <ref>Rambam (Hil' Ishut 3:24), Maggid Mishneh (ibid.), Shulchan Aruch 34:2, Darkei Moshe 34:7. This is only true by Birkat <i>Erusin</i>, not [[Sheva Berachot]]</ref> | ||
==Nesuin before Kiddushin== | |||
# Is it possible to have a Nesuin before Kiddushin? It is a major dispute in the Achronim.<ref>The Masat Binyamin (responsa 90), student of the Rama, writes that it is obvious that chupa is ineffective before Kiddushin. The Bet Shmuel 64:6 adopts this view. The Mishna L’Melech (Ishut 10:2), however, argues because the Ramban (Kiddushin 10a s.v. veha), Rashba (s.v. iy), Ritva (s.v. iybaya) clearly hold that chupa is effective even if the Kiddushin only takes place afterwards. Rav Yohanatan Eibishitz in Bnei Ahuva (Ishut 10:2) answers for the Masat Binyamin, though he favors the opinion of the Mishna Lemelech. See further Pitchei Teshuva EH 61:1. Of interesting note is the Mordechai (Ketubot no. 132) who explains the text of the sheva brachot “chupa v’Kiddushin” to indicate that the order is of no consequence.</ref> | |||
==Sources== | ==Sources== | ||
<references/> | <references/> | ||
[[Category:Lifecycles]] | [[Category:Lifecycles]] | ||
[[Category:Interactions between Men and Women]] | [[Category:Interactions between Men and Women]] | ||
