Today is October 21, 2017 / /

The Torah Learning Library of Yeshivat Chovevei Torah

Kiddushin: Ownership or Partnership? Part 5: Kinyan and Kiddushin in Competition – Gemara and Rishonim

by Rabbi Dov Linzer (Posted on August 3, 2016)
Topics: Halakha & Modernity, Marriage & Family, Talmud, Nashim, Kiddushin

Print Friendly, PDF & Email

Introduction

We have seen how the mohar transformed from money up front and a type of bride-price to money paid at the end of the marriage, becoming our Rabbinic ketuvah.  We have also seen how parallel to that the money given at the beginning of the marriage changed from being a significant sum to a small symbolic amount –a perutah – thus transforming the act from one of kinyan to one of kiddushin.  What exactly this new concept of kiddushin means is open for interpretation.  The stam of the Gemara Kiddushin, in the opening sugya, explains that it is a form of “sanctifying” of status change of the wife, making her forbidden sexually to all other men.  Tosafot states that a simpler meaning is that it is the designating of the wife for the husband – an explanation that points more towards the relationship between the two of them.  Finally, we saw how the brakha of kiddushin reflects an understanding of this as a sanctification of the relationship between husband and wife.  According to this, the act of kiddushin is an act of entering into a sanctified relationship.

Here, in Section C, we see how the different models of marriage were in competition in the Gemara and Rishonim.  Alongside of this, we will see how the kiddushin model, for some authorities, became a model of marriage as partnership, and the impact this had on halakha.

 

Gemara {sources ‎20-‎23}

We start by noting that the new model of kiddushin did not totally replace the old one of kinyan, an approach which had deep roots in practice and in law.  The model of kinyan was pushed more beneath the surface, but it continued to reemerge and, for some, it even remained the dominant model.

A brief survey of some of the sugyot in the first chapter of Tractate Kiddushin shows how these two models – even on a purely conceptual level – continued to exist side by side.  

In the Gemara, the model of kinyan is present in a number of sugyot.  Consider the discussion of the Biblical source for the rule that kiddushin is effectuated through kesef, the giving of money.  We’ve already seen in Section B, that the opening sugya (Kiddushin 2a, based on 4b), connects this with Avraham’s purchase of the field of Ephron with kesef.   Another sugya {source ‎20} connects it with a father selling his daughter as a Hebrew slave, even referring to him as her adon, master.  Also following this kinyan model is a discussion of a man selling his cow and marrying off his daughter in the same transaction {source ‎21}.  Both of these put kiddushin squarely in the kinyan category, sharing space with the selling of slaves and the selling of animals.

20.  Bavli, Kiddushin (3b)   |  (:בבלי, קידושין (ג

בכסף. מנ”ל?… אמר רב יהודה אמר רב, דאמר קרא: +שמות כא+ ויצאה חנם אין כסף, אין כסף לאדון זה, אבל יש כסף לאדון אחר, ומאן ניהו? אב.“By money” – from where do we know this?… Said Rav Judah in Rav’s name, Because Scripture says “Then she shall go out for nothing, without money,” to say: no money is due to this master [when she leaves his control], but money is due to another master, viz., her father.

21.  Bavli, Kiddushin (7b)  |   (:בבלי, קידושין (ז

בעי רב פפא: בתך ופרתך בפרוטה, מהו? מי אמרינן בתך בחצי פרוטה ופרתך בחצי פרוטה, או דילמא בתך בפרוטה ופרתך במשיכה? תיקו… R. Papa asked: What [if he declares,] ‘Thy daughter and thy cow [be mine] for a perutah’? Do we say [it means,] thy daughter for half a perutah, and thy cow for half a perutah, or perhaps [he meant,] ‘Thy daughter by a perutah, and thy cow by moving it’? The question remains unanswered.

There are a few sugyot in the Gemara that reflect the kiddushin model.  One example of this is the discussion of a man who says to a woman “half of you is married to me.”  The Gemara suggests that this should work based on a comparison to a man who sanctifies half of an animal as a sacrifice, where the whole animal becomes sanctified as a result {source ‎23‎22}.  This comparison seems to be based on the kiddushin/sanctification (as a sacrifice) model, and not the kinyan model, as Rashi states explicitly.  Also related to this model is the discussion in 5b-6a, about the declaration “behold you are betrothed to me” and the role this may have as a formal speech act.  This seems to similarly be based on the sanctification model, as the way that a person sanctifies something to the Temple is through a speech act.

