Kiddushin, Chapter 2, 5783, Lecture 3

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[Rabbi Michael Abraham] But there is the principle of the law of the kingdom being law, so that’s a halakhic principle that recognizes what the civil law says. Fine, we’ll see—that’s not correct, neither legally nor halakhically. But I’ll get to that at the end; that’s just an anecdote. So in short, I’m not going to make slippery-slope arguments here. Now what is the debate? I’ll put the players on the board right away. When she understands the phrase “a woman is acquired in three ways,” right? That’s how our tractate opens, the first Mishnah in Kiddushin. What does “a woman is acquired” mean? Seemingly, the husband acquires the woman. He makes her his property, affiliated with him after this act of acquisition. That was her claim. And I say that this is a mistake in understanding the concept of acquisition in Jewish law. Simply a mistake in terminology. She doesn’t understand the concept; she doesn’t understand it correctly. And by the way, a lot of people are like that. The concept of acquisition in Jewish law is not at all just buying something so that it becomes your property. That’s only one example of an act of acquisition. There are many acts of acquisition. When I say “and we made an acquisition from him,” right? When I say “we formalized this with one another,” what does “and we made an acquisition from him” in the ketubah mean? In the ketubah, did someone buy someone? So what does “and we made an acquisition from him” mean? We performed an act of acquisition in order to give legal force to the ketubah contract. That is called “and we made an acquisition from him.” In other words, to perform an act of acquisition means to apply a halakhic effect. According to Jewish law, a halakhic effect is applied through an act. Usually—except for things that are acquired by verbal declaration—you need an act in order to apply a halakhic effect. But that effect does not have to be an effect of ownership. Ownership is one of the halakhic effects. And there are other effects that are also applied—I don’t know, setting aside terumah, I apply the status of terumah to something, so I do some action that applies that status. You could call that action an act of acquisition, an acquisition act. Usually people don’t say that because terumah doesn’t belong to the area of civil monetary law, but every act that belongs to that area is called an act of acquisition. But that does not mean that the result of that act is that someone bought someone or something. It’s an action for applying a halakhic effect; that is called an act of acquisition. Now, perhaps the most common halakhic effect—or at least one of the common ones—is ownership: I own something, okay? And therefore somehow in ordinary language it became standard that when I say I bought something, it means I performed an act that made it belong to me, made it my property. But that’s a borrowed usage. Essentially, when I say I performed an act of acquisition, it means I applied a halakhic, legal effect. That’s all; that’s the meaning. Therefore, when I say “a woman is acquired,” it means the kiddushin contract between her and me has been concluded. That is what “a woman is acquired” means. This is what is called an obligatory obligation, not a proprietary one. Meaning, we created—we signed—the contract, and that contract receives force after we perform an act, okay? The meaning of that contract is to apply the status of kiddushin. Now there is a kiddushin contract between me and the woman. Beyond that there is also the ketubah contract, which has to accompany the kiddushin contract, but never mind, for the moment let’s talk only about kiddushin for purposes of the discussion. What?

[Speaker F] It sounds like she acquires herself.

[Rabbi Michael Abraham] No, “acquires herself” is when she is divorced. It sounds as if she—

[Speaker F] Acquires herself again when she leaves…

[Rabbi Michael Abraham] So I said, the concept of acquisition is what confuses things here. But just as “a woman is acquired” does not mean acquired in the sense of becoming my property, so too “acquires herself” does not mean leaving the status of being property and becoming her own property.

[Speaker F] But she still is the subject of the action. Meaning, according to your explanation, you could also say that the man is acquired, because the status of kiddushin takes effect on him too.

[Rabbi Michael Abraham] Right, absolutely, you could say that.

[Speaker F] It’s not by accident that it doesn’t say that.

[Rabbi Michael Abraham] Who says it’s not by accident? First of all. And second, the way… Why doesn’t the Talmud ask that? No, the Talmud does ask why it doesn’t say “the man is acquired.”

[Speaker F] No, it asks, but why…

[Rabbi Michael Abraham] Okay, we’ll get to that Talmudic question, we’ll get there—both the question and the answer. Clearly, the act of acquisition—and I mentioned this earlier—the act of acquisition is done by the husband. He gives the perutah, the ring. No, not only.

[Speaker F] He acts upon her, he changes her status. First she becomes acquired, and afterward he becomes…

[Rabbi Michael Abraham] Fine, but also when the status of the grain changes and it becomes terumah, so what does that mean? Does that mean that because of that it belongs to me in some sense, or belongs—

[Speaker F] But it means that it’s the object on which I apply the status. Right. So what? Even though theoretically you could describe it as the change taking effect on—

[Rabbi Michael Abraham] You could formulate—

[Speaker F] It in a way—

[Rabbi Michael Abraham] You could describe it that way, but that would be inaccurate, so why describe it inaccurately? Ah, okay. But I’m saying: that still isn’t ownership. She does not become his property—that’s the claim. The fact that she is the object on which I apply the status, fine, so what?

[Speaker F] And why isn’t the husband the object?

[Rabbi Michael Abraham] I don’t know. Great question. What does that have to do with anything?

[Speaker F] Fine, fine.

[Rabbi Michael Abraham] No, we talked about this earlier. I never claimed that Jewish law is symmetrical between husband and wife. I explained at length why it is not correct to say that Jewish law is symmetrical; there is no equality in Jewish law. But that inequality does not stem from the fact that there is some ownership act here, meaning that the woman becomes his property—that is not true. There is inequality from all sorts of other aspects.

[Speaker F] But with terumah too there comes in the issue of “his acquired property.” What? With terumah too there comes in the issue of “his acquired property.”

[Rabbi Michael Abraham] With respect to terumah—not that terumah is “his acquired property.” The woman is “his acquired property,” and therefore she may eat terumah. We’ll get to that, we’ll get to that in a moment.

[Speaker F] But there are several expressions in the Sages that do seem to imply that she is transferred into the husband’s domain.

[Rabbi Michael Abraham] We’ll get there, we’ll get there, we’ll get there—to several such places. In any case, the basic claim is that contrary to the accepted view—that when it says “a woman is acquired,” the meaning is that the woman becomes the husband’s property—I claim that “a woman is acquired” means that an action was done to her that applied to her the status of kiddushin. Okay? That is an act of acquisition in Jewish law, like “and we made an acquisition from him,” or in any other context. It means an action that applies the status. Sometimes that status is ownership—or not just sometimes, often the status is ownership—and therefore in ordinary language when I say “I bought something,” the meaning is I became its owner, it became my property. But that is not the full meaning of the concept of buying. An act of acquisition is an act that applies a status, gives expression to final intention, let’s call it that.

