Kiddushin: Acquisition or Partnership?
When studying kiddushei kesef – kiddushin through the giving of an object of value – one must ask: is kiddushin is an actual kinyan, act of acquisition, or not?
The two sides of this question can be seen in the development of the practice of giving a ring. There is no early evidence to this practice. It does not appear in either the Bavli or the Yerushalmi, or in any external record through the time of the Talmud. Cases of kiddushei kesef are mentioned with great frequency in the Talmud, but they are always done with other objects – cups, fruit, baskets, silk, and the like. The first record of a ring is in the early works from the time of the Geonim, the Sefer HaChilukim, which records different practices between Babylonian Jewry and the Jewish community in the Land of Israel. There it is recorded that in Babylon they would not use a ring for kiddushin, but in the Land of Israel they would. Rav Reuven Margoliot, in his notes on this work, explains that in Babylon, men would marry girls who were still young, and the money would be given to the father, so a ring was not significant. In the Land of Israel, however, they would marry women who were older, and give them the object directly, and thus they wanted to use a more romantic item – a ring. [He also notes the practice to use a ring was common in the Roman Empire, and might have thus spread to the Land of Israel which was under Roman rule.]
Giving of money to the father for the sake of marrying an underage girl is characteristic of an act of acquisition. The focus is on the money, and the woman is not a direct partner to the transaction – she is the object of the transaction. This actually parallels another act, which is clearly about acquisition- the father selling his underage girl as a Hebrew slave. On the other hand, if the woman is an adult, and she is receiving the money, it is harder to see this as an acquisition, since she is a direct partner in the transaction. The use of a ring underscores the symbolic nature of this transaction, and characterizes it as something different from kinyan. It characterizes it as kiddushin.
The use of terms – kinyan or kiddushin – is significant. The earliest mishna relating to kiddushin (Kiddushin 1:1) refers to the act as one of kinyan. However, in the entire remainder of the mesekhet the act is referred to as kiddushin. Indeed, when this first mishna was paraphrased and rewritten in a later mishna (Edyot 4:7), the term kinyan had been transformed into the term kiddushin. The Talmud itself (Kiddushin 2a) recognizes this evolution, and states that kinyan is a Biblical term, whereas kiddushin is a rabbinic term. What had happened to effect this change?
It seems that the shift came as a result of another shift: the moving of the mohar payment, a large sum of money given up front from the groom to the bride’s father, and characterized either as a bridal gift or a bridal price. In the time of the Rabbis, the mohar moved from money given at the beginning of the marriage to becoming the ketuvah to be paid at the end of the marriage (see Mishna Ketuvot 8:8, Tosefta 12:1, and Yerushalmi 8:11). This transformation of mohar to ketuvah was done at an early stage in the Tannaitic period, by Shimon ben Shetach (early first century BCE), and was done to protect the interests of the woman – so that the husband would not capriciously divorce her.
This act in itself made the woman less of an object – to be disposed of at will – and more of a subject and protected person in the marital relationship. [The other stipulations of the ketuvah – the tenai ketuvah – further protected the woman’s rights during the marriage.] Moreover, as regards to the act of kiddushin, this shift transformed how the act of kiddushin was perceived. With a large sum of money no longer part of the act, the money for kiddushin stopped being a payment, and transformed into a small, symbolic amount. Thus, it is Beit Hillel and Beit Shammai, who lived after Shimon ben Shetach, who state that it is sufficient to use a minimal amount of money for this act (a dinar or a p’rutah). Thus, in all later mishnayot, once the mohar had become the ketuvah, and the kiddushin money had become a symbolic amount, the very act of marriage was now referred to as kiddushin, and the use of the term of kinyan ceased.
This transition continued over the centuries. Together with the use of a ring, which started in the Land of Israel, the early ketuvot that were written with the Eretz-Yisrael style reflected a concept of marriage that was one of partnership. As studied by Mordechai Friedman, and recorded in his masterful two-volume “Jewish Marriage in Palestine,” these ketuvot used such terms as “partnership” to refer to the marriage and “wife of my covenant” to refer to the bride. Furthermore, they reflect the existence of a practice of the bride’s verbal acceptance of the kiddushin. As Dr. Friedman notes, there were probably few legal differences between Eretz Yisrael and Bavel in this regard, but what is clear is that there was a different conception of the nature of kiddushin and marriage itself.
Also paralleling these changes are differing attitudes towards polygamy. Polygamy was accepted in Bavel, whereas strongly discouraged in the Land of Israel, and finally prohibited in Ashkenaz through cherem Rabbeinu Gershon, the ban of Rabbeinu Gershon (10th Century). The prohibiting of adultery, together with the other cherem prohibiting a husband to divorce his wife against her will, combined to strengthen the wife’s position in marriage and to make her more of a subject, more of an equal partner.
This shift from kinyan to kiddushin is reflected in halakhic writings as well. While Neziv states that a husband owns his wife as sexual property, Hatam Sofer states that in kiddushin there is no purchaser and no object being purchased, but – echoing an earlier statement by Rashba – both husband and wife are reciprocally and in parallel obligating themselves to one another.
Thus, it is in the use of a ring for kiddushin, and in our very use of the term kiddushin, that we symbolize our understanding of kiddushin to not be the acquisition of the woman by the man, but rather the sanctification of the union of the bride and the groom in the partnership of marriage.