22. Bavli, Kiddushin (7a)    |   (.בבלי, קידושין (ז

אמר רבא: התקדשי לי לחציי – מקודשת, חצייך מקודשת לי – אינה מקודשת…

אמר ליה מר זוטרא בריה דרב מרי לרבינא: וניפשטו לה קידושי בכולה! מי לא תניא: האומר רגלה של זו עולה – תהא כולה עולה? … מי דמי? התם בהמה, הכא דעת אחרת!
רש”י: ניפשטו קידושי בכולה – כי אמר חצייך מקודשת לי דהא מקודשת בלשון הקדש קאמר לה.

Rava said: [If a man declares,] ‘Be thou betrothed to half of me,’ she is betrothed: ‘half of thee be betrothed to me,’ she is not betrothed…

Mar Zutra, son of R. Mari, said to Ravina: Yet let the kiddushin spread through the whole of her! Has it not been taught: If one declares, ‘Let the foot of this [animal] be a burnt-offering,’ the whole of it is a burnt-offering?… How can you compare the cases? There it is an animal, whereas here we have an independent mind.

Rashi: “Let kiddushin spread throughout the whole of her” – when he says ‘half of you is mekudeshet to me,’ for mekudeshet, which is a language of hekdesh, sanctification, is what he was saying to her.

***

Interestingly, Rashi in the above sugya {source ‎22} notes that the kiddushin model was the relevant one because the man used the language of kiddushin when he married the woman.   This suggests that both models exist, and either could be employed based on the way in which the act was performed – what language was used, and also possibly whether the marriage was effectuated through money, a writ, or an act of sex.

As far as language is concerned, there is a discussion in the Talmud as to what type of declaration is valid for the act of kiddushin {source ‎23}.   The central question is what word, other than mekudeshet, may be used to describe the state of betrothal.  Note how many of the words that describe a relationship of possession and ownership are definitely valid, while those that describe more of a personal relationship (‘helpmate,’ ‘opposite me,’ etc.) are of more questionable validity.  There may be other factors at play here, such as whether these words could reasonably mean something else (see Rashi), but overall the impression is that the model of ownership is more well-established than the model of kiddushin, especially as it relates to one of personal relationship.

23.   Bavli, Kiddushin (6a)   |   (.בבלי, קידושין (ו

ת”ר: הרי את אשתי, הרי את ארוסתי הרי את קנויה לי – מקודשת

הרי את שלי, הרי את ברשותי, הרי את זקוקה לי – מקודשת…

איבעיא להו: מיוחדת לי, מהו? מיועדת לי, מהו? עזרתי, מהו?

נגדתי, מהו? עצורתי, מהו? צלעתי, מהו?

סגורתי, מהו? תחתי, מהו? תפושתי, מהו? לקוחתי, מהו?

פשוט מיהא חדא, דתניא: האומר לקוחתי – הרי זו מקודשת, משום שנאמר: כי יקח איש אשה.

Our Rabbis taught: [if one declares,] ‘Behold, thou art my wife,’ ‘Behold, thou art my arusah (betrothed),’ ‘Behold, thou art acquired to me,’ she is betrothed.

‘Behold, thou art mine,’ ‘Behold, thou art under my authority,’ ‘Thou art tied unto me,’ she is betrothed…

They raised the question: [What if one declares,] ‘Thou art singled out for me,’ ‘Thou art designated unto me,’ ‘Thou art my helpmate’?

‘Thou art meet for me,’ ‘Thou art gathered in to me,’ ‘Thou art my rib,’ what is the law?

‘Thou art closed in to me,’ ‘Thou art my replacement,’ ‘Thou art kept [seized] unto me,’ [or,] ‘Thou art taken by me,’ what is the law?

One at least you may solve. For it was taught: If one declares, ‘Thou art taken by me,’ she is betrothed, for it is written, “when a man takes a wife.”