[Speaker D] If I vow not to derive benefit from my own object, does that mean I performed an act of acquisition on it? No, why? That’s an object-based status. What? I didn’t do on it—

[Rabbi Michael Abraham] So with vows there is a status—people usually think it’s a rule concerning the object; with oaths it’s a rule concerning the person. Yes, so there is some sort of status there. If you’re forbidden to derive benefit from another person, the question is whether you applied a status to all his objects from which you could derive benefit, or whether this is really some sort of oath rather than a vow—in essence it is a prohibition on you. Fine, that doesn’t matter. But still, we are not talking here about acquisition. Okay, so that is basically the dispute. Now let’s try to go a bit more deeply into the considerations and the sources. Maybe I’ll just say one more sentence in this context. I think the reason an act is required—of course, on the simple explanation, what is required—why is an act required? The act is required in order to express final intention. Because if you only think about something and haven’t brought it into practical expression, maybe that thought wasn’t yet a final decision. In order to express that you have made up your mind, they require you to perform an act of acquisition, except for those things that are acquired by verbal declaration, where you don’t need to perform an act of acquisition. But it could be that there is something more here. This is a long discussion among the later authorities, whether the act is merely an indication of final intention, or whether it also has a standing of its own—that is, the act of acquisition. What is the meaning of this? It seems to me that here we need to understand what the concept of a halakhic status is. Usually we think of the concept of a halakhic status as a metaphorical expression—I am really creating a new legal state—but it seems to me that at least in certain places in Jewish law one can see that when people speak about the concept of a status, they mean that there is some kind of spiritual entity here. I’ll give you one example. Rabbi Shimon speaks in his booklet on conditions, where he discusses the laws of stipulations at the end of tractate Gittin, his novellae to the end of Gittin, and there he says: when I make a stipulation—say it has to be fulfilled sometime during the next thirty days. For example: “You are divorced on condition that you do not drink wine for thirty days,” okay? Suppose. What is her status during those thirty days? What is she in those days? Never mind, there’s a Mishnah like that. In any case, Rabbi Shimon claims that during those days she is both divorced and a married woman at once. Until the thirty days pass, or until she has or has not drunk, and then according to that there is a collapse like in quantum theory. Yes, exactly, it’s in superposition, and there is some kind of collapse either in the direction of married woman or in the direction of divorced woman. Okay? That’s how I described it. I once discussed this in the yeshiva in Yeruham when I was teaching them this passage, and I said that and meant to continue the lecture, and someone stopped me and said, wait a second—what do you mean she is both divorced and a married woman at the same time? If she’s divorced she’s not a married woman; if she’s a married woman she’s not divorced. What is this—how—what does that mean? How can you say a logical contradiction and then just move on? Like, “a round triangle, and now let’s continue.” What is a round triangle? If it’s a triangle, it’s not round; if it’s round, it’s not a triangle. How can you say two such things together? He stopped me like that, and it was really enlightening. He stopped me because I was so immersed—you’re inside the conceptual world of Talmudic analysis, you get used to lots of things—sometimes someone, precisely someone not so steeped in that world, stops you, and then you really see that you need to define the concepts or the principles for yourself more clearly. But the truth is that very quickly I understood that this is not a logical contradiction. What do I mean? Suppose I say—once I was talking with some friend, we had all kinds of philosophical discussions, and I asked him if he knew of anything that has no opposite. I couldn’t find anything that has no opposite. He said, what do you mean? There are plenty of things that have no opposite. A dove has no opposite. A lectern has no opposite. I don’t know—lots of things have no opposite. So suddenly I caught myself—wait, so why couldn’t I find anything without an opposite, and he immediately gives me a hundred such things? Then I understood that opposition is a relation between properties, not between objects. An object is never the opposite of another object. A property is opposite to another property. For example, being salty is the opposite of being sweet. But salt is not the opposite of sugar. Right? Salt is not the opposite of sugar; they have opposite properties. The property of being salty and the property of being sweet are opposites. Therefore, if I say that a certain dish is both completely salty and completely sweet, that’s impossible. If it’s salty, it’s not sweet; if it’s sweet, it’s not salty. But if I say that the dish contains both salt and sugar, there’s no problem with that at all, right? Is that a logical contradiction? No. Now I say: if I say that the woman is both divorced and a married woman, that’s a logical contradiction. But if I say that there are upon her both the status of divorced woman and the status of married woman, that’s like saying there is in it both salt and sugar. Because a status is a kind of entity. It’s not a property. There are the halakhic properties, the halakhic norms—what is permitted to her and forbidden to her as a married woman, as a divorced woman, and so on. Those are the parallel to sweet and salty, okay? But there are the entities, like salt and sugar, and I claim that the status of divorced woman, the status of married woman, or statuses in Jewish law, are a kind of entities. Metaphysical entities, meta-legal entities. I’m not committing myself to whether they really exist, but the halakhic perspective on them is as if there were entities here. Okay? And what does that actually mean? It means there is no problem saying there are upon the woman two statuses: the status of divorced woman and the status of married woman. One of them will fall away at some point and the other will remain. Okay? Now what does that actually mean? Obviously, from a halakhic point of view, when both statuses rest upon her, then halakhically we will have to decide either that she has the status of divorced woman or the status of married woman, because in terms of practical law there are no contradictions. Either she is permitted to marry a kohen or she is forbidden to a kohen. Either she is permitted to another man—not her husband—or she is forbidden to another man. In other words, here you cannot say she is both permitted and forbidden. That is with respect to the legal consequences, because that’s the sweet and salty; they can’t go together. But that is fine; it will always work out. Suppose in this status, where she is both divorced and a married woman, I ask: is she allowed to marry someone else? The answer is no. Why not? Because of the married-woman status in her. From the side of the divorced status, yes—but she is both a married woman and divorced, so from the side of the married-woman status it is definitely forbidden to her, not forbidden out of doubt. Definitely forbidden, because she is both a married woman and divorced. She is not in doubt whether she is a married woman or divorced. If, say, this were rabbinic-level, then if it were a mere doubt one could be lenient, but here it is not a doubt; it is both and. So if there is a rabbinic married-woman status and a rabbinic divorced status, she is still forbidden to marry.

[Speaker F] And earlier you gave the analogy of superposition, so there apparently we’re talking about properties, I—

[Rabbi Michael Abraham] I claim that there too it’s not a property. Okay. That’s my solution to superposition in quantum theory as well. I even wrote an article about it once.

[Speaker F] Yes, but well, at least that’s not the accepted approach.

[Rabbi Michael Abraham] The accepted approach contains contradictions, and that is exactly the claim.

[Speaker F] So what really is the problem? I claim that from the standpoint of physics—or here—what is the problem with saying that there really are properties that both apply at once at a certain time?

[Rabbi Michael Abraham] No—didn’t you say that the meaning would be that she is both permitted and forbidden?

[Speaker F] No, those are already laws. In the laws I agree. A law has to tell us what to do; there has to be a statement.

[Rabbi Michael Abraham] Okay, so what—

[Speaker F] But I can say that there is here the thing that obligates me to relate to her—

[Rabbi Michael Abraham] That is what I call a status. That’s why I said I’m not committing myself on the question whether the status is a Platonic entity. Whatever you want to call it, call it what you like. But it is something beyond the law. Meaning, something that generates the law. Okay, so the claim is that if, say, I discuss whether she is permitted to someone else, to marry another man—

[Speaker B] There’s a similar discussion about someone who is half-slave and half-free.

[Rabbi Michael Abraham] Similar, right. The solution is to prevent that as much as possible. That’s not a solution.

