“Why didn’t you tell me that she is your wife,” Avimelech complained to Abraham after he attempted to have relations with Sarai.
Before the time of the Torah, a couple could get married by simply consummating their relationship in the privacy of their home. The Torah, however, insists that this vital human relationship, as romantic as it is, be given no less legal protection than a commercial transaction.
Like a transaction for the purchase of property or the loan of money, a marriage must be conducted by way of a legal ceremony that ensures that both parties consent to be bound, that they undertake to fulfill certain obligations and they have remedies if these obligations are breached.
Today, the universally accepted way of conducting a Jewish marriage is for the groom, in the presence of two witnesses, to hand the bride an object of value while declaring
הרי את מקודשת לי, Harei at mekudeshet li, You are betrothed to me,” and then to seclude himself with her.
In the days of the Talmud, in order to give the couple time to prepare the marital household, the marriage consisted of two separate ceremonies.
First, the groom, in the presence of two witnesses, handed the bride the object of value and made the marriage declaration. This ceremony was referred to as ארוסין, erusin, betrothal.
One year later the groom would take the bride home and consummate the marriage. This ceremony was known as נשואין, nisuin, marriage.
During the year between erusin and nisuin, the bride continued to live in her father’s house and the couple was forbidden to live together. Yet they were considered married and the marriage could only be dissolved by divorce.
Today, erusin and nisuin are conducted at the same time under the חופה, chuppah, the wedding canopy, and the merged ceremony is now referred to as קדושין, kiddushin. The first of the seven blessings recited under the chuppah marks the erusin part of the merged ceremony and the six following blessings mark the nisuin part of the merged ceremony.
Based on the language of the Torah, “כי יקח איש אשה, Ki yikach ish, ishah, When a man marries a woman,” it is the man who must be the active party in the marriage ceremony, not the woman. Therefore, if the bride hands the object of value to the man and declares, “You are married to me,” or even “I am married to you,” the kiddushin is ineffective. Similarly, if she gives him the money and he says to her “You are married to me,” the marriage is ineffective.
If, however, the groom hands the bride the object of value and the bride says, “I am betrothed to you,” the situation is unclear. According to Rashi,and the Rambam, the efficacy of the marriage is uncertain because the requirement of ki yikach, that the groom must be the active party in the ceremony, might not have been met, in view of the fact that the bride made the marriage declaration. On the other hand, the ki yikach requirement may have been met because it was the groom who gave the object of value.
Accordingly, the couple that married in this way have gotten themselves into a tangled situation. They may not live together because the marriage may not be effective. They are not free to marry somebody else without a divorce, because perhaps the marriage was effective.
The Tur and the Shulchan Aruch, however, see the problem differently. According to them, the question in this situation is not whether the ki yikach requirement has been met. As long as the man has given the object of value, they believe that the ki yikach requirement has been met. The question, however, is whether the man intended to marry the woman. Perhaps he gave her the object of value as a gift or a deposit but not for the purpose of marriage and did not pay attention to her marriage declaration. If that were the case then there was no meeting of the minds and no marriage.
The difference between the approaches of Rashi and the Rambam, on the one hand, and the Tur and the Shulchan Aruch, on the other hand, is in the case where it was clear from the circumstances of the situation that the man did have marriage in mind. For example, if in the situation described, the groom responded with “yes,” to the bride’s marriage declaration, or even if he said nothing, but was standing under the chuppah when the bride made the declaration, according to the Shulchan Aruch and the Tur, the marriage is effective. According to Rashi and the Rambam however, the efficacy is still uncertain.
Certainly all would agree that if the husband gave the object of value and said
“הרי את מקודשת לי, Harei at mekudeshet li, You are betrothed to me,” and the bride responded with, “הרי אני מקודשת לך, Harei ani mekudeshet lecha, I am betrothed to you,” the marriage is effective since this is an expression of consent.
Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X or by e-mailing Raphael at [email protected].
