Friday, January 29, 2010

Torah from Our Beit Midrash

The act of kiddushin, the giving of the ring, is accompanied by a verbal statement - harei at mekudeshet li bi'taba'at zo ki'dat Moshe vi'Yisrael, "behold you are betrothed to me with this ring, according to the laws of Moshe and Israel." In our Lifecycles class this Thursday, we explored the nature of that verbal statement. On the face of it, it would appear to be nothing more than an expression of intent, and not an actual constituent part of the act of kiddushin. This assumption, however, is challenged by the Gemara (5b) that states that the bride cannot make this statement, and, if she does, the kiddushin is either definitely or possibly invalid. Meiri notes that while there are those that state that the same requirement would apply to a purchase of a field - that the one giving the money has to make the statement that he is purchasing the field - that this is nonsensical, and that in such a case either purchaser or seller can make the statement of intent.

Clearly, if the statement is nothing more than an expression of intent, either party can make it. Why, then, for kiddushin must it be made only by the man? It seems clear that what we are dealing with here is something more - not just an expression of intent, but a speech act. The words are themselves part of the kiddushin act and, jointly with the giving of the ring, create the status of kiddushin. Since, according to the Talmud, the entire kiddushin act has to be done by the man, the speech act, as a part of this act, must be done by him as well.

This understanding is also implied by the gemarot (Kiddushin 5b and Nedarim 6b) that discuss the question of whether there is a yad (literally, "hand") for kiddushin statements. The halakhic concept of a yad is a way to extend and fill in elliptical statements, and it is one that is sourced in the world of neder, of vows, where the statement is the act itself. It seems that we are borrowing concepts from the world of haflaah, of speech acts, and applying them to kiddushin, suggesting that here too we are dealing with a type of a speech act. This is also indicated by the Gemara (7a) that states that if a man says "Half of you is mekudeshet to me," that the kiddushin should be effective, and the kiddushin should apply to the whole woman, just as when one sanctifies half an animal, the sanctity spreads throughout the entire animal. This comparison to the world of kedusha, of sanctification, seems to be based on the characterization of the act as one of kiddushin (Rashi explicitly makes the connection between kedusha and kiddushin), and again suggests that we are dealing, as is the case with hekdesh, with a speech act. Finally, the very words themselves indicate a speech act. The groom does not say, "I want to betroth you with this ring," words that reflect his intentions, but rather "With this ring, behold you are betrothed," words that can be seen as effecting the status change itself.

However, the story is not so simple. In the Talmudic discussion immediately following the one on 5b, the Gemara (6a) states that if a man had been talking with a woman on topics relating to kiddushin, and then gave her a ring in silence, that the kiddushin is valid. This seems to indicate that all that is needed in context and an understanding of intent, and not a speech act per se. And, in fact, a number of Rishonim understand that the question of whether a woman can make the statement rather than the groom, is exactly the question of whether this is a speech act and part of the act of kiddushin, and hence must be done by the groom, or merely an expression of intent, which could be done by either party.

There are three possibilities how to deal with these apparently contradictory sources: (1) There is no speech act, there is only an expression of intent, and nevertheless, there is a special demand that in kiddushin even this expression of intent be done by the chatan. (2) The is a required speech act, and the Gemara that states that prior discussion suffices is not referring to context, but to an actual speech act itself. This position is adopted by Meiri who states that this prior discussion is meaningful only if it contained a statement made by the groom which followed all the specific requirements of the classic statement of kiddushin. For Meiri, then, this prior conversation contains the speech act of kiddushin, occurring somewhat earlier than the act of the giving of the ring. (3) A speech act is not necessary, and hence context and understood intent can suffice, but when there is a speech act, it becomes part of the act of kiddushin.

This third approach is the best fit of the sources, and reflects the complex nature of kiddushin itself. As discussed in a previous posting, kiddushin evolved from "kinyan" to "kiddushin", from an act of acquisition to an act of status change - and thus kiddushin may contain elements of both. For example, Rashi (7a) states that the comparison to sanctifying an animal is only possible because the groom used the term "mekudeshet," "you are betrothed." Had he said "ki'nu'yah," you are acquired, the comparison would not have been valid. This suggests that there are two tracks (or a complex, hybrid track) and depending on which track one takes, different rules may apply. Following this logic, if one makes no formal statement, the act can be seen as a kinyan, and context will suffice. However, once a speech act is made, and especially when the term "kiddushin" is used, the act will be seen as following the kiddushin model, and as an act of status change, and as such, the speech act will be an integral component of this act.

The competition of these two models come to the fore in cases where a statement was made, but there were problems with it. The Gemara (6a) states that in some cases a bad statement can be worse than no statement. This comes up in practice when the groom misspeaks and drops some words, like forgetting "li," "to me" or forgetting "bi'taba'at zo," "with this ring." There is much discussion in the Rishonim and Achronim around these cases, and the Shulkhan Arukh (EH 27) rules that as long as they had been speaking prior to this on the topic of kiddushin, it is valid. Arukh HaShulkhan (EH 27:1) states that the bride and groom standing under the chuppah would more than suffice for sufficient context, and could be used to "fill in" the missing words. Not all decisors agree, however, and would still invalidate, or question the validity of, such an act of kiddushin. It seems that these decisors believe that once the speech act is made, it becomes central, and cannot be corrected by use of context (although prior speech - as is the case in the Shulkhan Arukh - might be able to redefine it).

A similar debate exists regarding whether the kallah can also make a statement, such as "hareini mikabelet ta'ba'at zo u'mi'kudeshet likha ki'dat Moshe vi'Yisrael," "Behold I accept this ring and am betrothed to you according to the laws of Moshe and Israel." While the Talmud states that she cannot make this statement instead of the groom, Rosh and Tosafot Rid debate whether this is acceptable had they been already talking about kiddushin matters. Rosh says that in such a case it is acceptable, because while the groom must do the full act of kiddushin, in this case the statement of harei at was not required, and thus there is no problem with her making a statement. Tosafot Rid disagrees and states that although no statement was necessary, when she makes a statement it becomes part of the kiddushin act, which must be done only by the chatan. This debate seems to be the same debate discussed above, with Rosh understanding that there is no speech act, and Tosafot Rid stating that although one may not be necessary, when it takes place it becomes part of the act of kiddushin, and this must be done by the groom. Shulkhan Arukh rules like Rosh, and the Achronim (recorded in Otzar HaPoskim and summarized in Nissuim Ki'Hilkhatam) state that even Tosafot Rid would agree that once the groom makes the formal harei at statement there would be no problem with the bride making a statement of hareini mekudeshet. Once the groom has done both components of the kiddushin - the giving of the ring and the speech acts, it is fully acceptable for the bride to say hareini mekudeshet as well.
As we have seen, this debate over the nature of the statement harei at, can be understood to be a debate over the basic nature of the act - as one of kinyan or one of kiddushin. It is thus significant that, in our practice, we have made the speech act a formal part of the act of the act of kiddushin, insisting on a very precise formula, and reflecting our embracing of the kiddushin model over the kinyan model. Our embracing of this model is further borne out by the growing practice in Modern Orthodox circles of the bride making a hareini mekudeshet statement, and for an exploration of opportunities for greater participation of the bride in the ceremony itself, an issue I have discussed elsewhere. The tension between kinyan and kiddushin continues throughout the sources and our halakhic tradition, and our affirmation of the kiddushin model began over 2000 years ago, and continues until today.

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