DIGEST
This thesis is composed of two sections. The first section is an original translation of chapters 34 through 38 of Hilchot Kidushin, Shulḥan ‘Arukh, volume Eben ha Ezer; written by Joseph Caro and annotated by Moses Isserles, both in the sixteenth century.
These five chapters are just a part of Hilchot Kidushin which deals with the laws of betrothal. Chapter twenty thirty-four concerns itself with the details of the betrothal ceremony. The regulations with regard to specific blessings and witnesses in attendance are presented herein. Chapter twenty thirty-five concentrates on the laws of agency for betrothal. These laws delineate the appropriate procedure for appointing an agent, the prerequisites for cancelling an agent’s authority, and the responsibility of both the agent and the designator with regard to betrothal. This chapter specifically concentrates on those instances where a male is the designator. Chapter twenty thirty-six details the laws governing those instances where a female appoints the agent. The rights of a woman, who is a minor, regarding betrothal are outlined in chapter thirty-seven. The responsibilities of the young girls’ parents, siblings and suitor regarding betrothal are clearly delineated. One also finds the laws governing the actions of the minor herself. The final chapter, thirty-eight, presents the rules for establishing a conditional betrothal. A conditional betrothal allows a man to finalize a betrothal with a woman only after he has fulfilled certain stipulations. The form and character of these stipulations are outlined in this section.
The second part of this thesis consists of explanatory footnotes. To preserve the original style and literal meaning of the text, notations made to clarify the meaning of words and/or phrases have been included in this section and not in the text itself. To insure clarity for the reader, annotations for a specific chapter are located directly after the translation of the chapter.
FOREWORD
There are two essential components of the traditional Jewish marriage, Kidushin and Nissuin. The laws contained within this thesis deal specifically with the ceremony of Kidushin. It is difficult to find a corresponding word for Kidushin in English. It is more than “an engagement” in the modern sense, as it can be dissolved only by divorce. On the other hand Kidushin is similar to “betrothal” in that it represents a formal stage which is a preliminary to marriage proper. In this thesis Kidushin will be translated as betrothal or any of its various verbal equivalents.
It appears that very early in the development of Jewish marriage ceremonies, there was a distinction between Kidushin and Nissuin. The exact reason for two ceremonies is not readily discernible. However, it is plausible that because of the patriarchal and patrilocal systems of early Jewry, it was the two families, not the children, which arranged the marriage and its terms. Once the arrangements had been concluded, the father of the groom would, it appears, “set aside” the bride for the purpose of her marriage to his son by using the appropriate formula “Thou art sanctified.” The Hebrew word which is used in this formula is Kidush, hence the nominal term Kidushin. In traditional Jewish practice Kidushin was considered an act which changed the status of a man and a woman, i.e., from bachelorhood to married. The actual “betrothal” could be accomplished by means of the transfer of money, the presentation of a document or the act of sexual intercourse. When any one of these acts was accompanied by the phrase “Thou art betrothed unto me” and witnessed by at least two adults Jews, Kidushin was completed. Today Kidushin is usually represented in the wedding ceremony by two parts. These are the Birkhath Erushin which are Rabbinic in origin, and by the giving of a ring to the bride after the pronouncement of the betrothal formula. At a later time, another procedure evolved out of the practice of preliminary negotiations between the bride’s and the groom’s families. This custom known as Kidushin Al Tenai, conditional betrothal, in English, probably developed as a result of each family’s desire to procure the best arrangement for their offspring. The Tenaim, conditions, often helped the parties to have some assurances as to the firm basis for the marriage.
It is impossible to discuss the laws of betrothal and not recognize that women are afforded a unique legal position. In the community of Jews who arranged their lives according to the Shulcḥan ‘Arukh, all people had roles which were strictly defined. It is usually assumed that men and women were not considered equal under the law in traditional societies. This section of Shulcḥan ‘Arukh, Kidushin 34-38, gives us a different picture of a woman’s legal status and the societal response to her position regarding Kidushin. A girl not yet twelve years old is considered a minor and is totally controlled by her father when it comes to Kidushin. She may not be betrothed without her father’s permission. This is the general rule but there are statements which give one the impression that, in reality, the society did foster regard for the young girl. We find that it is strongly suggested that a father never betroth a daughter who is still a minor. Perhaps the strongest statement regarding a woman’s rights is the one which forbids a father to declare, once the girl has reached the age of majority, that he either betrothed or divorced his daughter while she was still a minor. Since a Kohen may not be married to a divorcee, this prohibition is a permanent check on the father’s ability to cast suspicion on the fitness of his daughter to marry a priest. The moment a girl reaches the age of maturity she achieves the same legal standing as a man with regard to Kidushin.
The Jewish communities of the Middle Ages were spread out from Europe to Asia. Often parents, separated by continents, would have their children betrothed. A system of agents was established so that the parent or child could accept betrothal without an extra journey. Women were allowed to appoint agents just as men were allowed to appoint an agent. The laws which apply to the appointment of an agent by a man are also binding on a woman. This area, appointment of an agent for betrothal, is one area where a man and woman are given equal legal status. Yet there are two instances where the rights of a woman were especially protected. One such situation was where a man appointed an agent to betroth a woman for him, and the agent died before there was confirmation that the betrothal had been completed. In this case it was assumed that the betrothal had been completed. Since it would be impossible to know to which woman he was betrothed, he was therefore forbidden to all women who had female relatives. Once a man was considered betrothed, relations with the female relatives of his fiance would be considered incestuous. This prohibition prevented a woman from inadvertently being drawn into an incestuous relationship. Another case of special legal consideration for women concerned the appointment by a woman of a woman to act as her agent. Since a man could have more than one wife (polygamy was still practiced by some in Caro’s time), a female agent could, if she was not careful, become a co-wife. In an attempt to control the number of instances where female agents inadvertently became co-wives with their sender, the law was established that a woman’s agent could only accept betrothal; she could not initiate betrothal.
