Masechet Kiddushin 8-11
Sep. 6th, 2023 03:57 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
seekingferretTrying to catch up.
Daf 8
The Gemara teaches that if the chasan gives a piece of silk to the kallah, there are problems. Nobody argues that the piece of silk isn't worth more than a perutah- someone in the YCT daf shiur pointed out that silk had just made it to the Middle East in the mid-Amoraic period, so we're talking the most advanced, sought after material in the world. What people are uncertain about is the exact value of a piece of silk.
Based on everything we've learned so far, it's unclear why this would matter. So far we've only established that the kesef needs to be worth at least a perutah. But now we introduce two new concepts: Kesef needs to work like kesef, and the woman's understanding of the value of the kesef is part of the required da'as to effect kiddushin. It's not clear that these are majority positions, but they at least have some force in how we observe kiddushin today.
To the first one: Kesef needs to work like kesef means that if instead of doing kiddushin b'kesef with actual money, you need to use something with an unambiguous value of exchange. Something where you can get it appraised and then people would buy it for the appraised price. Something that could viably substitute for money.
The second point is that the Gemara is concerned about a woman being misled, so if she agreed to kiddushin thinking the silk was worth X dollars, but it was only worth 2/3X, that might call into question the kiddushin.
For both these reasons, if the chasan is going to use silk, they need to get it appraised first. The Gemara tries various tricksier approaches, like saying "I'm giving my kallah this piece of silk, which everyone agrees is worth at least a perutah, but only a perutah worth of it is given for purpose of kinyan." But all of this gets messy, how do you know which part of the silk is the part that effects kinyan? The bottom line is appraisal works. And the practical implication today., as brought down in a Tosafos on this daf, is that we have a tradition that the wedding ring should only be a solid metal ring with no gemstones, because appraising gemstones is complicated and more subjective and it potentially runs afoul of these two new ideas about the value of the kesef, but if it's just a gold ring, you can weigh the ring and have an unambiguous value if you melt down the gold, and nobody's being deceived.
There's also discussion of cases where the kiddushin is sort of conditional on the kesef and there is a problem with the kesef. If the chasan says he's going to give the kallah 100 dinars if she marries him, and then he gives 20 dinars, there's maybe an idea that it's a conditional kiddushin, the kinyan takes place immediately with the 20 dinars, which is more than a perutah, and now he has to give her the remaining 80 dinars eventually or it'll invalidate the kiddushin but they'll have to get a divorce. But if he says he's going to give 100 dinars and then he starts counting out all 100 dinars, and after he reaches 20 dinars either she or he stops and says the kiddushin is off, then that's okay, the kinyan never took place. Even though the same 20 dinars was exchanged, because the counting was all part of an instantaneous process of kinyan that was interrupted.
Daf 9
More discussion of sort of conditional kiddushin. If the chasan gives the kallah kesef and she immediately throws it in the garbage in front of the chasan, that's considered a rejection of the kiddushin. Marriage isn't just the empty performance of a physical ritual, it's also a contractual undertaking that requires a meeting of the minds. But, like, if there's a pause, like, she takes the kesef and then the next day she throws it out, then that's just her doing with the kesef as she pleases, and the kiddushin is still valid because her actions indicated that there was a meeting of the minds and an acceptance of the money.
Then some discussion of shtar kiddushin, which is weird and nobody does it. There are no terms of the shtar, the shtar just needs to say "Harei at mekudeshet li", it's not even clear if it needs to be signed with witnesses, if it needs lishma, all the big requirements of a gett or most shtarot for business purposes. Any terms are part of the tenaim or ketubah. So it's weird.
Whereas the discussion of kesef kiddushin was in terms of the chasan and the kallah making a negotiation, the first discussion of shtar kiddushin is in terms of a baraisa of a father giving over his daughter to the chasan. Not clear if this is significant or not, whether this represents an earlier baraisa, or whether it was more normal for shtar kiddushin to be used in the case of the father giving over his daughter. But even though this is the case, the Gemara points out that the shtar is reversed from how you'd expect it- the chasan writes the shtar and gives it to the father/the kallah, which is not what you'd see if it were a bill of sale for a piece of land. But rather the form is the same as kesef, where the chasan gives it over to the kallah. This sort of suggests a distinction again where a kiddushin is formally distinguishable from a sale of a person, something at least slightly more reciprocal.
Daf 11
Further discussion of biah as it effectuates kiddushin. There's a machlokess about whether biah just jumps straight to nisuin, since, like, I think the whole idea in the Torah is that if a man and woman have sex there is the potential for a child and therefore society's interest in forcing the man and woman to be married and obligated to take care of any potential children kicks in. But this competes against the Gemara's interest in not creating marriages that are too much against a woman's consent, #talmudicfeminism, so the Gemara seems to conceptualize biah as only effecting erusin with an intent that it is biah-for-the-purpose-of-kiddushin. R' Linzer compared it to the modern idea of common law marriage. There are facts on the ground that these people are living together as husband and wife, therefore they are husband and wife, and if they want to separate they require a gett. No legal proceduralism required to effect kiddushin.
R' Linzer discussed how this affects halacha l'maaseh with regards to agunot, particular agunot who were baalei t'shuvah. If they married under circumstances that Orthodox Rabbis considered legally defective (witnesses to kiddushin were not shomrei Torah, wedding was performed according to the laws of Reform Judaism, etc...), some Rabbis want to say that this is sufficient to have a beis din annul the marriage. But biah is a problem. If you say that their kiddushin kesef was defective, you sort of have to argue that none of their post-marital intimacy effected kiddushin because they never had the intention that it would effectuate kiddushin, which is a tough haul.