 

 

Rishonim {sources ‎24-‎31}

Ran and Ramban {sources ‎24-‎28}

If there were overlapping voices present in the Gemara, when we turn to the Rishonim we find that these voices become more distinct.  Ran and Ramban are two of these distinct voices, with Ran a clear proponent of the kinyan model, and Ramban a clear proponent of the kiddushin model.

As we have seen earlier (Lecture I, Section A), Ran comments on a passage in the Talmud Nedarim that states that the Torah allows a man to have all types of sexual activity with his wife.  Ran states that this is because she has been acquired by her husband for this purpose {source ‎24}.  This framing could even suggest that he may have sex with her against her will, a point which we will return to later.  

24. Ran, Nedarim (20b), s.v. HaTorah Hitiratcha   |   ר”ן נדרים (כ:) ד”ה התורה התירתך

התורה התירתך – דכתיב כי יקח איש אשה שהיא לקוחה לו לעשות בה כל חפצוThe Torah permitted you to him – as the verse states, “If a man takes a wife” – she is acquired by him to do with her all that he desires.

Elsewhere in the same tractate, Ran describes the mechanics of the marriage act in a way which totally reflect this kinyan model.  The Talmud already established that it is the groom who gives the object of value (now, a ring), and who makes the declaration {source ‎25}.   

25. Ran, Nedarim (30a), s.v. vi’Isha Nami   |   (.ר”ן נדרים (ל

אלא כיון שהתורה אמרה כי יקח איש אשה ולא אמרה כי תלקח אשה לאיש לא כל הימנה שתכניס עצמה לרשות הבעל ומש”ה אמרי’ בפ”ק דקידושין (דף ה) דאי אמרה היא הריני מאורסת לך אין בדבריה ממש אלא מכיון שהיא מסכמת לקדושי האיש היא מבטלת דעתה ורצונה ומשוי נפשה אצל הבעל כדבר של הפקר והבעל מכניסה לרשותו הלכך אין אנו דנין בקדושין מצד האשה אלא מצד הבעלBut because the Torah said, “When a man takes a woman” and did not say “when a woman is taken by a man,” she has no role to bring herself into her husband’s domain, and therefore we say in Kiddushin (5b) that if she says, “I am betrothed unto you,” her words have no value.  Rather [the mechanics are as follows]: once she acquiesces to the man’s kiddushin she nullifies her thoughts and her will and makes herself to her husband like an object that is ownerless.  The husband then brings her into his domain.  Therefore we do not consider the act of kiddushin from the perspective of the woman but rather from the perspective of the husband.

Ran states that the woman must be totally passive.  It is the man who acts and takes the wife, not the wife who is acts to have herself taken (it goes without saying that she does not take him as her husband).  This requires her not only to not give the object of value, but also to not even make the verbal declaration.  All that is needed, indeed all that is allowed, is that she not stand in the way of the man’s act, that she acquiesces to what he is doing.  He further elaborates that she must make herself “like an object that is hefker, without an owner,” and this allows the man to take possession of her.  

For Ran, the kinyan model dictates not only that the man be the one taking possession, but that the woman must make herself into an object.  As long as she is a subject, a person expressing will and participation, then it will not be possible for the husband to take possession of her; it will become a two-sided affair and not a one-sided one.   

This Ran actually addresses a problem that arises for the kinyan model.  That model made sense in cases where the father was the one marrying off his daughter, which – as we saw – are the only cases that the Torah deals with.  However, starting at least as early as Mishnaic times, it was already halakhically recognized and societally accepted for an adult woman to marry herself off.   Those cases, however, fit better with the kiddushin model.  It is somewhat harder to see how those cases would fit the kinyan model – how can a man purchase a wife from herself?  How can the woman be both the seller and the thing being sold?  This is not impossible by any means.  It is also what happens when a person sells himself into slavery.  Nevertheless, it does complicate things.  

Ran’s answer is that in order for her to be the object being sold, she must minimize her active role as seller as much as possible.  Notice that he does not say that she makes herself an object that is about to be purchased.  Such an object would still have a seller.  Rather, she removes herself as a subject/owner from the picture.  She is left as an ownerless object, which allows the man to come and take possession of her (similar to finding a lost object – see Kiddushin 2a, “It is the way of man to go searching after his lost object [the woman], and not the way of the lost object to go searching after the man”).