[Rabbi Michael Abraham] The recommendation is to prevent it as much as possible, but if such a situation exists, it is well-defined. It is not a contradiction. It is a problematic state, so one should try to prevent it. But there is no contradiction in the state itself as such. On the contrary, that is an excellent example of what I’m talking about here. Meaning, from one side—it is not a state of doubt. He is both slave and free man. You know, it’s like the Rogatchover—this is a bit of a leap, but still—like the Rogatchover distinguishes. There is a dispute regarding twilight, and he claims it is actually a three-way dispute, and that really is the plain sense of the Talmud, though many don’t notice it. Some say it is both day and night, and some say it is neither day nor night. Okay? What difference does that make? It seems like a status of doubt. If you say it is neither day nor night, then let’s say there is a law that requires night—can it be done at twilight? If it is both day and night, the answer is yes. If it is neither day nor night, the answer is no. Right? If there is a law that requires day—or sorry, that is forbidden by day, not one that requires night. Same thing, just from the other side. Not that this law must be done at night because it requires night, but because day is forbidden. Now here it flips, right? If twilight is both day and night, then it is forbidden at twilight because day is forbidden. But if twilight is neither day nor night, then do it at twilight—no problem, because it isn’t day. True, it also isn’t night, but we don’t need night; we only need it not to be day. Okay, so here too it’s the same. It isn’t really a state of doubt, but of both and. Then what happens is that there is always an affirmative law and a law of absence. For example: is she permitted to marry someone else? The answer is no, she is forbidden. Why? Because from the side of her being a married woman it is forbidden; from the side of her being divorced it is permitted. What does permitted mean? That there is no prohibition. It’s not an obligation; it’s merely the absence of prohibition. Okay? Once there is a positive law on one side and an absence of law on the other side, the positive law always overrides the absence. Always. Now, for every practical consequence I can think of—I don’t know, maybe one can find something pathological—but for every practical consequence I can think of, it is always like that. One status generates an affirmative law, and the other status only says there is no law here. Okay? Therefore there will never be a practical problem in such a double status. A double status of this kind will always generate one affirmative law, while the second status will only say there is no law. Automatically, I will always follow the affirmative law. Therefore this is not a situation of doubt; it is definitely both and. Okay? But for our purposes, I’m closing that parenthesis. For our purposes, what does this mean? It means that a status is in essence some kind of reality. It is not merely a manner of speaking to say that the law is that the woman is a married woman. When I say that the woman is a married woman and when I say that the status of married woman rests upon her, that is not the same thing. Because the status of married woman is the reason the laws of a married woman apply to her. It’s not an identity. Just as with ownership, for example, the fact that I am forbidden to use your object is a result of the fact that it is yours; it is not the definition of its being yours. It is a result. The fact that this thing belongs to me means that I may use it and others may not use it without my permission. But that is a result; it is not the definition. Therefore, for example, there can be a case—and in that same article I wrote about this too—there can be a case where an object belongs to me and I have no rights to use it, and still it belongs to me. There are no rights—of course in a case where benefit is prohibited, that is certainly so, though there one could say that I have legal rights but am forbidden to exercise them; a lion crouches upon it, so to speak. But there are cases where I have no legal rights. For example, a slave awaiting a deed of emancipation—you can show from the Talmud in Gittin 42 that in the case of a slave awaiting a deed of emancipation he does not belong—yes, this is a Canaanite slave whom I have released, meaning I declared ownerless, but have not given him a deed of emancipation. So in his status he is still a slave, but in terms of my proprietary rights in him I have freed him. Meaning, he no longer belongs to me in any way. Okay? Yet one can show that he is in fact still considered mine. Therefore the later authorities call this state “prohibitory acquisition,” as distinct from “monetary acquisition.” “Prohibitory acquisition” is not just words. He belongs to me in the prohibitory aspects. What does that mean according to the interpretation I’m giving here? The metaphysical bond between me and him exists. The consequences of that bond do not exist. Meaning, he is mine. But the rights that this would grant me by virtue of his being mine—those do not exist here. Since I do not identify the two things, but see one as the result of the other, there is no problem with such a state. Okay? Therefore, for example, the Rogatchover writes in Bava Kamma 14—there are collections of the Rogatchover on the tractates—he writes there: why is a person liable for damage caused by his property? We have the investigation of the later authorities: is it because he didn’t guard it properly, he was negligent in guarding it, or because of the very fact that it belongs to him? Let’s discuss the second side. The very fact that it belongs to me—so what? Why should that mean I have to pay? It belongs to me, okay—so what? Suppose I’m not at fault, I wasn’t negligent in guarding it, or that is not the basis of the claim. The very fact that it belongs to me means there is a bond between me and it. It is like an extended self. Why am I liable to pay for damage that I cause with my body—not with my property, but with my body? I caused damage, even under compulsion, yes? A person asleep—even under compulsion. Meaning, his conscious self did not cause this damage, because he is asleep, he has no responsibility. But a person who causes damage is liable even under compulsion; a person is always forewarned, okay? So why am I liable for my body? Because my body is me. If I caused damage, I have to pay. My property, too, is me. Not because of responsibility, not because I was negligent in guarding it, but because it is me. The Rogatchover brings there as an example the Sabbath rest of one’s animal. He says that when I have an animal, I am supposed to ensure that it does not desecrate the Sabbath. A Torah-level law, okay? Not that I myself should not desecrate the Sabbath through it, yes? I am not talking about leading an animal with a load or certainly not plowing by means of an animal, which are labors that I perform and for which I am liable to stoning or a sin-offering. Okay? I am talking about a case where the animal goes somewhere and eats grass, so it is violating reaping. That would be forbidden for me. Were it not for the fact that this is what it needs in order to live, so then it is permitted, the Talmud says. But labors that it performs—transferring from one domain to another—that is forbidden for me. I have to ensure that my animal does not transfer from one domain to another. Not for me—just that it should not do so on its own. And if the property caused damage—

[Speaker D] If it was under compulsion, am I not liable for my property?

[Rabbi Michael Abraham] So that—I could give a whole lecture on that; I also wrote articles about it. But it’s not worth going into now; it requires a lot of discussion. So the claim, in the end, what I want to say, is that the bond between me and my property is first and foremost a meta-legal bond, a metaphysical one if you like. It has consequences in the sense of rights of use. I have rights of use; others do not have rights of use. But those are consequences. They are not the definition of the bond between me and it. The bond between me and it is a state, and the proof is that this state, for example, has prohibitory consequences, like the Sabbath rest of one’s animal, which has nothing to do with rights I have in the thing. Okay? Same with responsibility for damages caused by the animal, and so on. What does that mean for our purposes? It means that when I apply a halakhic status, I am in some sense changing a real state in the world. Okay? And since that is so, it could be that an act of acquisition is required in order to do that. It is not enough that you want to. So you want to—so what? In order for something to change, there must be a cause. Yes? There is the principle of causality. I need something that brings about the change. The act is the thing that brings about the change. Of course, it has to be accompanied by final intention; otherwise it is not a meaningful act. But it is not necessarily the case that the act is only meant to verify final intention, and that’s all—or to create final intention, and that’s all; there too there are two formulations. Rather, the act has a standing of its own. It is the cause that brings about the change in reality. Now what I want to say for our purposes—and all this is just a parenthetical remark—is that this also explains why an act of acquisition is required in kiddushin. The act of acquisition in kiddushin is required not in order to buy the woman necessarily, but in order to create the different state of reality of the marital unit, of kiddushin, the kiddushin relationship between us. The contract, if you like—but it is more than a contract. This contract is an expression of a state. There is some bond between me and her, not a bond of ownership, not that she belongs to me. But this bond has halakhic consequences. In order to create this bond, an act is required, just as with various halakhic bonds or halakhic states that require an act in order to apply them. That, essentially, is the claim.

[Speaker D] And it’s not just final intention?

