Kiddushin: Ownership or Partnership? Part 4: From Kinyan to Kiddushin in the Talmud

Introduction

In Section A, we looked at the history of the ketuvah, and saw how it evolved from the Biblical mohar, and how this came with a raising of the wife’s status in the marriage.

Here, in Section B, we will see how the shift from mohar to ketuvah was paralleled by a shift from kinyan to kiddushin in the act of the marriage itself.  We will see how this led to a new understanding about the nature of marriage, one which was less about ownership, although its exact definition remained unclear.

Finally, in Section C, we will see how the concept of marriage as partnership developed in the time of the Rishonim and afterwards and how throughout Rabbinic history, these two models – ownership and partnership – remained in ongoing dialectic and competition.

The Opening Mishnayot of Tractate Kiddushin {source ‎10}

A look at the mishnayot in the first chapter of Kiddushin {source ‎10} strongly reinforce the impression that kiddushin was conceived of as a type of ownership.  The mishna used the word nikneit, is acquired: “A woman is acquired in three ways.”  There are those who argue that this is to be understood figuratively, that the word kinyan can refer to a formal legal that effects some status change – transfer of property, assumption of debt, or change of status (see, for example Ramban Kiddushin 15a, s.v. Zot Omeret, and in modern scholarship David Weiss Halivni, “The Use of ‮קנה‬ in Connection with Marriage.” The Harvard Theological Review 57.3 (1964): 244-48).  Although that is the case in the Gemara’s use of the term, it is questionable if kinyan ever has this meaning in the mishna or other Tannaitic material.  More to the point, though, is the context in which this term appears here in the first chapter of Kiddushin.  In surveying the other mishnayot of the first perek, what emerges as the simple meaning of the term kinyan in this context? 

10. Mishnayot Kiddushin, chapter 1  | משניות מסכת קידושין פרק א 

The mishnayot of this perek follow a formula “X is acquired, nikneit, through A, B, and C.”  The meaning of the word nikneit in the later mishnayot is clear – it means to acquire property.  Certainly, Canaanite slaves, animals, land, and chattel (mishnayot 3-5) are all seen as property to be acquired.  This would suggest that the Hebrew slave and the wife would be seen in the same, or a similar way.  This is reinforced by the means of acquisition.  A Hebrew slave is acquired by money and by a writ, and a wife is acquired by money and by a writ.  Even the act of sex as an act of acquisition can find parallel in the acquisition of a Canaanite slave.  A Canaanite slave, in addition to being likewise acquired by money and by writ, is also acquired through chazakah, which refers to a usage that shows mastery, such as taking off his master’s shoes, bathing his master, or the like (Kiddushin 22b).  This seems to find parallel in the case of a man having sex with his wife – if the ownership is understood as a right to his wife’s sexuality, then this is an act of “usage” which demonstrates mastery or ownership.

It should be noted that the mishnayot do represent an ordered list, starting with humans that are not owned fully as property (wives and Hebrew slaves), moving on to humans which are owned as property (Canaanite slaves), and then progressing to living animals, land, and chattel.  Even these last three can be seen moving from things which are more independent, less fully given to be owned – animals – to land, which although inanimate remains independence from the person – he does not take it physically into his possession or into his house (and, as the verse says, “For the land is Mine” (Vayirka 25:23) – to something inanimate and fully able to be possessed – chattel.

Although a wife is at the top of this list, and the least able to be fully owned, her appearance on the list is strong evidence that we are talking about a type of literal ownership, and not a figurative one. It would be an ownership like the Hebrew slave, which appears after the wife.  As discussed in Part I, a Hebrew slave is owned in the sense of being fully possessed by his master, but owned “for his labor” – his master has a right in the slave himself which entitles him to the slave’s labor.  In parallel a wife would be owned in the sense that her husband would have exclusive rights to her in matters relating to sex.

Two Competing Terms: Kinyan and Kiddushin {sources ‎11-‎12}

While the first mishna refers to kiddushin as a kinyan, acquisition, this mishna is the only time that this term is used in all of the Tannaitic material (it also appears in the parallel Tosefta, Kiddushin 1:1, and there is an echo of it in the braitta in Bavli, Kiddushin 6a).  Throughout the entire rest of the tractate – and in the name of the tractate itself – marriage is referred to as kiddushin.   

The opening Gemara of Kiddushin discusses this difference in terminology {source ‎11}.  Where according to the Gemara do each of these terms come from?  What is the significance in their different origins?  How does the Gemara explain the meaning of the term kiddushin?

