Q&A: The Legal Effect of the Act of Kiddushin
The Legal Effect of the Act of Kiddushin
Question
Dear Rabbi Michi, may he live long and well, hello!
Attached is an article I wrote (sent separately) — since I know you are busy with these topics, I would be very glad to receive your opinion on what I wrote.
In particular, I would be interested to know whether, in your opinion, there is room to rely in practical Jewish law — even only as a supporting consideration — on the claim on which Rabbi Rackman’s court once relied, namely that women and men today do not intend an act of acquisition at the time of kiddushin, but rather the creation of a mutual partnership. And therefore, in the absence of the intent of buyer and seller, the legal act of kiddushin does not take effect at all.
With many blessings and appreciation,
Answer
Hello Rabbi Y.,
Many thanks. I’ll try to go through it when I have time.
Off the cuff, I completely disagree with what you wrote in Rackman’s name. First, because with kiddushin it is not correct to say that this is an acquisition of the wife by the husband (rather, it is a contract). Second, because even if you call it an acquisition, the couple do in fact agree to it (they marry according to the law of Moses and Israel, whatever that means. And almost all of them also know what that means on the practical level, even if in conceptual Talmudic analysis they lack the knowledge to answer whether it is technically an acquisition. The practical implications are very well known). Third, at least in the religious community, if kiddushin really is an acquisition, then presumably the couple agree to that, since that is what Jewish law requires (there is a commandment of kiddushin, or an instrument enabling the commandment).
I wrote on a related issue in response to an article by Rivka Lubitch, in the latest issue of Akdamot. I am attaching her article and my article in a file. You can see there some of these points at greater length.
Goodbye,
Discussion on Answer
Dear Rabbi Michi,
Thank you again for your comments.
What I feel is missing in your words is the following possibility: (I am writing in order to explain Rabbi Rackman’s point of view — personally I was not persuaded that he is correct, though not for your reason…)
To view Jewish law as it was interpreted by the earlier generations and handed down to us as binding Jewish law.
Therefore, if they understood kiddushin as the man’s acquisition of the woman (and that is clearly how at least some commentators understood it), then that is the meaning of kiddushin.
Given that human nature has changed — and we no longer intend to acquire and be acquired when entering a marriage covenant (that is, the meaning of the relationship has changed over the generations) — then the kiddushin the Sages spoke about, a man acquiring a woman, has simply passed from the world, similar to slavery (a man acquiring a man).
And the fact that it shares a name with the modern institution does not change the fact that this is not what the Sages defined in their laws.
As for the logical fallacy and the intention and will of the Creator: when the Sanhedrin is reestablished and the power to expound the Torah’s verses returns to them, they will be able to innovate regarding the parameters of the Torah’s intent and interpret differently from the Sages of their time. But as things stand today, there is no escape from admitting that kiddushin is not part of our lives.
So in order not to depart from the interpretation of earlier generations, you remain faithful to their path and abolish the institution of kiddushin. I have to say, that is a new and exciting interpretation of the concept of conservatism. 🙂
The fact that some people erred and interpreted the concept of kiddushin as ownership, even if it is true that there were such people, says nothing except that they were mistaken. The evidence from the Talmud and from the overwhelming majority of the medieval authorities is clear. So to choose far-fetched views of a minority of decisors lacking authority, and on that basis to abolish this Torah commandment — that is a logic that escapes me in my poverty.
Our Rabbi: behind what I wrote stands the basic assumption that an interpretation given in one generation is not necessarily a mistake — it may have been appropriate for its time and place. If my understanding today is different, I do not thereby decide that they were wrong — both these and those are the words of the living God…
In addition, we currently do not have halakhic authority to alter the determinations and scriptural interpretations of the religious court that came before us.
This conservatism leads to the conclusion that the definition of the halakhic concept follows what they defined and what they understood.
On the other hand, times change — and it may be that there is no longer any actual existence in the world of an act of kiddushin in which the husband acquires something in his wife.
The reason not to adopt the other interpretations of the act of kiddushin — those that fit better with the modern conception of the marriage covenant — stems from the feeling that these conceptions created over the generations a softened view of kiddushin as ownership, but in the final analysis left intact the basic approach according to which the exclusive authority to dissolve the package lies in the husband’s hands.
Seeing kiddushin as an acquisition of ownership makes it possible to look this point straight in the eye and move away from it.
First, they were mistaken not because reality changed. As I explained in the article, they were mistaken because in the Talmud and the medieval authorities it is explicit that this is not so. And in any case, this is a small mistaken minority. And you take that as binding Torah that must not be changed? To choose a mistaken minority and turn it into the sole truth and the binding one, when it is clear even to you that it is a mistake, at least nowadays?
Even if they were not mistaken, and their words were appropriate for their time (perhaps), and even if that had been the view of all the decisors (which clearly it was not) — in our time the truth is different. Therefore, at least today, to act that way is a mistake. And in these circumstances I still do not understand how you propose that commitment to earlier generations should bring us to give up kiddushin. Is abolishing this commandment more continuity than interpreting it in a way that accords with your best understanding in your own day? Especially when there are interpretations (and they are the correct majority view both with respect to the Talmudic sources and with respect to our contemporary values) that fit our generation. And on the other hand, if you have no right to interpret otherwise (than a mistaken minority of medieval and later authorities??!! and to follow the correct majority), then you certainly have no right to abolish it. After all, the Torah says to precede marriage with kiddushin, and you do not do that — all in order to preserve fidelity to an illogical interpretation, contradicted by the sources, of a mistaken minority. That seems absurd to me.
Moreover, according to all opinions, reality has not changed in such a way that the commandment of kiddushin cannot be applied (as with sacrifices in the Temple), but rather values and culture have changed. So what does the Holy One, blessed be He, want us to do today? Certainly not abolish a Torah commandment (or an instrument enabling a commandment). Take, for example, the intention required in the opening blessings of the Amidah. Today, when we are unable to have proper intention, they did not abolish the commandment of prayer; rather, they abolished the requirement that intention be indispensable. Even though intention is indispensable, and we have no right to disagree with our predecessors. It is clear that if something cannot be fulfilled, we do not abolish the commandment; we interpret it in a way that makes it possible to fulfill it today. All the more so when that is the correct interpretation to begin with, and the mistaken interpretation is only the opinion of a minority (in error).
I really do not grasp the logic here.
We’re interested too — at least I am — in the above-mentioned articles people are discussing here.
My article appears on the site. Rivka Lubitch’s is in Akdamot (and mine is there too).
I read the article. In my opinion, Rackman’s position is baseless. The claim that this nullifies the kiddushin is also completely unreasonable, as I explained in the article I sent you: if this is what the Torah means — that the husband acquires his wife as an owner — how can one say that a person who is obligated by the Torah does not intend to fulfill its command?
It follows that the logical way out (! and not only the more convenient one for explanatory purposes) is that this is not what the Torah means. And since it is clear that such interpretations exist (in my opinion they are almost unavoidable, but even if that were not so), we are duty-bound to adopt them as the will of God. Note that here too there is a criticism of your own claim: this is not being done as apologetics or public relations, as you argued, but out of logical consideration. See my explanation there.
Let me make it clearer: the correlation you pointed to goes in the opposite direction. In my view, this is not a matter of subordinating interpretation to explanatory needs, as you claimed, but exactly the reverse: the belief that it is improper for a husband to be the owner of his wife leads to the interpretive conclusion that this is not the meaning of kiddushin in the Torah. As stated, I explained this in detail in my article.