[Rabbi Michael Abraham] What? It’s not just to create or express final intention; it also has some causal standing. It causes something, and that is why the act is needed. I’m only saying this to sharpen the point—it doesn’t have to be so; I could have explained it even without this. But I think this view of statuses is also correct, and it reinforces the claim. Now I want to get more directly into the discussion—how, whether this is so and why. Are kiddushin the application of ownership or not? First of all, Maimonides, whom we discussed in the previous lecture, says that before the giving of the Torah, a man would encounter a woman in the marketplace and bring her into his home, and after the Torah was given one must precede this with kiddushin: “He should first acquire her before witnesses, and then she will be his wife.” So in that description, if one sees acquisition as ownership, Maimonides becomes even more absurd. Again, it could be, but it becomes much more difficult. Why? Because then it turns out that before the Torah was given, the world was enlightened. Meaning, the husband was not—the woman was not the property of her husband, did not belong to her husband, and then the Torah came and required that the husband buy her like an ox or a donkey and so forth. Right? If I understand kiddushin as acquisition, as the application of ownership, then it comes out terribly strange. Meaning, the Torah not only is not moral, the Torah is not equalitarian, but what it comes to add here is the dimension of inequality. It wants to make sure that the equality that existed before the Torah is not preserved. There are some today who really think that way, yes—that equality is some sort of social evil, and where there is inequality, that needs no explanation. On the contrary, whoever wants equality is immoral or I don’t know exactly what. So in my eyes that is an absurd conception, but fine. You can say yes, indeed, someone who sees it that way will say: correct, that is what Maimonides means, that the Torah wanted to introduce the idea that equality is unnecessary. Fine. But now I want to enter the actual discussion itself. So I’ll begin—what? Yes, if there is no objection, then… Fine. The best-known expression is Nachmanides in Gittin 9, and also Ritva and Ran there, the Ran on the Rif there, and quite a few medieval and later authorities bring this in the name of Nachmanides, that he writes there that a woman is not her husband’s property. That’s what Nachmanides writes there. You have to remember that when people say this today, for example, it raises less astonishment. Because usually when people say it today, they are coming on the defensive; they are trying to explain why the Torah is not benighted, yes, why the Torah nevertheless does not endorse twisted values. But I’m talking about Nachmanides, yes, in the twelfth century. In the twelfth century he was not expected to defend himself against anyone. There is some straightforward conception here—quite the reverse. There are commentators who bring the claim that a woman is not her husband’s property as a difficulty on the Talmud. They ask on the Talmud: “Wait, how can the Talmud say that? A woman is not her husband’s property.” It was so obvious to them that a woman is not the husband’s property that even in a passage in the Talmud that might imply otherwise, they say, “That can’t be.” They have a question. So it was that basic, that self-evident to them as well. Now where does this emerge from? Let’s see. The Talmud at the beginning of Kiddushin—the point mentioned earlier—the Talmud learns that a woman is acquired by money through the comparison of “taking” from Ephron’s field. A famous Talmud. “Taking, taking” from Ephron’s field: “When a man takes a woman,” and “I have given the money for the field; take it from me.” So by verbal analogy of “taking, taking,” they learn that a woman is acquired by money. There is also money, document, and intercourse—those are the three methods of kiddushin. So from “taking, taking” from Ephron’s field they learn that she is acquired by money. Seemingly, it is very natural to say that a woman is acquired by money just as a field is acquired by money. There is some essential analogy here. Okay? That one is basically buying the woman; she is the husband’s property. Except that if that were so, then I would expect—after all, the Talmud continues and asks, and from where do we learn document and intercourse? Money we learn from “taking, taking” from Ephron’s field. Where do we learn document and intercourse from? So they bring various sources for that, “just as becoming is compared to going out,” and other sources. But the rule is that a verbal analogy is not applied only halfway. There is a verbal analogy between woman and field. A field has three methods of acquisition: money, document, and possession. Right? What is the parallel of possession in the case of a woman? Obviously intercourse. Possession means making use of the field, conducting oneself with it as an owner. If I had to define the acquisition of possession in the case of a woman, I would define it as intercourse. Okay? That is, as it were, the use the husband makes of the woman, right? So one would naturally say that if there is a verbal analogy between field and woman, then we have found the source for all three methods of kiddushin: money from money, document from document, intercourse from possession. What is the problem? Why is there a need to search for separate sources? After we found this verbal analogy regarding money in kiddushin, why do I need other sources for intercourse and for document? Because in truth there is no essential similarity between acquiring a woman and acquiring a field. In fact, the Ritva there—and that is the plain sense of the Talmud—says this isn’t really a verbal analogy at all. It’s a verbal analogy, but one could still say that a verbal analogy is not applied halfway; rather, this is merely a revelation of meaning. And “revelation of meaning” means that it merely explains that the meaning of the word “taking” is taking by money. Only the meaning of the word. It does not mean that acquiring a woman is like acquiring a field. We learn from the field that when it says “taking,” the intention is money. By the way, it doesn’t say acquisition; it says “taking,” yes? So “taking” means by money. There is no taking except by money. Therefore it is clear that we learn this only regarding money. That means that the similarity between acquiring a woman and acquiring a field is not essential—not even with respect to money, of course, and in nothing else. It is not the same at all; on the contrary. This Talmudic passage is excellent evidence against the ownership approach—people call it the acquisitional approach, but now I have to be careful using that term. Yes, the ownership approach. Because on the contrary, from the Talmud itself you can see that it is not so. By the way, I’ll say more than that. Among the medieval authorities there is Tosafot, I think in Kiddushin, that notes a point—the medieval authorities somehow crudely ignore this issue. I would have expected everyone to cry out: the Talmud is looking for the source of document and intercourse—what do you mean? There is a verbal analogy between woman and field. So what’s the problem? Money, document, and intercourse; money, document, and possession. That’s it. No. Not only does the Talmud not do this, but the medieval authorities don’t cry out about it either. Tosafot notes it regarding one of them, regarding document I think—Tosafot comments why not learn that too. But even Tosafot doesn’t note it regarding intercourse. Meaning, somehow—even according to Tosafot it is clear that he understands—he says it because in his view this is a verbal analogy and not merely a revelation of meaning. But it is clear that there is no essential similarity here. If there were an essential similarity here, then intercourse too could be learned from possession, and everything would be the same.

[Speaker F] Sorry for the heretical question, but it seems to me that the whole discussion is extremely verbal. After all, everyone agrees about what happens, what laws apply when a man betroths a woman. So. The question is whether we put—

[Rabbi Michael Abraham] No—again, I talked about this. I talked about this earlier. I said no. I said there is asymmetry in the laws, unequivocally; you cannot say otherwise. The question is whether the foundation of that asymmetry is the conception that the woman is the husband’s property. If she is protesting against the asymmetry, I’m with her. That is not the dispute with that lady against whom I am writing here. Rather, I am speaking here only about the theoretical question. The question is whether there is acquisition here in the sense of acquiring ownership or not. That there is asymmetry—unequivocally true.

[Speaker F] Let’s leave aside the question of what we call what happens, its name. We know what the law is. We know that there is—

[Rabbi Michael Abraham] And the laws are not laws of ownership.

[Speaker F] No, but some of the laws could be called ownership. Why not?

[Rabbi Michael Abraham] Call it whatever you like; the woman also owns her husband in some of the laws. So what? He is obligated to provide her with sustenance, clothing, and conjugal rights.

[Speaker F] Right, and therefore if someone started arguing with me about this question, it would seem funny to me. Fine, it’s not some abyssal question.

[Rabbi Michael Abraham] I’m not entering this debate in order to deal with feminism. Wait, I’ll explain, I’ll explain. I’m not entering this discussion in order to deal with feminists. I’m using this in order to define the concept of kiddushin acquisition, that’s all. I have a theoretical interest in this lecture. It doesn’t interest me polemically.

[Speaker F] The question is a purely factual one, unrelated to feminism or postmodernism, okay? What halakhic consequence is there if we call it his monetary ownership of her?

[Rabbi Michael Abraham] What? There are lots of halakhic consequences. What do you mean? For example, whether the obligations contained in this thing are proprietary obligations, whether one can stipulate around them or cannot stipulate around them. I’ll get to that later. Who writes the document? In a deed of acquisition, the obligated party writes the document. In the document of kiddushin, the husband writes it. Why? If the woman were the seller, then the seller should write the document.

[Speaker F] Couldn’t it be that this is some specific case where, say—

[Rabbi Michael Abraham] No, no. The document is written with the consent of the obligated party. No, that’s the law: the document is written with the consent of the obligated party. The obligated party writes the document, otherwise it isn’t a valid document. The consent of the obligated party is a basic condition in the laws of legal documents.

[Speaker B] Is the obligated party the seller or the buyer?

[Rabbi Michael Abraham] The seller.

[Speaker F] Okay, so I can summarize that even if we call it ownership, it is not ownership of the sort of monetary ownership.

[Rabbi Michael Abraham] Fine, then call it what you like, but it is not the application of ownership; it is the application of a status. That status definitely has asymmetrical consequences.