11. Babylonian Talmud, Kiddushin 2b  |   (:בבלי, קידושין (ב

The Talmud states that the term kinyan is a Biblical term and the term kiddushin is a Rabbinic one.  As we know, terms are not arbitrary; they indicate meaning.  The term used to name an institution can be assumed to reflect how that institution is conceptualized.  The Talmud’s statement here is of great significance.  It is telling us that the institution of marriage was conceptualized in one way in the time of the Torah and in another way in Rabbinic times.  

Now, the Torah does not actually use the word kinyan in the context of marriage.  Nevertheless, the Talmud in passage immediately preceding the one above, states that the Torah  refers to marriage, specifically marriage through money, with the verb yikach, to take, and that this verb is synonymous with the work liknot, to acquire or to take possession of {source ‎12}.  The Talmud is telling us that the word nikneit/kinyan indicates a Biblical concept of marriage similar to the taking possession of a field- a concept based on the principle of ownership.

12. Babylonian Talmud, Kiddushin 2a  |  (.בבלי, קידושין (ב

Now, As discussed in the introduction to Part I, Section B, the term kicha in the Torah actually refers to the second stage, nissuin, not the first stage being addressed here, eirusin.  That verb used to refer to effectuating that first stage is either eiras, betroth – when speaking from the husband’s perspective, or natati, “I have given,” when speaking from the father’s perspective.  This does not in any way challenge the Talmud’s insight.  The verb “to give” used in the Torah by the father  indicates as much of a sense of selling and changing hands / taking possession, as the verb “to take” that the Talmud identifies with the act of betrothal.  

More significant, though, is what we have explored at length in the earlier lectures – the role of the mohar/ bride-price.  This institution – the paying by the groom to the father of a significant sum of money to effectuate the kiddushin – is a bigger indicator of kiddushin as a form of purchase then the verb “to take” or “to give.”

The Meaning of the Term Kiddushin {sources ‎13-‎15}

The use of a different term for marriage in the Rabbinic period reflects a different understanding about the nature of the institution.  At this stage in history it is no longer appropriate to refer to marriage as kinyan, since it is no longer thought of as a type of ownership.  What is it thought of?  What does the term kiddushin tell us about the concept of marriage?

According to this Talmudic passage, the term kiddushin, and the verb li’kadesh, evokes the act of sanctifying something, so that it now is holy and now belongs to the Temple.  Just as no one other than the Temple can benefit from a holy object, so – says the Talmud – no one other than this woman’s husband can derive [sexual] benefit from her.

This new meaning, while moving away from a strict sense of possession, shares many of the concepts present in that approach.  The emphasis even here is about who has sexual rights to the woman – only her husband, no one else.  There is also an echo of possession – just as the Temple owns an object and this makes it forbidden to others, so this man owns this woman and she is forbidden to others.  

We need however to also note the important differences.  The act of sanctifying an object is fundamentally not an act of taking possession, but an act of defining something’s nature and its status.  It is not about donating the object to the Temple as much as it is about making it a holy object.  This is certainly true when talking about sanctifying an animal as a sacrifice – it is about the identity of the animal, and in fact the Talmud connects kiddushin with exactly this type of act – the sanctifying of an animal as a sacrifice (Kiddushin 7a and Rashi, s.v. nifshatu).  

We can thus  say that according to this sugya, by the Rabbinic period the act of marrying was no longer – or was less – about the man taking possession of his wife and rather was seen as an act of the man changing  the personal status of this woman to be his wife, a status that would make her exclusively his sexually and forbidden to all others.

***

Before we return to see what brought about this transformation, we should take a minute to question whether this explanation of the term kiddushin/mikudeshet is the only one to consider.  We should recall that there is no Amorah who gave this explanation; it was rather stated by the Stam of the Gemara, and hence can be seen as being relatively late, and possibly not reflecting all understandings of this term throughout the Rabbinic period.  

One alternate explanation for this term can be found in Tosafot.  Tosafot states that the simple meaning of the term mikudeshet is not “sanctified” but rather “designated” or “set apart” {source ‎13}.  This is based on an understanding of the root k’d’sh to refer to setting something apart for any purpose – a holy one, a profane one, or a neutral one – and not to holiness per se.  See, for example, Rashi Breishit 38:31 and Devarim 23:18, where he translates kadesh and kedeisha not as cult prostitutes, but as a person “set aside” for licentious purposes (and see also Rashi, Shemot 19:22).  

