(2017/5778)
This Shiur was first presented by Shmuel Tzvi (Sammy) Schwartz's at his Chosson’s Tisch upon his marriage to Julianna Stadtmauer.
The Gemara (Kiddushin 2a) teaches that a man can be Koneh (acquire) a woman with Kesef (money), Shtar (a document), and Bi’ah (sexual relations). What exactly is this Kinyan Kesef (acquisition)? It sounds like the man is purchasing the woman!
There are many indications, though, that this is not the case, that the man is not “buying” the woman. First of all, what would such an “acquisition” mean? Does that mean he owns her physically? That is certainly not true. It is not even clear that the Kinyan would be a license for Bi’ah, because there is a Machloket (dispute among) Rishonim as to whether Bi’ah is permitted on a Torah level both before and after the Kinyan Kesef.
Moreover, many Rishonim explicitly state in various contexts that men do not purchase women. One example is that the Rishonim ask why various kinds of Kinyanim that work to acquire objects, such as Kinyan Hagbahah (acquiring an object by lifting it) and Kinyan Meshichah (acquiring an object by pulling it), don’t work to betroth a woman. The Rishonim who discuss this question explain that when you perform a Kinyan Hagbahah, you take the object that you are purchasing and pick it up, but in the context of Kiddushin, there is no purchased object. The Kinyan is of a different nature, so there is nothing to physically lift and take.
There are a number of indications from various sources that a Kinyan Kesef is not “purchasing” a woman.
The Rambam in the beginning of Hilchot Ishut states that before Matan Torah (the Sinaitic revelation), a man would meet a woman in the marketplace and decide he wanted a relationship. He then would just take her home, and the couple would be regarded as married by Noahide law. However, after the Torah was given, that way became invalid; rather, a Kinyan must first occur. What the Rambam seems to be saying is that the Torah does not want us to enter into physical relationships without first having an expression of seriousness and commitment. Rambam is saying that there were forms of marriage before Matan Torah—men did not just grab women in the marketplace for a night or two—but there was no expression of seriousness or commitment.
This notion of seriousness is significant because Kinyanim in general are expressions of seriousness. When you want to transfer an object, the Gemirat Da’at (expression of seriousness of intent) of both parties does not suffice; a symbol is necessary to demonstrate that this transaction is truly intended and is not mere frivolity. Accordingly, the role of the Kinyan, broadly speaking, is to display seriousness in what occurs. Therefore, in the context of Kiddushin, when the Torah states “Ki Yikach Ish Ishah,” “When a man takes a woman” (Devarim 24:1), it’s saying that before a couple marries and engages in a physical relationship, a display of seriousness and commitment is required. The Gemara (Kiddushin 2a) then searches for another context where Kinyan Kesef is made, Avraham Avinu's purchase of Me'arat HaMachpeilah to bury his beloved deceased wife Sarah Imeinu, and we borrow the Kinyan from this context.
This leads us to a well-known machloket that rages between the Sma and the Taz: In Siman 190 of Choshen Mishpat, a major Machloket emerges that addresses the fundamental nature of Kinyan Kesef. Many transactions may be conducted utilizing Kinyan Kesef. For example, someone who wishes to purchase a house for a purchase price of one million dollars may effect the transaction by giving the seller a quarter with the intent to acquire the title to the property. How does the quarter effect the Kinyan/property transfer? We can understand this impact of the quarter in two ways:
Sma views the quarter as a down payment. The assumption is that the buyer will, of course, pay the remainder of the sale price, but the quarter is the first step towards payment, and it thereby creates the acquisition. This quarter is called Kesef Shivyon (value of what is being purchased) or Kesef Pira'on (a portion of the payment).
Taz argues that Kinyan Kesef cannot be Kesef Shivyon or Kesef Pira’on because Kinyan Kesef can also be utilized for Kiddushin. Taz states that a woman has infinite value and cannot be purchased. Kinyan Kesef therefore must be symbolic.
In addition, there is a discussion between the Avnei Milu’im and Penei Yehoshua as to why a woman cannot be Halachically married to two men simultaneously. Is it a matter of the Kinyan itself or of Ervah (forbidden relations)?
The Avnei Milu’im understands that a woman becomes forbidden to all other men through marriage, and since a marriage cannot be validly contracted through Ervah, she is unable to marry another man.
Penei Yehoshua states that the nature of the Kinyan of marriage is that the woman is Makneh (“sells”) herself by restricting her commitment to one, and only one, man. Thus, she cannot marry a second person. Why is not possible for her to marry a second man? Teshuvot Chavatzelet HaSharon, an early twentieth-century authority, explains that this is characteristic of the process of Kiddushin. There is an expression of seriousness and a formation of a relationship. In the case of a woman, this expression of seriousness is an exclusive commitment, and by definition, a woman makes such a commitment to only one man.
It’s a true Kavod and a privilege to be experiencing this Sugya (topic) this evening. I thank the Ribono Shel Olam for allowing me to reach this great moment today and to have the ability to perform this Kinyan later on with Julianna by expressing my ultimate commitment to her as we begin to build a family and a home together. Mazal Tov.