[Speaker F] The claim is that this is not a subsection of the laws of buying and selling. I think everyone would accept that easily.

[Rabbi Michael Abraham] Well, actually not. Many don’t accept that.

[Speaker F] What? They think it’s a subsection of the laws of—

[Rabbi Michael Abraham] Yes, yes. She also says—one of the proofs she brings is that it appears in Kiddushin in the context of the laws of buying and selling. The entire first chapter of Kiddushin is civil monetary law, after all. Not all of it, but much of it. So she says: it’s obvious, it’s simply laws of acquisition. Fine, but again, I’m not coming to spar with her; I’m using this in order to define kiddushin acquisition here. It’s not that I have some polemical interest here. The next point: payment—just that—in payment, when I pay in an acquisition by money. Now, true, there is the Taz and the Sema, I think, in… when one buys a field in Hoshen Mishpat 190, at the beginning of 190, the section where we buy a field with money, because movable goods, according to Jewish law, are not acquired by money—only on the Torah level; rabbinically you need physical pulling. But a field is acquired by money. Now the money with which I buy the field—there is a dispute between the Taz and the Sema whether that is acquisition money or value money. Meaning, whether transferring the money is a formal act of acquisition, or whether giving the compensation itself contains the acquisition. Now with a woman it is obvious—and the Kehillot Yaakov brings this in the name of his brother-in-law there, Rabbi Chaim Ozer. He has section 16, I think, on returnable money. So he says—he heard this in the name of Rabbi Chaim Ozer—that in the case of a woman there is no requirement of returnable money. Clearly this is not compensation money. It is acquisition money according to all views. Acquisition not in the sense of applying ownership—again I say—but in the sense that it is not compensation. You are not getting merchandise for which you pay compensation. And that has consequences. If returnable money is required—“the stalk of one of my figs shall acquire for you”—that is not returnable money, but perhaps with betrothing a woman it would work, if returnable money is not required in the case of a woman. There are various consequences. So the claim is that there is no compensatory payment here; therefore it is also quite clear that what I receive is not some kind of property. Okay. The same goes regarding what exactly I acquire in the woman. What—what acquisition do I have in her? She can say, “I do not wish to be supported and I will not work,” or things like that, though that really belongs more to the ketubah relationship. But in the end, in the acquisition between us, I obligate myself to her more than she obligates herself to me. I owe her sustenance, clothing, and conjugal rights. The woman perhaps owes me conjugal rights too as a way of facilitating procreation, helping me fulfill procreation. But basically, if you ask yourself who is obligating himself to whom, the husband obligates himself no less—and perhaps more—to the woman than she does to him. Therefore I think the straightforward understanding is that this is a contract and not a proprietary act of acquisition, yes, one that contains ownership.

[Speaker D] The fact that you betroth—

[Speaker F] Her with something worth a perutah doesn’t give her—

[Rabbi Michael Abraham] What I said: you are not giving the compensation for the merchandise, so to speak, that you are receiving; you are betrothing with something worth a perutah.

[Speaker F] The obligations are apparently not part of the acquisition; those are things the rabbis or the court instituted.

[Rabbi Michael Abraham] No—sustenance, clothing, and conjugal rights are not. That’s why I said only sustenance, clothing, and conjugal rights. Those are Torah-level.

[Speaker F] Yes, fine, but that—

[Rabbi Michael Abraham] No, that’s why I said: I separated the ketubah from kiddushin. They are two different things. But sustenance, clothing, and conjugal rights are an obligation of the Torah.

[Speaker F] The question is what exactly sustenance… It still seems to me fairly symmetrical, sustenance, clothing, and conjugal rights, because the woman also obligates herself in what she gives—

[Rabbi Michael Abraham] Wait, wait—but I also said: at least as much as the woman, and maybe more. But even if it’s the same as the woman, what difference does it make to me?

[Speaker F] I think it’s less.

[Rabbi Michael Abraham] What does “less” mean? It’s mutual. Why should I care now how to phrase it? It’s mutual, it’s a contract, not an acquisition. You undertake an obligation; there’s a mutual commitment here of the two sides, each toward the other. More or less is a matter of interests. For a woman, “better to dwell as two than to dwell alone”; the fact that she receives this is worth everything. Fine, I’m not getting into that question here, everyone does… After all, in kiddushin the woman consents. You can’t betroth a woman against her will. You can divorce her, but you can’t betroth a woman against her will. The woman consents. If she didn’t want it, she wouldn’t consent. There’s symmetry here. Therefore I’m saying: on the conceptual level we’re dealing with a contract, not an acquisition, yes, a contract that contains ownership-like elements. Now then, the fact that the husband performs the act of kiddushin—“when a man takes a wife,” not “when a wife is taken by a man”—the husband performs the act of kiddushin. Here I’m coming to what you noted earlier: this really sounds to me like a claim that isn’t even correct on the feminist conceptual plane. Leave the theory aside for a moment, where I’m speaking about the theoretical aspect, whether it’s an acquisition or not an acquisition. What difference does it make? At the end of the day it’s obvious that she also has to agree and I also have to agree. Meaning, it’s mutual in the essential sense. If she doesn’t agree, there won’t be kiddushin. So the question of who, in the ceremony, passes the ring to whom—why is that interesting? The Torah wants me to pass the ring and not for her to pass the ring—so what? What really matters is what is created as a result of passing the ring. Also the relationship… if you want, even what state is created, metaphysically, who belongs to whom. So I’m saying: it isn’t created that she belongs to me. But even the mutual relations between them—judge those on their own merits. Maybe they’re fine, maybe they’re not fine. But what does that have to do with how the ceremony is performed? The way the ceremony is performed—the Torah wants the husband to take. By the way, the commentators also say that this is because it is a man’s way to pursue a woman.

[Speaker F] That’s what the Talmud says. Yes. But that means that in a certain sense they are right. It means the ceremony has significance; it’s not merely a formal matter.

[Rabbi Michael Abraham] No, the opposite. “It is a man’s way to pursue a woman” means there is nothing essential here that the Torah is requiring. It’s simply how the world ordinarily works. So it says, fine, let’s express that formally by having him give the ring. So what? If the woman doesn’t agree, there won’t be kiddushin.

[Speaker F] There’s a reference here to the midrash that basically the man is the one missing a rib, and essentially the woman’s role is to complete him, and that’s what stands behind this, and that’s what upsets them.

[Rabbi Michael Abraham] No, I can understand what upsets them, much more than this. Why should I care about these midrashim? The question is what happens in practice. That is much more upsetting; the asymmetry in practice is much more… I’m not— I have no problem with what upsets them. I started the class by saying that it upsets me just as it upsets her. I’m talking about the theoretical question. Fine, in this case I also noted that I don’t really understand the “why do you care,” even in the sense of if you’re upset, not only on the theoretical question.

[Speaker F] Fine, I—

[Rabbi Michael Abraham] In my eyes symbols don’t say very much, but to each his own. I’m not…

[Speaker F] The interpretation that this action really has that meaning—that the husband is basically seeking to complete himself through the woman and not the other way around.

[Rabbi Michael Abraham] Okay, so what? Fine.

[Speaker F] So that’s what… that’s what they…

[Rabbi Michael Abraham] The husband completes himself through the woman, and therefore what?

[Speaker F] That’s what he… no, they see that as not okay; it should be something mutual.

[Rabbi Michael Abraham] But what does “something mutual” mean? Are they arguing about the psychological question whether a person lacks something, whether a woman lacks something? What? It’s a psychological question. So maybe it’s true, maybe it’s not true—why is that interesting?

[Speaker F] No, he’s searching on the metaphysical plane; there is an act here—the act of kiddushin is basically that one side lacks something and completes itself through the other side.