 

***

 

Ramban’s approach stands in stark contrast to that of Ran.  As we saw earlier (Part I, Section A), Ramban explains that the Torah’s obligation of she’er, k’sut and onah are obligations relating to different aspects of the sexual relationship {source ‎26}.  

26.  Ramban, Commentary to Exodus 21:9   |   רמב”ן שמות פרק כא פסוק ט

וענין הכתוב, שאם יקח אחרת, קרוב בשרה של זו וכסות מטתה ועת דודיה לא יגרע ממנה, כי כן משפט הבנות.

והטעם, שלא תהיה האחרת יושבת לו על מטה כבודה והיו שם לבשר אחד, וזו עמו כפילגש ישכב עמה בדרך מקרה ועל הארץ כבא אל אשה זונה, ולכן מנעו הכתוב מזה. וכך אמרו חכמים (כתובות מח א) שארה זו קרוב בשר, שלא ינהג בה כמנהג פרסיים שמשמשין מטותיהן בלבושיהן.

The sense of the verse if that if he takes another wife [after he has married the woman who began as his Hebrew slave], the closeness of her flesh [of the first wife] and her bedclothes and her time of lovemaking he should not withhold from her, because that is the statute of women (lit. daughters).  

The reason for this prohibition is that the new wife should not be sitting on a honorable bed, where they will be there as one flesh, and the first wife will be treated as a concubine, sleeping with him only casually (lit. by chance) and on the floor, like one who comes onto a prostitute.  Thus the verse prohibits this.  And so our Sages have explained, “She’erah implies closeness of the flesh, viz., that he must not treat her in the manner of the Persians who perform their conjugal duties in their clothes.”

It is the husband’s obligation not just to have sex with his wife, but to do so in a manner that is not just pleasure-seeking and that does not treat her “as a prostitute”.  Marital sex must take place in a context which makes husband and wife become “one flesh”.  This understanding of marital sex seems diametrically opposed to that of Ran, who understands it to be a purchased right/ownership that the husband has in his wife.  The underscoring of becoming “one flesh” similarly reflects an understanding of marriage as a personal relationship that is so intimate that it brings about the union of two individuals.  This is a model of kiddushin, not of kinyan.
A number of Ramban’s comments on the Talmud directly addresses the term “kinyan” and explain that this is meant figuratively and not literally.  Thus, Ramban in Gittin {source ‎27} (and similarly in Kiddushin 16a, s.v. Zot Omeret), states that a Hebrew slave is owned in two senses, one, literal monetary ownership – which entitles the master to his labor, and the second, a kinyan ha’guf, which he also refers to as a kinyan issur, best translated as a “status relationship.”

27.  Ramban, Gittin (38b), s.v. Gufa lo kadish   |   רמב”ן גיטין (לח:) ד”ה גופיה לא קדיש

ששני קנינין יש בעבד אחד קנין ממון דהיינו למעשה ידיו ואחד קנין הגוף שהוא אסור דומיא דקנין אישות אשת איש ולא פקע אלא בגיטא דחירותא אע”ג דפקע קנין ממון שבו כגון שהפקירו…For there are two “ownerships” in a slave, one is a monetary ownership, i.e., ownership of him for what he produces, and the other is an “ownership of the body”, which is a prohibition status, similar to the “ownership” of marriage of a married woman, and this second ownership cannot be removed without a writ of freedom, even if the monetary ownership has been removed, such as in a case where the owner has renounced ownership of him…

This kinyan issur gives him the status of a Hebrew slave, which is a status with halakhic consequences unrelated to his master’s right to his labor (a Hebrew slave can’t marry a freewoman, for example).  This second meaning of the term kinyan, says Ramban, is the only meaning of this term in the context of marriage.  

For Ramban, the Talmud’s use of the term kinyan when talking about marriage does not refer to the husband’s ownership of his wife, but rather to an act that created the halakhic status of this woman as a married woman.  It seems that the reason this is described as a type of kinyan, even in the figurative sense, is because there is still a control/power differential at play here.  One person – the husband or master – did the act that changed the status of the other person (admittedly, with the other person’s agreement and participation), and that same person has the power to negate that act and change that status, by giving a writ of manumission to the slave or a writ of divorce to his wife.  