This explanation, while still having echoes of exclusive sexual rights, emphasizes that aspect less, and points more to the relationship that is being created.  This woman is now designated for this man.  Admittedly, this is still not symmetrical; there is no declaration that this man has been designated for this woman.  We are, at the end of the day, still dealing with a polygamous society,  Nevertheless, this concept of kiddushin is a concept that focuses on the relationship that is being created between two people, not on one person’s taking possession of the other.

13. Tosafot Kiddushin (2b), s.v. di’Assar   |   תוספות קידושין (ב:) ד”ה דאסר

There is another meaning that suggests itself.  Perhaps the most obvious is to associate this idea with the idea of sanctity – not of the woman, but of the marriage.  To “sanctify” a woman to a man would mean to bring a woman into a sanctified relationship, or said another way, the marriage sanctifies the sexual act between the husband and wife. This idea is present in Rabbi Akiva’s statement that the letter  the letter yod in the word איש combined with the letter heh in the word אישה, spells out God’s name, to teach that “A man and a woman – if they merit, the Divine Presence dwells among them” (Sotah 16a).  

The association of holiness and sanctity with marriage can be seen most clearly in the blessing that is made over marriage, the birkhat eirusin {source ‎14}.  What does this brakha suggest about the nature of kiddushin and its connection to kedusha?

14.  Text of the Blessing over Betrothal   |   נוסח ברכת אירוסין

Kedusha is a dominant theme in this blessing.  In addition to starting with the formulaic אשר קדשנו במצותיו וצונו found in all mitzvah blessings, it ends with a general blessing of sanctity – Who sanctifies Israel.  There are actually two competing texts of this ending, one states simply that God “sanctifies Israel,” while another version – the most common version said now – elaborates: God “sanctifies Israel through chuppah and kiddushin.”  This second, longer version makes it clear that the sanctity is instilled through the institution of kiddushin, and this idea is reinforced by the juxtaposition of the word kiddushin which precedes this ending to the word mikadesh – Who sanctifies – and by the ending of the entire brakha with the word kiddushin.  [This also answers the question posed by the Rishonim: why did the text not read kiddushin vi’chuppah, which would have been the proper chronological order?  The answer, according to this, is simple: to underscore the theme of kedusha connected to the word and institution of kiddushin.]

Even the first, short-version, implies that the sanctity of Israel is connected, in some way, to the institution of kiddushin.  The Geonim and Rishonim who rejected the longer version do so because it suggests that kiddushin is the source of our sanctity as a people.  As Rav Hai Gaon writes (quoted in Ramban, Ketuvot 7b, s.v. vi’Tzivanu): תוספת זו שאתם מוסיפים גריעותא היא שאין קדושת ישראל תלויה בכך, “this addition [the words ‘through chuppah and ‘kiddushin’] that you are adding [to the brakha] is a detraction, for the sanctity of Israel is not dependant on this.”  They nevertheless agree that the point of ending with “Who sanctifies Israel” is to stress that one of the ways that God has sanctified us is with the institution of kiddushin.  In the words of Ramban: שקדשן בכל עסקי נשואין, “God has sanctified them with all matters relating to marriage.”

The association of this brakha with kedusha leads some Rishonim to say that this brakha is a type of a Kiddush.  Just as we make Kiddush on Friday night to sanctify, and to acknowledge the sanctity of, the Shabbat, so we make a Kiddush before the kiddushin to sanctify and acknowledge the sanctity of the marriage.  This idea is already present in Ramban (ibid.), and is elaborated on by Ritvah {source ‎15}.

15.  Ritvah, Ketuvot (7b), s.v. vi’Nahagu  |   ריטב”א, כתובות (ז:) ד”ה ונהגו

The brakha over kiddushin reflects an understanding of the institution as a source of kedusha, a means by which God sanctifies Israel, and the making of the brakha ritualizes the kedusha dimension of the marriage.  This reflects perhaps the simplest understanding of the word kiddushin – an institution of holiness, the holiness of the relationship, the holiness of sex in the marital context, and the holiness of the family.  It seems that we have moved a far way from the original concept of marriage as kinyan, as a purchase of the wife and an owning of her sexuality.