[Rabbi Michael Abraham] The side that lacks something is the superior side? After all, the woman lacks much more—“better to dwell as two than to dwell alone”; according to the Talmud she wants partnership, yes? Which in my view isn’t all that true, certainly not today. Fine, but I’m saying certainly not today. But the fact that the husband lacks something—does that make him more superior? I don’t understand these frustrations. Fine, a few more…

[Speaker F] And they also said there, what difference does it make that the man gives the ring to the woman? Right. How do you explain it?

[Rabbi Michael Abraham] I have no idea. How do you explain it? Fine, not relevant.

[Speaker F] She said it’s only a midrash… fine, it’s a midrash. It seems that…

[Rabbi Michael Abraham] But if this thing essentially depends on the will of both sides, both of them need to consent. That is the meaningful thing. If both need to consent, that’s equal. Why should I care if the way the ceremony is done is from the husband to the wife and not from the wife to the husband? So what? Put on, do ceremonies however you want, put a flower wreath on the woman afterward, on top of her head too, if you really love these ceremonies. The question is: what does it really mean? What does it really mean? You need the consent of both parties here. They both enter with full awareness and of their own free will. In divorce that really is not the case, and there I understand very well. But in kiddushin, what is the problem? It’s completely symmetrical.

[Speaker B] But also, when I buy something in a store I need the agreement of both sides, but that doesn’t mean there’s equality.

[Rabbi Michael Abraham] I understand. No, of course. No, no, it does mean there’s equality. It doesn’t mean there isn’t an acquisition—that’s what you mean. Equality, certainly there is: if both sides want the transaction, then fine, they make the transaction with the agreement of both sides. It only means— it doesn’t mean there isn’t an acquisition. In the store both sides agree, but at the end of the day I bought the object. It’s just that here the object has to agree, not the seller of the object. That’s a bit different. And second, my claim here was really not about the question of acquisition but about the question of resentment. Is there any reason to resent such a thing? I don’t think there is. The fact that this isn’t an acquisition comes from other proofs, not because of this. Clearly there are acquisitions like this too; all acquisitions are made with the agreement of both sides, and still at the end of the day I am the owner of the object. Even when I buy something, it’s done with the seller’s agreement, but I still bought it; it still belongs to me. The fact that both sides’ intent is required does not mean the woman is not acquired by me. Here I only noted that I don’t understand why it bothers people, because it’s merely the way the ceremony is carried out, that’s all. Fine. So earlier I spoke about the association within this chapter—why does it appear in the first chapter together with all the laws of acquisition, and a Canaanite slave, and a Hebrew maidservant, and an animal, and all sorts of things of that kind? I think the Talmud’s associations are really not a very strong argument. “The priest’s acquisition of money”—someone mentioned that earlier—the woman is called “the priest’s acquisition of money,” and therefore she may eat terumah. So on the face of it that does indeed mean she is his monetary acquisition, like his ox and donkey. But the Talmud itself brings another source for this too: “Everyone in your household who is pure may eat holy things.” From there too we learn that a priest’s wife may eat terumah. So already the medieval authorities (Rishonim) and later authorities (Acharonim) discuss this issue. Some say it’s not really learned from “his acquisition of money,” because that applies more to a slave and the like, and it’s just a support text; really it comes from “everyone in your household who is pure may eat holy things.” If so, that’s actually a counterproof: why don’t we learn it from “his acquisition of money”? Because she is not his acquisition of money. She is “one pure in his household”; she is part of his household, not his monetary acquisition. But there is a Shitah Mekubetzet; the Avnei Miluim has a long responsum, responsum 17—at the end of Avnei Miluim there are responsa—and in responsum 17 he discusses this at length and brings the Shitah Mekubetzet. And the Shitah Mekubetzet claims that the woman is called “his acquisition of money” because she is acquired by money; that is how the ceremony is performed. But not that she belongs to him, that she is his property. It’s simply called “his acquisition of money” because it is done by means of money. If she belonged to him, then why would it need… there are… he brings there several commentators who say—already among the medieval authorities (Rishonim), I think—that “everyone in your household who is pure may eat holy things” refers to marriage, while “his acquisition of money” refers to betrothal. Now if by virtue of “his acquisition of money” during betrothal she eats terumah, then after marriage you need an additional source? She already belongs to him; after marriage she belongs to him even more, so why wouldn’t she eat terumah? Why would you need another source? But if I say that it is simply because this status was created by means of money, then the source will say: as long as she is betrothed, where that status was created by money, then she is “his acquisition of money.” After marriage she is no longer “his acquisition of money”; we’ve moved up a level—now she is his relative, she is part of his household. So that is a different law: “everyone in your household who is pure may eat holy things.” And there too, very clearly, the Avnei Miluim goes on at length about this issue: there is no ownership of a woman, none at all, and “his acquisition of money” certainly does not prove that point.

[Speaker F] You put the acquisition of a Hebrew slave and a woman… what?

[Rabbi Michael Abraham] The acquisition of a Hebrew slave—why? The acquisition of a Hebrew slave is an acquisition. Is it an acquisition? Certainly. A Hebrew slave—his body is acquired; the Talmud says so.

[Speaker F] So why are the proofs you said earlier relevant there too…

[Rabbi Michael Abraham] No, again, implications—therefore implications don’t prove very much.

[Speaker F] So that’s what I keep not understanding: if implications don’t prove much, then what is left? The discussion…

[Rabbi Michael Abraham] So I’m saying, right, right. Not terminology. The principled discussion, where most of the implications—the asymmetry—really may be detached from it, and there is a principled discussion. It has implications too, but they’re not necessarily the implications that bother people. Meaning, the fact that the document is written with the consent of the one undertaking the obligation—that’s an implication, say, that’s an implication… let’s say that’s an implication… let’s say that’s an implication, but that implication shouldn’t bother feminists. Meaning, I’m saying: what bothers feminists isn’t— it’s another issue, another discussion.

[Speaker F] I haven’t checked the feminist discussion, but I want to understand whether really… I understand the question is how far to compare this to an ordinary acquisition.

[Rabbi Michael Abraham] Not how far to compare—how far there is acquisition here. Not compare. It’s an acquisition.

[Speaker F] No, clearly there are lines of similarity and lines of difference.

[Rabbi Michael Abraham] No, it’s entirely an acquisition. Lines of similarity and lines of difference are in the implications. She claims this is an acquisition; it’s not a similarity, it is an acquisition—you acquire her. That’s it, that’s all.

[Speaker F] So what…

[Rabbi Michael Abraham] There are many things that you acquire in various ways. There is acquisition of the body for produce rights, there is full bodily acquisition, there is by delivery…

[Speaker F] Now I’m confused, so what is the discussion about?

[Rabbi Michael Abraham] The discussion is whether that is true. I claim it is not true.

[Speaker F] And ever since I’ve been here I keep hearing that it’s not… right… that it’s not an acquisition. Right. And now he’s saying yes.

[Rabbi Michael Abraham] No, she is saying yes. Again, I’m coming out against this; I’m saying no. She says yes—it’s not similar to an acquisition, it is an acquisition.

[Speaker F] But you say it has no implications for this question.

[Rabbi Michael Abraham] It does have implications for this question, even if they’re not the implications that bother her, but it has implications. The intent of the obligating party, for example.

[Speaker F] If we look at a Hebrew slave, then some of the proofs you brought—

[Rabbi Michael Abraham] Which proofs?

[Speaker F] For example, a Hebrew slave… you said, how can a person sell himself, after all there has to be… no, you said a proof about who writes the document.

[Rabbi Michael Abraham] That in the case of a Hebrew slave, the one who writes the document is the one undertaking the obligation.

[Speaker F] The one who writes the document is the obligating party. Obviously. But look—there too he receives things in exchange; it’s not something one-sided.