While we are still not talking about a relationship of true parity, for Ramban it is most definitely not a relationship of ownership.  It is the kiddushin model which is operative, not the kinyan one.

***

In another passage, Ramban states again that the wife is not the husband’s property, and uses this to address an issue raised by Tosafot.  In the beginning of Gittin, the Gemara addresses a case when a gett is brought by a person purporting to be the husband’s agent, in order to be delivered to the wife.  Tosafot asks why the court does not represent the husband’s interests in his absence and claim on his behalf that the gett may be forged.  Ramban’s answer is simple – the wife is not the husband’s property, and a case of the delivery of a gett is treated as a case of personal status, not as a case of one litigant trying to claim something that belongs to the other party {source ‎28}.

28.  Ramban, Gittin (9a), s.v. Im   |   רמב”ן גיטין (ט.) ד”ה אם

אבל זו אינה דומה למשנתנו שאין אשה זו ממונו של בעל אלא ברשות עצמה היא להנשא, ואנן לא מנעינן לה כדאמרי’ איהו לא מערער אנן ניקו ונערערThis case [of claiming for an absent owner that a writ against him may be a forgery], however, is not similar to our mishna [where a woman brings a get in her husband’s absence].  For the woman is not the husband’s property, but she rather is in her own control to choose to marry, and we do not prevent her from doing this, as the Gemara states: “If he is not going to challenge it, should we get up and challenge it?”

***

 

We finally note that it is also Ramban who introduced the idea of birkhat eirusin as a type of Kiddush made over the marriage (Ketuvot 7b, s.v. vi’Tzivanu, discussed in Part II, Section B).  This ritual of sanctifying the marriage, and the very echo of Kiddush/kiddushin/me’kadesh amo Yisrael, combine to reinforce the conceptualization of kiddushin as a sanctification of the relationship, and not as an ownership of the wife.

 

Rambam and Rashba – Does the Husband Own his Wife’s Sexuality? {sources ‎29-‎30}

 

A similar debate between Ran and Ramban can be found between Rambam and Rashba in the matter of a woman who vows to make forbidden to her husband the sexual pleasure that he would derive from her.  This is a vow, not an oath, and it has the effect of making an object forbidden.  The “object” here is conceptualized as the pleasure that comes from the act of sex.  

See Rambam’s ruling of this case {source ‎29}. How does Rambam explain why the wife is not able to take such a vow to make herself forbidden to her husband? How is this different from why the husband is not able to make himself forbidden his wife?

29.  Rambam, Laws of Vows, 12:9  |   רמב”ם הלכות נדרים פרק יב:ט

האשה שאמרה לבעלה הנאת תשמישי אסורה עליך אינו צריך להפר, הא למה זה דומה לאוסר פירות חבירו על בעל הפירות

וכן הוא שאומר לה הנאת תשמישי אסורה עליך לא אמר כלום מפני שהוא משועבד לה בשאר כסות ועונה כמו שבארנו בהלכות אישות…

If a woman said to her husband, “The sexual pleasure that you would derive from me is forbidden to you,” he does not need to annul this vow.  To what may this be compared?  To one who forbids fruit on the owner of the fruit.  

Similarly, if he said, “The sexual pleasure that you would derive from me is forbidden to you,” he did not say anything, because he is obligated to her in food, clothing, and marital sex, as we have explained in the Laws of Marriage…

Rambam explains that a wife cannot make herself forbidden to her husband, because this would be like Reuven taking a vow to make Shimon’s fruit forbidden to Shimon.  This obviously cannot work.  Reuven can vow to make his own fruit forbidden to Shimon, or Shimon’s fruit forbidden to him, but he has not right to make Shimon’s fruit forbidden to Shimon.  What Rambam is saying, is that the wife’s sexuality belongs to the husband, and because it fundamentally does not belong to the wife, her vow to make it forbidden to her husband is meaningless.

