Kiddushin קידושין

The order of Nashim primarily deals with all things that relate to marriage: The life of the couple, the financial aspects of the relationship between a husband and wife, widowhood, levirate marriage, the halakhot with regard to forbidden sexual relationships, unfaithful spouses, and the willing dissolution of a marriage. It also touches upon vows and naziriteship. It is only tractate Kiddushin, the final tractate in this order, that is primarily devoted to the different elements of the act of Kiddushin, betrothal.

There are many elements of marital life, and tractate Kiddushin is focused primarily on clarifying how the first stage of the marital bond, betrothal, is established. In other words, how do a man and woman become a married couple? How are they transformed into one new entity, a family? The bond of marriage is not formed by virtue of the couple residing together, nor does it result from bringing shared offspring into the world. The marital relationship, while not a blood relationship, is in some ways stronger than any other familial bonds. There are ramifications that result from this union with regard to different areas of halakha.

Betrothal is, from a legal perspective, a positive mitzva. When a man wishes to marry a woman, which he is obligated to do in order to fulfill the mitzva of procreation, he must first betroth her. Tractate Kiddushin does not discuss the biblical source for this mitzva, nor does it discuss the details of the wedding ceremony. Instead, this tractate clarifies the halakhot of betrothal.

In the Torah, this betrothal is called eirusin, but the Sages refer to it as kiddushin (see Kiddushin 2b). Similarly, the Torah uses the verb “take” to connote the effecting of betrothal. The betrothal bond on its own does not constitute a complete marriage, as there still remains the wedding ceremony, or nisuin, as it is referred to by the Sages. Although the betrothed couple does not enjoy the rights that come along with marriage until that point, their connection and their mutual obligation to one another is created through the act of betrothal.

The Torah does not elaborate on how the betrothal process is carried out. These details were instead transmitted through the Oral Law and are derived through precise readings of the Written Torah.

There are differences of opinion in the Talmud with regard to the specifics, but the main components of betrothal are agreed upon by everyone. They include four fundamental elements. The first is the manner in which betrothal is effected. The second is the intent of the man and the woman with regard to the betrothal. The third is the requirement that witnesses see the act of betrothal. The fourth is the requirement that the man and the woman be halakhically eligible to become betrothed to one another.

There are three modes of acquisition, i.e., ways in which the betrothal bond can be effected. A woman can be betrothed by means of money or an item of monetary value being given to her from a man; via a document in which the man writes that the document should effect betrothal; or through an act of intercourse with the stated intention that it effect betrothal. Although there are those who say that betrothal can also be performed by means of the couple entering a wedding canopy, this opinion is not accepted as halakha.

In each case, it must be clear that the act is being performed for the sake of the betrothal, most often via a clear and explicit statement made by the man who wishes to betroth the woman. Betrothal does not take effect without the knowledge and consent of both sides; nevertheless, a father can betroth his daughter to a man provided that the daughter is not yet an adult. Both parties to the betrothal must be competent, and therefore an imbecile, a male minor, or a female minor on her own cannot be party to betrothal. Since betrothal is dependent on the will and consent of both parties, the Sages provide different conditions, both with regard to the time and the circumstances, under which a betrothal takes effect.

The witnesses for betrothal are not meant to serve as witnesses for authentication; rather, their participation is an intrinsic element of the betrothal. Consequently, betrothal that was performed without witnesses is disregarded, even if both parties agree that the act of betrothal took place.

In some cases, the halakhic status of one or both of the parties prevents betrothal from taking effect. If one of the parties is either a Canaanite slave or a gentile, then the betrothal does not take effect. Similarly, the betrothal does not take effect when the two parties are forbidden to each other due to a prohibition punishable by karet, either because they are relatives or because she is a married woman. By contrast, when a less severe prohibition is involved, the betrothal takes effect after the fact, although intercourse between the parties is forbidden. The punishment incurred for their act of intercourse will depend on the details of the prohibition.

Betrothal is an act of acquisition, and therefore it is similar to other types of acquisition in a number of ways. Once the betrothal takes place, the bond between the couple no longer depends on will or agreement. Instead, the boundaries of their bond are set and stand firm, as they do with regard to other prohibitions. With regard to this, there is a similarity between betrothal and consecration, to which the term kiddushin is related. The act of consecration also depends on the will of the person who consecrates the item, and once it is performed an essential change takes effect that cannot be canceled or altered.

At the time of betrothal, an essential halakhic bond is formed between the man and the woman, rendering the woman forbidden to every other man and rendering both parties forbidden to engage in intercourse with each other's relatives. This bond can be canceled or altered only via the options specified in the Torah, i.e., through a bill of divorce or death. Even these methods do not cancel the bond with her former husband entirely; rather, they allow the woman to marry another man who is not his relative. Nevertheless, the familial bond created by the betrothal, which renders the woman's relatives forbidden to the man and the man's relatives forbidden to the woman, remains in place.

As an act of acquisition, betrothal includes a number of elements that are common to other acts of acquisition. These include the possibility of setting conditions with regard to the amount of money used for betrothal, provided it is sufficient to effect an acquisition; setting conditions with regard to the time when the betrothal will take effect, i.e., immediately or after a specified period of time; and with regard to the possibility of appointing an agent to effect betrothal. A betrothal is canceled in the event of a mistaken transaction, if it becomes clear that that there was deception or a fundamental error with regard to the personalities, status, or living conditions of the couple. This is in contrast to conditions that were agreed upon by both parties from the outset.

The dual nature of the bond of betrothal means that, although it constitutes a bond of acquisition, the ordinary halakhot of acquisition do not apply. Instead there are unique halakhot that do apply. Additionally, the complexity of the bond cannot be defined through the simple terms of buyer and seller, or giver and receiver. Betrothal should be seen as a legal act of acquisition that establishes a relationship that is essentially non-acquisitional; rather, it unifies two individuals as one new entity.

Tractate Kiddushin contains four chapters that explore a variety of topics. While some of these topics are discussed throughout multiple chapters, each chapter has its unique focus:

Chapter One deals primarily with the modes of acquisition through which a woman can be betrothed and released. Tangentially, it discusses the halakhot of acquisition in all areas, the obligations with regard to mitzvot for parents and their children, the differences between men and women with regard to the obligation to perform mitzvot, and the differences between mitzvot that are obligatory only in Eretz Yisrael and those that obligatory even outside of Eretz Yisrael.

Chapter Two discusses the halakhot of agency with regard to betrothal, provides an explanation of items that can and cannot be used to betroth a woman, and discusses the effect of different conditions stated by the couple at the time of the betrothal.

Chapter Three addresses the halakhot of conditions made with regard to betrothal. When a condition is nullified, will it cause the betrothal to be nullified? What is the proper way to phrase such a condition? Additionally, the chapter deals with situations in which there is a mistake or uncertainty concerning the identity of the betrothed parties. The end of the chapter contains general halakhot with regard to the couple: Which unions are permitted, which are forbidden, and the relevant halakhot concerning both types of unions and the children born from such relationships.

Chapter Four deals primarily with the status of those born from permitted and forbidden unions, and it addresses the prohibition against seclusion with a woman other than one's wife.