[Rabbi Michael Abraham] In every acquisition you receive consideration—that’s what came up here before. What do you mean? When I buy something, I give its price. Of course.

[Speaker F] Fine, right now the only implication I still remember is that surprising one: that the one who writes the document is the obligating party.

[Rabbi Michael Abraham] Yes, never mind, so that’s…

[Speaker F] Are there other implications? I…

[Rabbi Michael Abraham] There are few implications, there are few implications, but I’m… I’m speaking now at the principled level, meaning the theoretical, the meta-legal level.

[Speaker F] So what is the issue of “there is in him a kind of debt”? I remember there is also discussion among the medieval authorities (Rishonim) whether there is such a thing…

[Rabbi Michael Abraham] You’re talking about a slave.

[Speaker F] Yes. That a person is an owner, at least in some sense, over another person. And there are those who reject that and say that the whole issue of a Hebrew slave is not that he becomes someone’s belonging.

[Rabbi Michael Abraham] The Talmud says, “A Hebrew slave—his body is acquired.” Correct, and around that issue there is a lot of discussion among the medieval authorities (Rishonim) and later authorities (Acharonim): what does “his body is acquired” mean? After all, it’s not like the ox and donkey of a Canaanite slave.

[Speaker F] To bring that discussion in here—apparently it seemed to them morally like a somewhat distorted situation to say that someone else is owner over another person. Regarding a non-Jew they accepted it; regarding a Jew it was a bit difficult, and then they tried to say, okay, it’s not exactly an acquisition.

[Rabbi Michael Abraham] Fine, but when they say “it’s not exactly an acquisition,” translated into my terms: it’s an acquisition that grants fewer rights.

[Speaker F] Exactly, so here too one could say that. It’s an acquisition that…

[Rabbi Michael Abraham] No, here I claim no. I… here it’s obvious that it’s an acquisition that grants fewer rights—obviously you can’t use your wife like an ox and donkey, so that… there’s no argument about that. Even someone who says it’s an acquisition says it’s an acquisition; I claim it’s not an acquisition. It’s not an acquisition; it’s a contract.

[Speaker F] Fine, every acquisition is a contract, yes.

[Rabbi Michael Abraham] No, fine, a contract effected through an act of acquisition, right—that is exactly my claim. There is… the only source I found that really requires some sort of dealing with it is a Talmudic passage in Ketubot 2b. The Talmud discusses what happens if a woman became ill between betrothal and marriage, and the husband divorces her—whether he has to give her the ketubah payment. Some of the medieval authorities (Rishonim) there write that the woman is acquired by the husband. Tosafot HaRosh writes that the woman is the man’s “acquisition of money,” like his slave, his ox, and his donkey, and she depends on his fortune. What does “depends on his fortune” mean? That the fact she became ill was basically caused by his fortune, and therefore he has to pay her the ketubah; it’s his fault and not hers. Never mind all those discussions of “his fortune caused it,” these strange discussions. So… but again, there it says explicitly that the woman is his acquisition like his ox and donkey and everything. But notice two things: first, it could be that this is true—but in the opinion of Tosafot HaRosh. But one must notice, first, that this is said in favor of the woman, to force him to pay her, not not to pay her. So she is viewed as his property for the purpose that he must pay her. The question is whether he really means this as a full acquisition; perhaps he really means that you created with her the bond of kiddushin, and because of that she became ill. It’s like when you buy his ox and donkey, but not that she literally belongs to you like his ox and donkey. She does not belong to you like his ox and donkey—there is no disagreement that she does not belong to you like his ox and donkey in terms of the rights you get. Therefore even there, where it is written explicitly, I am not one hundred percent sure that this is what it means. Now let me summarize for a moment, because I’m already nearing the end—I just want to summarize. Suppose we were to find here a dispute among the medieval authorities (Rishonim). I’m not even sure there is such a dispute, but suppose there is. From the Talmud itself there are several proofs, I think strong ones, that there is not. There are medieval authorities (Rishonim)—Nachmanides and those aligned with him—who say explicitly that a woman is not her husband’s property. There is Tosafot HaRosh here; Rashba here too says something similar, that a woman is her husband’s property like his ox and donkey. So we have a dispute among the medieval authorities (Rishonim). Now what does the logic itself say? Rivka Lubitch says that since the Torah—or the institution of kiddushin—is an acquisition, therefore she says: let’s do marriage of the Noahides, or concubinage, or whatever, without kiddushin. Fine? Now I say: whichever way you look at it, if you think it is not okay to do kiddushin, then why does the Torah require us to do kiddushin? The Torah requires us to do something not okay? So what are you saying? One of two things: either the Torah does not say that, or it is okay. Right? If you have trust, if you are committed to the Torah.

[Speaker F] Conceptually it seems to depend on the circumstances—that’s what she…

[Rabbi Michael Abraham] No, no, let’s talk in these circumstances, it doesn’t matter.

[Speaker F] No, that it’s okay to do kiddushin, but once…

[Rabbi Michael Abraham] But I’m saying, fine, so I’m saying—but today. I’m talking about today, not once.

[Speaker F] Now that it isn’t okay.

[Rabbi Michael Abraham] I’m saying: if you say that today the Torah does not say to do kiddushin, that’s one discussion. It does not say that. She says: let’s do Noahide marriage, let’s do concubinage, other mechanisms, and then we don’t need kiddushin, because it’s not forbidden without kiddushin; there is a legitimate mechanism to do it without. Now that is a problematic claim at the conceptual level, because if we saw that there is a dispute among the medieval authorities (Rishonim) how to interpret this, then at most you should say: that interpretation is unreasonable, so I choose the second interpretation. That is probably what the Torah means, because why assume that the Torah is not okay and then not fulfill its will? I’m talking about someone committed to the Torah, not someone outside criticizing from the outside.

[Speaker F] Conceptually, isn’t she offering a better way?

[Rabbi Michael Abraham] No, it’s not a better way; what she’s doing is not logical. She takes the approach that interprets this incorrectly and then says: wait, but I’m not willing to do that because it’s not okay. But there are approaches that interpret it correctly, and even if there weren’t, I would interpret it correctly. So who decides what is right and what is not right? No, she assumes what is right. I’m not assuming anything. She was persuaded by the approach that it is proprietary. No, she was not persuaded by the approach that it is an acquisition; she herself insists… I show there, systematically, that she insists by force. Her arguments don’t hold water. Fine. No, that is the point. Meaning, if she had said to me: look, it’s obvious to all opinions that this is an acquisition, there is no disagreement at all, then even so I would say—then even so I would say—if that’s what the Torah wants, that’s what the Torah wants; what can I do? Then apparently it is right; I am committed to the Torah. You can’t bypass the laws of the Torah. But all the more so when there is a dispute here—so you choose the problematic side and then choose not to obey because it is problematic? Don’t choose the problematic side and everything will be… Even if all the medieval authorities (Rishonim) had said this, I would interpret it differently against all the medieval authorities (Rishonim), fine? Because I think the Torah is okay. What’s the problem? If there is such an interpretive option, there is no logic in not fulfilling it. Now one must understand that marrying a woman without kiddushin is subject to dispute. It is commonly thought that there is a dispute between Maimonides and the Rosh: according to Maimonides it is a commandment—this is how he formulates it—while according to the Rosh it is preparation for the commandment of procreation. Meaning, before procreation one must do kiddushin. According to Maimonides it is a commandment to do kiddushin. By the way, I’m not at all sure that’s true. In Maimonides there are commandments that are procedural; that too is called a commandment. Commandments 185 and 186 in Maimonides, regarding corpse impurity and annulment of vows—Maimonides says: I call this a commandment, but know that it obligates you to nothing and forbids you from nothing. If you annul vows, they are annulled; if you do not annul them, they are not annulled. There is no obligation to annul and no prohibition on annulling and no anything. The definition of how vows are annulled is a commandment. So it is certainly possible that regarding kiddushin too Maimonides would say that this is the definition of how one betroths a woman. So he calls it a commandment, but that doesn’t mean there is a commandment that you fulfill by doing kiddushin. Maybe yes, maybe no, but there is no necessity here, okay? But suppose there is some dispute here. Then according to Maimonides, when you marry a woman without betrothing her, that is neglect of a positive commandment—neglect of the positive commandment of kiddushin. That is a prohibition: the prohibition involved in neglecting a positive commandment. Not a negative prohibition, but still a prohibition. Are you proposing that we commit a prohibition? It’s not optional; it’s not voluntary. You’ll tell me, yes, but according to the Rosh it is only preparation for a commandment. And that still doesn’t help. Because even according to the Rosh, the Torah requires us to do kiddushin as preparation for the commandment of procreation. Certainly that is how the Torah tells us to act. The fact that it is defined as preparation for a commandment because I don’t recite “for the sake of the unification” before kiddushin—that changes nothing. The Torah says that before you procreate, I require you to do kiddushin, even if it is not defined as a commandment but as preparation for a commandment. So what? It’s like saying: look, building a sukkah is not a commandment, right? To build a sukkah. You have to sit in a sukkah. Building a sukkah is preparation for the commandment. Okay, so I won’t build a sukkah? There’s no need to build a sukkah? But in the end you won’t sit in a sukkah if you don’t build one. Are you going to fulfill procreation without the preparatory step the Torah requires? So even if it isn’t neglect of a positive commandment in the formal sense of neglecting the positive commandment of kiddushin, what does it mean that the Torah wants this preparatory step? If you don’t do it, then you acted not as the Torah wants. So in any case, whether this is neglect of a positive commandment or merely not doing what the Torah expects us to do—even if it’s not formally defined as neglect of a positive commandment—it is still going against what the Torah wants.