One might be inclined to interpret this Rambam metaphorically, and to say that he merely means that the husband has rights to – but not ownership of – his wife’s sexuality.  This does not seem to be the case.  For when Rambam explains why the husband cannot make himself forbidden to his wife, he does not use the same metaphor – that this is the wife’s “fruits” that the husband cannot make forbidden to her.  Rather, he states that his prior obligation to have sex with his wife, prevents the vow from taking place.  

It seems clear from Rambam that while the wife has rights to have sex with her husband, the husband owns his wife’s sexuality.  This is an expression of kiddushin as ownership.
In contrast, see how Rashba explains why these respective vows are not effective {source ‎30}.  What terms does Rashba use to explain why the vow is not effective – terms of ownership or of rights?  Are these parallel between husband and wife?  Where do these rights come from?

30.  Rashba, Nedarim 15b   |   (:הרשב”א מסכת נדרים (טו

ואמר רב כהנא תשמישי עליך כופים אותה ומשמשתו שעבודי משעבדא ליה.

וה”ה לאומר לאשתו הנאת תשמישי עליך שכופים אותו ומשמשה דשעבודי משעבד לה והרי זה כאוסר עליה מה שהוא שלה

ומסתברא דלאו משום מצוה בלבד קאמר אלא משום דנשתעבדו זה לזה לכך שע”י כך עמדו ונשאו…

“Rav Kahana said that a woman who says ‘The sexual pleasure that you would derive from me is forbidden to you,’ must be compelled to have sex with her husband because she is encumbered to him [i.e., he has a legal claim on her].”

The same is true regarding a man who says to his wife, ‘The sexual pleasure you would derive from me is forbidden to you,”  that we compel him to have sex with her because he is encumbered to her [i.e., she has a legal claim on him] and this is like one who attempts to forbid something to her which is hers.  

And it stands to reason that [her rights] are not only because of the mitzvah, but because they have obligated themselves one to the other for this purpose, because was this intent they entered into marriage (lit. they stood up and were married.)

Rashba quotes that Talmud’s statement that the wife cannot make herself forbidden to her husband by a vow, because she is “encumbered” to her husband, that is, because her husband has rights to her sexual pleasure.  He then states that the same is true in reverse – that the husband cannot make himself forbidden to his wife – and he uses the exact same terms to explain why this is not possible.  Unlike Rambam, Rashba is stating that for both husband and wife it is an issue of rights, not of ownership.

Rashba goes even further in inverting Rambam’s position.  He uses Rambam’s language of ownership to describe the wife’s rights to her husband’s sexuality.  Rashba states that he cannot make himself forbidden to her, because this is something that she owns.  This is obviously not literally true.  The wife does not own the husband’s sexuality, or at least she does not have exclusive rights to it – he can legally marry another woman.  Rashba’s point, however, is that her rights on her husband to have sex with her preclude him from taking a vow that would compromise those rights.  This isn’t ownership per se, but it is comparable.

In this brief passage, Rashba has neutralized the concept of ownership in marriage.  He has made this concept not literal – it refers to rights, not actual ownership – and he has stated that to the degree that ti exists, it is true equally of the wife’s rights to her husband as it is of the husband’s rights to his wife.

The final point to note is what, for Rashba, is the source of these rights.  For Rambam, the answer is obvious – the husband’s rights to his wife’s sexuality is the act of kiddushin – he owns her for this purpose.  In contrast, her rights to have sex with him derive from his mitzvah of onah, conjugal relations.

For Rashba, however, kiddushin is not about ownership.  Therefore, the husband’s rights to his wife’s sexuality must derive from elsewhere.  He identifies the source of these rights as the implicit reciprocal obligation that husband and wife assume to one another when they stand under the chuppah and enter into nissuin.  Since nissuin is about entering into a sexual life, the implicit agreement between husband and wife when they stand under the chuppah is that they will be available to one another for martial sex.  

What is significant is, first, that this is a right and not ownership – and hence it comes at the time of nissuin which is an act not about acquisition, but about assuming reciprocal responsibilities to one another.  Secondly, it is a right that emerges from an implicit mutual contractual obligation.  This reflects and reinforces the idea of marriage as partnership –something entered into equally by both parties – and not as ownership.  [Rashba even makes a point of downplaying the role of the mitzvah of onah in this regard, which is only an obligation of the husband to the wife, and not the reverse.  It seems that he is intent on creating as much symmetry as possible between the obligations of the husband and those of the wife].