Built into the legal formula of “conditional betrothal” is protection for the rights of the woman. In certain cases the community could make judgements as to whether the prospective groom had fulfilled the conditions. This enabled ambiguous conditions to meet the test of community standards rather than being decided solely on the testimony of a few. A man could only use money which was totally owned by him as fulfillment of a condition. One final example, of how women’s rights were protected by conditional betrothal, is that only the beneficiary of a condition could cancel it. Here, too, a woman had equal legal status with a man.
The area of betrothal provides one with a clue of how a woman was legally regarded in her society. In this area there are some instances where she had the exact same legal rights as a man. In other instances she received protective rights. In all cases it appears that women were given careful consideration.
The laws of Kidushin represent a small part of the vast legal literature of the Jewish people. As with all great literature it has a beauty which often transcends cultural differences. Though these laws represent a unique set of social circumstances, they reflect a universal concern for the sanctity of marriage and the dignity of all people. The laws of Kidushin do not make men and women equal in all respects, but they do reflect a concern of the Rabbi’s for the welfare of women in a male-oriented society. It is recognition of their concern, not their solutions, which can be helpful to us as we deal with the religious needs of Jewish men and women today.
There are two people whose help and guidance I wish to acknowledge. Dr. Alexander Guttmann, my advisor, has throughout my student years encouraged me to look beyond the formality of Jewish legal literature and see the beauty and humor within.
Linda Weinberg, my wife, provided the emotional support which enabled me to undertake this project. She also has challenged me with regard to Jewish tradition. I thank her, knowing that support and challenge are two pillars upon which we will continually rely.
RABBINIC AUTHORITIES ANO CODIFIERS
11th and 12th Century
R. Isaac Alfassi (Rif), North Africa, Halachot.
R. Isaac Ben Asher Halevi (Ribah), Germany and Central Europe.
12th and 13th Century
R. Moses Ben Maimon (Rambam), Spain and Palestine and Egypt, Mishne Torah, Responsa, Sefer Hamitzvot, Mishnah Commentary.
R. Samuel Ben Meir (Rashbam), France.
13th and 14th Century
R. Moses Ben Nachman (Ramban), Spain and N. Africa, Torat Ha-Adam.
R. Solomon Ben Adret (Rashba), Spain and N. Africa, Torat Ha Bayit, Mishmeret Ha-Bayit.
R. Asher Ben Yechiel (Rosh), Germany, Halachot.
R. Moses of Coucy (Semag), France, Sefer Mitzvot Gadol.
R. Isaac Ben Moses ( ), Germany and Vienna, Or Zarua.
R. Eliezer B. Joel Halevi, ( ), Germany and Central Europe, Abi Ha Ezri.
R. Mordechai Ben Hillel, Germany and Central Europe.
14th and 15th Century
R. Jacob Ben Asher (Tur), Spain and N. Africa, Arbaa Turim.
R. Nissim B. Reuben Gerondi., Gerona.
R. Isaac Ben Sheshet (Rabash), Spain and N. Africa, Legal Decisions.
16th and 17th Century
R. Joseph Ben Ephraim Caro, Orient, Bet Yosef, Shulcḥan ‘Arukh.
R. Moses Isserles (Remah), Eastern Europe, Mappa; Hagahot to Shulcḥan ‘Arukh, Darche Moshe on Tur.
17th and 18th Century
R. Joel Sirkes (Bach), Cracow, Bayit Chadash.
R. Sabbatai Kohen (Shach), Vilna, Sifte Kohen.
R. David B. Samuel Halevi (Taz), Eastern Europe, Ture Zahab.
Bader, Gershom. Cyclopedia of Hebrew Abbreviations. New York: Pardes Publishing House Inc., 1951.
Caro, Joseph. Shulḥan ‘Arukh. Vol. III: Jerusalem: Eben ha Ezer, 1966.
Elman, Peter, ed. Jewish Marriage. London: Soncino Press Limited, 1967.
Epstein, Louis M. Marriage Laws in the Bible and Talmud. Cambridge, Mass.: Harvard University Press, 1942.
Guttmann, A., and Jacobson, B. S. Some Rabbinical Authorities and Codifiers. Cincinnati: HUC-JIR, 1956. (pamphlet)
Jastrow, Marcus. Dictionary of the Targum, Talmud Babli and Yerushalmi and the Midrashic Literature. New York: Pardes Publishing House Inc., 1950.
Kahana, K., Rabbi. The Theory of Marriage in Jewish Law. Leiden, Netherlands: E. J. Beill, 1966.
Passamaneck, Stephen M., Dr. A Handbook of Post Talmudic Halakhic Literature. Los Angeles: HUC-JIR, 1965.
Tchernowitz, Chaim. Toledoth Ha Poskim, Vad Ha Yovel, Vol I, II, III. New York: 1946-1947.