[Speaker F] Like not putting on tzitzit?

[Rabbi Michael Abraham] No, it’s not the same. When you don’t put on tzitzit, the Torah wants nothing. Don’t wear a four-cornered garment and you won’t be obligated in tzitzit. There is no problem with that. The Torah does not say: wear a four-cornered garment so as to become obligated in tzitzit.

[Speaker F] It’s a non-obligatory commandment.

[Rabbi Michael Abraham] No, and it’s not like a non-obligatory commandment—that is exactly the point. It is an obligatory commandment, or obligatory preparation for a commandment; it doesn’t matter. Of course it is. No, but you can’t fulfill it in the preferred way. Clearly, it’s preparation. So it’s an ideal commandment from the outset? Obviously, because what? After all, you yourself say: so what? After all, you fulfill procreation even without it, right? So why does the Rosh say this is preparation for a commandment? It’s not preparation for a commandment; I fulfill the commandment even without it. The Rosh says: this is how it should be done, right? That even if you didn’t do it this way you still fulfilled the obligation of procreation, but you didn’t do it as it ought to be done. That is obvious. There is no dispute that the Torah requires kiddushin. The question of how to define it is uninteresting. What difference does that make for this discussion? Whether it is defined as a positive commandment? I’m not at all sure that even according to Maimonides it is a positive commandment. But even if not, it doesn’t matter. According to the Rosh it is only preparation for a commandment, and the Torah wants us to do that preparation for a commandment.

[Speaker F] Is there an option to say that she means—I don’t know how correct and well-founded this is—but that she means it’s a commandment for how to carry out the procedure. Meaning, if you want to live with a woman according to this thing called kiddushin, which forbids her to everyone else and so on, then do it in this and this way. That is the commandment. It’s as though conditional: do the procedure specifically in this form…

[Rabbi Michael Abraham] Are you speaking now in the Rosh’s view? Yes. But the Rosh says it is preparation for the commandment of procreation.

[Speaker F] Right—what did he mean by that?

[Rabbi Michael Abraham] Not marriage—procreation. Right, that’s what he meant. So if you want to live with a woman in a way that she will be forbidden to her surroundings, what does that have to do with procreation?

[Speaker F] Procreation can happen in different ways. No problem—the royal road to fulfill it is this way. Since people want it that way, then if you choose that, do kiddushin as the Torah says.

[Rabbi Michael Abraham] But what does “you choose that” mean? According to what you are saying, it is not preparation for procreation. It is preparation for life with a woman, life as a couple with a woman. Fine, you want through that to do procreation? Good for you! But it isn’t preparation for the commandment of procreation.

[Speaker F] The main point is missing from the text.

[Rabbi Michael Abraham] But most people want it this way.

[Speaker F] Fine, there’s a somewhat sensitive point here.

[Rabbi Michael Abraham] Most people want it this way. They want it? Good for them!

[Speaker F] Not that they—

[Rabbi Michael Abraham] They want to fulfill procreation this way; they want to live this way. And within that framework they also fulfill procreation. That is the estimation of what people want. They want to live their couple-life this way, and part of that is also procreation. That is what people want. People don’t care how they fulfill procreation.

[Speaker F] Like if you want to perform circumcision with a knife, and because of that he sharpens the knife—that’s preparation for a commandment. He could circumcise even without it. No, obviously.

[Rabbi Michael Abraham] But the Torah can’t tell you to sharpen the knife as preparation for the commandment. It has to tell you…

[Speaker F] It can tell you that if you circumcise with a knife, it should be sharpened. No problem.

[Rabbi Michael Abraham] But that’s not preparation for the commandment of circumcision; that’s preparation for the knife. Why? Still—

[Speaker F] If a person sharpens the knife, he is doing preparation for a commandment. No!

[Rabbi Michael Abraham] What does it mean, “doing preparation for a commandment”?

[Speaker F] We said that you can circumcise even without it.

[Rabbi Michael Abraham] Fine, but that can’t… that can’t appear as an obligation in the Torah. It simply can’t… it’s not…

[Speaker F] It did not appear as an obligation. The obligation is: you need—

[Rabbi Michael Abraham] To do it with a sharp knife. That’s all.

[Speaker F] No—

[Rabbi Michael Abraham] An obligation to sharpen the knife could be—

[Speaker F] If you circumcise with a stone there is no obligation,

[Rabbi Michael Abraham] and if you circumcise with a knife there is… you also need to sharpen… no, it needs to be sharp; you don’t need to sharpen it.

[Speaker F] Come on, really—there’s no connection.

[Rabbi Michael Abraham] There is. You don’t need to sharpen it, but it needs to be sharp. That’s not the same thing. In kiddushin, you need to do it. There is no dispute that you need to do kiddushin. The whole question is only how you define it—whether it is preparation for a commandment or a commandment.

[Speaker F] Is there really a dispute that kiddushin has to be done?

[Rabbi Michael Abraham] Is a person obligated to betroth? Yes! Obviously, there’s no dispute about that. Obviously. According to both the Rosh and Maimonides. Absolutely. That I—

[Speaker F] I didn’t know.

[Rabbi Michael Abraham] Of course—what do you mean?

[Speaker F] I always understood that it was conditional: if you want to get married or do something else, then betroth.

[Rabbi Michael Abraham] No, and you…

[Speaker F] What do you mean?

[Rabbi Michael Abraham] You need to marry, and as part of the marriage you need to be betrothed—to betroth. That’s how it is done. Even if it is only preparation for a commandment, that is how it is done. Yes. Obviously. What do you mean? Fine, there are a few more details here. If you want, I’ll upload this article to the site as well, and then you can see it there. Okay, that’s it. Right, you need to be betrothed—to betroth. That’s how it is done, even if it’s only preparation for a commandment, but that’s how it is done. Yes? Obviously, what do you mean. Fine, there are a few more details here. If you want, I’ll upload this article to the site as well, and then you can see it there. Okay, that’s it.