Daf 8
The Gemara teaches that if the chasan gives a piece of silk to the kallah, there are problems. Nobody argues that the piece of silk isn't worth more than a perutah- someone in the YCT daf shiur pointed out that silk had just made it to the Middle East in the mid-Amoraic period, so we're talking the most advanced, sought after material in the world. What people are uncertain about is the exact value of a piece of silk.
Based on everything we've learned so far, it's unclear why this would matter. So far we've only established that the kesef needs to be worth at least a perutah. But now we introduce two new concepts: Kesef needs to work like kesef, and the woman's understanding of the value of the kesef is part of the required da'as to effect kiddushin. It's not clear that these are majority positions, but they at least have some force in how we observe kiddushin today.
To the first one: Kesef needs to work like kesef means that if instead of doing kiddushin b'kesef with actual money, you need to use something with an unambiguous value of exchange. Something where you can get it appraised and then people would buy it for the appraised price. Something that could viably substitute for money.
The second point is that the Gemara is concerned about a woman being misled, so if she agreed to kiddushin thinking the silk was worth X dollars, but it was only worth 2/3X, that might call into question the kiddushin.
For both these reasons, if the chasan is going to use silk, they need to get it appraised first. The Gemara tries various tricksier approaches, like saying "I'm giving my kallah this piece of silk, which everyone agrees is worth at least a perutah, but only a perutah worth of it is given for purpose of kinyan." But all of this gets messy, how do you know which part of the silk is the part that effects kinyan? The bottom line is appraisal works. And the practical implication today., as brought down in a Tosafos on this daf, is that we have a tradition that the wedding ring should only be a solid metal ring with no gemstones, because appraising gemstones is complicated and more subjective and it potentially runs afoul of these two new ideas about the value of the kesef, but if it's just a gold ring, you can weigh the ring and have an unambiguous value if you melt down the gold, and nobody's being deceived.
There's also discussion of cases where the kiddushin is sort of conditional on the kesef and there is a problem with the kesef. If the chasan says he's going to give the kallah 100 dinars if she marries him, and then he gives 20 dinars, there's maybe an idea that it's a conditional kiddushin, the kinyan takes place immediately with the 20 dinars, which is more than a perutah, and now he has to give her the remaining 80 dinars eventually or it'll invalidate the kiddushin but they'll have to get a divorce. But if he says he's going to give 100 dinars and then he starts counting out all 100 dinars, and after he reaches 20 dinars either she or he stops and says the kiddushin is off, then that's okay, the kinyan never took place. Even though the same 20 dinars was exchanged, because the counting was all part of an instantaneous process of kinyan that was interrupted.
Daf 9
More discussion of sort of conditional kiddushin. If the chasan gives the kallah kesef and she immediately throws it in the garbage in front of the chasan, that's considered a rejection of the kiddushin. Marriage isn't just the empty performance of a physical ritual, it's also a contractual undertaking that requires a meeting of the minds. But, like, if there's a pause, like, she takes the kesef and then the next day she throws it out, then that's just her doing with the kesef as she pleases, and the kiddushin is still valid because her actions indicated that there was a meeting of the minds and an acceptance of the money.
Then some discussion of shtar kiddushin, which is weird and nobody does it. There are no terms of the shtar, the shtar just needs to say "Harei at mekudeshet li", it's not even clear if it needs to be signed with witnesses, if it needs lishma, all the big requirements of a gett or most shtarot for business purposes. Any terms are part of the tenaim or ketubah. So it's weird.
Whereas the discussion of kesef kiddushin was in terms of the chasan and the kallah making a negotiation, the first discussion of shtar kiddushin is in terms of a baraisa of a father giving over his daughter to the chasan. Not clear if this is significant or not, whether this represents an earlier baraisa, or whether it was more normal for shtar kiddushin to be used in the case of the father giving over his daughter. But even though this is the case, the Gemara points out that the shtar is reversed from how you'd expect it- the chasan writes the shtar and gives it to the father/the kallah, which is not what you'd see if it were a bill of sale for a piece of land. But rather the form is the same as kesef, where the chasan gives it over to the kallah. This sort of suggests a distinction again where a kiddushin is formally distinguishable from a sale of a person, something at least slightly more reciprocal.
Daf 11
Further discussion of biah as it effectuates kiddushin. There's a machlokess about whether biah just jumps straight to nisuin, since, like, I think the whole idea in the Torah is that if a man and woman have sex there is the potential for a child and therefore society's interest in forcing the man and woman to be married and obligated to take care of any potential children kicks in. But this competes against the Gemara's interest in not creating marriages that are too much against a woman's consent, #talmudicfeminism, so the Gemara seems to conceptualize biah as only effecting erusin with an intent that it is biah-for-the-purpose-of-kiddushin. R' Linzer compared it to the modern idea of common law marriage. There are facts on the ground that these people are living together as husband and wife, therefore they are husband and wife, and if they want to separate they require a gett. No legal proceduralism required to effect kiddushin.
R' Linzer discussed how this affects halacha l'maaseh with regards to agunot, particular agunot who were baalei t'shuvah. If they married under circumstances that Orthodox Rabbis considered legally defective (witnesses to kiddushin were not shomrei Torah, wedding was performed according to the laws of Reform Judaism, etc...), some Rabbis want to say that this is sufficient to have a beis din annul the marriage. But biah is a problem. If you say that their kiddushin kesef was defective, you sort of have to argue that none of their post-marital intimacy effected kiddushin because they never had the intention that it would effectuate kiddushin, which is a tough haul.