The Transformation of Kinyan to Kiddushin – Mohar, Ketuvah, and the Prutah {sources ‎19-‎19}

What caused this transformation?  How did we move from the Biblical kinyan to the Rabbinic kiddushin?  The first mishna {source ‎10} provides a clue.  If we contrast this first mishna with the later mishnayot of the same chapter, we see that there are commentary sections that interrupt the simple structure of the mishna {source ‎16}.  The simple structure is “X is acquired through A, B, and C” and when dealing with humans ends with, “and acquires himself/herself through D, E, and F.”  The one exception to this structure is the case of the wife.  What do you make of the explanatory sections that appear here, and how would this mishna read if they were absent?  

16. Mishnayot Kiddushin, chapter 1    |     משניות מסכת קידושין פרק א

These explanatory sections that appear in the mishna seem to be later glosses to an earlier mishna.  By “later gloss” the intent is not that they were added after the Mishnaic period.  Rather, a phenomenon that has been noted by Talmudic scholars is that later Tannaim will often interpret phrases of an early, authoritative stam mishna, and that these explanations will then get inserted into the text of the mishna.  

A Slight Discursion – the Layered Structure of the Mishna

This layered structure can be seen in the first mishna in Pesachim, which explicitly references an earlier authoritative statement, and then introduces a debate between Beit Hillel and Beit Shammai as to the meaning of the key term {source ‎17}.   It can likewise be seen in a more subtle way in the first mishna in Gittin, where the mishna refers to a person bringing a get from medinat ha’yam (overseas), and this is followed by three Tanaaitic opinions {source ‎18}.  Rather than seeing these opinions as arguing on this first statement, it makes more sense to see them as debating the meaning and scope of the term medinat ha’yam, with the first two opinions interpreting that phrase broadly, and the third one limiting it to its most narrow and literal meaning.  A similar gloss can be found at the end of the mishna regarding the meaning of bringing a gett from “one country to another country.”  If we take out these glosses, we can see that the early structure of the mishna would have been: One who brings a gett from medinat ha’yam must say… And one who takes a gett there, or one who brings a gett from one country to another in medinat ha’yam must say…”.  This simple skeletal structure was added to by the glosses and interpretations of later Tanaaim.

17.  Mishna Pesachim 1:1  |   משנה פסחים א’:א’

18.  Mishna Gittin 1:1   |   משנה גיטין א’:א

What the Mishna Originally Meant

Returning to our mishna, we see that the original text would have read simply, “A woman is acquired in three ways, with money, with a writ, and through intercourse, and she acquires herself through a gett and the death of the husband.”  Like in the Mishna in Pesachim, Beit Shammai and Beit Hillel debated the meaning of the term “money” in this early, authoritative mishna.  For Beit Hillel it was a perutah and for Beit Shammai it was a dinar.  To this is added a later gloss to clarify the value of the perutah.

This parsing of the mishna is consistent with the widely held position in Talmudic scholarship that groups of mishnayot like those of the first chapter of Kiddushin, which are held together by a tight organizing principle and consistent structure, and which are presented in an undebated, stam fashion, are some of the earliest mishnayot groupings from the Tannaitic period. (Another example of this are the אין בין mishnayot which make up the second half of the first chapter of Megillah).  This, then, would have been an early collection of mishnayot regarding acts of acquisition, and where Beit Hillel and Beit Shammai, in a later period, debated the meaning of the key term “money” in the mishna relating to marriage.

Let us now ask ourselves what the mishna would have meant prior to this gloss and debate of Beit Hillel and Beit Shammai.  If the mishna had simply said – which it had originally – that a woman is acquired with money, how much money would we have thought that meant?  Well, what do we think the mishna means when we say that a slave or a field is purchased with money?  The answer is obvious – the going price, however much is being asked for it.  

The same, then, was the original meaning of the mishna regarding marriage.   When one acquires a woman through money, how much money is required?  Whatever the going rate is.  And of course we know what the going rate is.  It is the what the Torah tells us is the standard mohar, the bride-price, for virgins, namely 50 shekels or 200 zuz.  The word kesef even appears in those verses: “Silver – kesef – he should weigh out, according to the mohar of virgins.” (Shemot 22:16) and “The man who sleeps with her shall pay the father of the lass fifty kesef, [shekels] of silver.” (Devarim 22:29).   Of course, in any given case the father could have asked for more or accepted less, but the point remains – the money in the mishna, in its original sense, meant the amount of money being demanded for the bride’s hand in marriage.