***

Finally, in this section we look at a Tosafot in Yevamot {source ‎31}.  This Tosafot does not directly address the question of marriage as ownership, but – like Rashba above – touches on the issue of the symmetry or asymmetry between husband and wife in matters of sex.  

The Talmud in Yevamot (61b) raises a number of possibilities as to what constitutes the Biblical zonah, a prostitute/promiscuous woman whom a kohen is forbidden to marry.  One possibility presented – although this is not how halakha concludes – is that any woman who has had sex outside of marriage is defined as a zonah.  The Talmud describes this as  “a single man who has sex with a single woman.”  Tosafot notes that the same would be true if a married man had sex with a single woman.  What is somewhat surprising about the reason that Tosafot gives for this?

31.   Tosafot, Yevamot (61b), s.v. Panuy   |   תוס’ יבמות (סא:) ד”ה פנוי

פנוי הבא על הפנויה כו’ – לאו דוקא נקט פנוי דכ”ש נשוי שמזנה על אשתו דחשובה זונה.A single man who has sex with a single woman (renders her a zonah).  This is not specifically a single man, for it is even more so the case with a married man who commits an act of sexual infidelity against his wife, that the woman (he has had sex with) is considered a zonah.

It is not surprising that Tosafot states that the man’s status is immaterial since the issue is about the woman having sex outside of marriage.  What is unexpected, however, is that Tosafot states that when the man is married this makes the act of sex with him more of a sexual violation, because the man is not only having sex outside of marriage, he is also committing sexual infidelity against his wife.  

While Tosafot’s description is certainly true in terms of our understanding of marriage, it must be remembered that from a purely halakhic perspective, marriage does not restrict the husband sexually; he may marry another woman and he may have sex with an unmarried woman (if she is not a niddah).  Tosafot, however, is talking at a time after the cherem of Rabbeinu Gershom, at a time when polygamy had been effectively outlawed within Ashkenazic Jewry.  Thus, although Rabbeinu Gershom did not directly forbid a married man to have sex with a single woman, the effect of forbidding a second wife was to make marriage to be seen of in more parallel terms.  The same way marriage for the wife meant limiting her sexual activity to her husband, for the husband it meant limiting his sexual activity to the wife.  This runs counter to the notion of marriage as ownership, and reflects an understating of the institution in more mutual and parallel terms.

 

Conclusion

We have seen that Ramban, Rashba writings and rulings reflect an understanding of marriage as partnership (or something approximating it).  We have also seen that Rambam and Ran’s rulings reflect an understanding as marriage as ownership, specifically sexual ownership.  We also noted how Tosafot, writing in a time of monogamy and after the cherem of Rabbeinu Gershom, understands that marriage demands fidelity from the husband, just as it does form the wife.  In such a context of mutual fidelity, it is much more difficult to conceptualize marriage as a form of ownership.  And once marriage is defined as one man and one woman, the more likely it will be that it will be seen of as a partnership, as a coming together of two people, the Edenic “becoming one flesh”.   

It is perhaps not surprising, then, that those who embrace the partnership model – Ramban, Rashba, and Tosafot – were living in a society (Christian Europe) where marriage was monogamous, while Rambam, who embraces the ownership model, was living in a society (Islam) where marriage remained polygamous.  This is not a one-to-one correspondence, as Ran lived in the same society as Ramban and Rashba, and nevertheless was a proponent of the ownership model.   As we have seen, both models exist side-by-side in the Gemara – kinyan/ownership as the older, Biblical model, kiddushin/partnership (or something like it) as the more recent, Rabbinic model.  Ran’s embracing of the ownership model is thus a reflection of his fidelity to those Talmudic sources that express it as such, and not a reflection of the institution of marriage as he knew it.  In fact, Ran’s statements were only made in the context of explaining certain Talmudic passages.  It remains unclear if he would have conceded that other passages reflect a different understanding of marriage or if, had he been issuing a halakhic ruling, he would have embraced the ownership model or the partnership one.

In the next section we will see how these two models continued to be debated through the period of the Achronim and later poskim, and how the partnership model can already be found in Ketuvot from the times of the Geonim.