This early mishna, then, reflects the earliest Biblical understanding of marriage – a form of kinyan, acquisition, that was made through the payment of kesef, as the mohar, the bride-price, mentioned in the Torah.  This is why the Gemara states that the term kinyan in this first mishna represents the Biblical concept of marriage.

Beit Hillel and Beit Shammai’s gloss represented a radical shift, a change from kinyan to kiddushin.  Once it was decided that the kesef need be nothing more than a dinar or a perutah, it was no longer possible to view the act as a form of purchase.  If all that is given is a penny, or an object worth a penny, then the act is clearly a symbolic one and not a real purchase.  It was this shift that turned the kinyan into kiddushin.  This is why in the entire rest of the tractate marriage is referred to as kiddushin. By the time these rest of the mishnayot were being written – almost all the mishnayot come from the time of Beit Hillel and Beit Shammai or later – the concept of kinyan has receded into the background, and marriage is now seen not as purchase, but as kiddushin.  This is what the Gemara means when it says that the other mishnayot used the term kiddushin, which is the Rabbinic term.  It is how marriage has been conceptualized in the Rabbinic period.

The First Mishna in Kiddushin – Redux

A beautiful way to see this change from kinyan to kiddushin, is to compare the first mishna in Kiddushin with a parallel mishna in Eduyot {source ‎19}.  What do you notice that is different about the structure and the words of this mishna?  Which mishna do you think is the later one?

19.  Mishna Eduyot, 4:7   |   

This mishna in Eduyot is a rewrite of the mishna in Kiddushin.  This can be seen by the structure – rather than presenting a stam statement that a woman can be married through money, with then Beit Hillel and Beit Shammai debating the meaning of that term, this mishna has already incorporated that debate, and it is written as one, seamless statement.  This is the work of a rewrite and editing from the earlier layered text.  This should not be surprising. The Tosefta Eduyot (1:1) tells us that the mishnayot in that tractate were written at Kerem bi’Yavneh, the rabbinic assembly created by Rabbi Yochanan ben Zakkai in the aftermath of the destruction of the Temple in 70 C.E.  This period came immediately after the Beit Hillel and Beit Shammai period which ended roughly at the time of the destruction of the Temple (there may have been some overlap of the two periods).  

The other difference is, of course, the term used for marriage.  Here the term is mitkadeshet not nikneit.  Once the idea of a symbolic dinar or perutah had been incorporated into the text and the concept of marriage, what had been a kinyan was not a kiddushin.

Why the Change? – From Mohar to Ketuvah and From Kinyan to Kiddushin

What led to this (re-)interpretation of kesef by Beit Hillel and Beit Shammai.  The answer is, the enactments of Shimon ben Shetach, who lived two generations prior to them.  Shimon ben Shetach, it will be remembered (from Part II, Section A), instituted that no money be given up front – not to the father, not to to be held by the husband, and not to purchase household items.  Once the money was no longer given up front at the time of the marriage, it was no longer possible to interpret kesef as a significant sum of money.  The groom was not about to incur a large financial debt to his wife and give her (or her father) a large sum of money.  It therefore became necessary to reinterpret kesef as a small symbolic sum – a dinar or a perutah – and in this way what was an act of kinyan became an act of kiddushin.

There is something particularly poetic about all of this.  This change in the institution of the ketuvah – the moving of the money from the beginning of the marriage to its end – was enacted to protect the wife against easy divorce.  It was a change that raised the woman’s status within the marriage, making her more of a subject and a person, and less of an object to be disposed of at will.  And it was exactly this change – which made the woman less as property – which contributed to the reframing of the act of marriage into something other than a purchase.   The woman was now a protected party in the marriage, who was not purchased by her husband, but who entered into an act of kiddushin, an act that sanctified the relationship between them.

It needs to be emphasized that none of this happened in a vacuum.  It is not as if a deeply entrenched societal and legal institution transformed overnight because of a change in the payment of the ketuvah or the kesef kiddushin.  Rather, we are looking at a shift that was undoubtedly happening in society at large in terms of the institution of marriage.  This shift was both reflected in, and reinforced by, these changes to the mohar, the ketuvah, and the kesef kiddushin.  What emerged was a new legal conceptualization of marriage, one in which the concept of ownership had receded into the background to make space for new ways of thinking about the institution.  We now turn to Section C, where we explore how a concept of ownership emerged in the period of the Rishonim, and how these two concepts – ownership and partnership – remained in tension throughout the period of the Rishonim and the poskim.