Thursday, July 22, 2010

The Wedding... Part 3

Part 1 set the stage for the series, and Part 2 was an overview of Jewish marriage (kiddushin and nisuin); I recommend reading those first. This post zooms in on kiddushin bishtar, one of the three methods of effecting kiddushin, and the one that we used.

Once again, a sh'tar kiddushin is not the same as a ketubah, either in form or in content. A sh'tar kiddushin is written in the first and second person, written by the mekadesh/et to the mekudash/mekudeshet. A ketubah is written in the third person, "written by" the witnesses. We used a ketubah in addition to our sh'tarot kiddushin, and the ketubah will be discussed in Part 4.

What?

The active ingredient in the sh'tar is "You are hereby consecrated to me", or any of the other formulations that effect kiddushin. The mekadesh/et writes the sh'tar, and gives it to the mekudash/mekudeshet in the presence of two witnesses.

Unlike the other two methods of kiddushin, kiddushin shtar requires no words to be spoken, since it's there in writing already. We said "הרי את\ה מקודש\ת לי בשטר זה כדת משה וישראל" when we gave each other our sh'tarot, but this was cosmetic (both for the benefit of the assembled crowd, and to focus our intentions) and not a legal requirement. A couple who wanted to do the legal mechanism of kiddushin without the outward appearance of kiddushin (the opposite of what is typical, I know, but I know of examples of this too) could use sh'tarot, and either say nothing at all or say something else (e.g. biblical verses).

Why?

The primary advantage of kiddushin bishtar, as we saw it, was the ability to do kiddushin in a way that does not resemble acquisition. Yes, both kesef and sh'tar appear throughout the rest of Mishnah Kiddushin chapter 1 as means of acquiring property, but there are key differences. First of all, money is used for acquiring property and nothing else (aside from, arguably, kiddushin), whereas documents are used to do many different things, of which acquisition is just one, so documents don't have the same strong association with acquisition that money does.

An even stronger difference between kesef and sh'tar is found in the Gemara (Kiddushin 9a). The parallel between kiddushin b'chesef and acquisition is clear: the mekadesh/et hands over money (or an object of monetary value) in the same way that a buyer hands over money. But R. Zeira bar Memel points out that a sh'tar kiddushin is not parallel to a sh'tar of sale:
מתקיף לה ר' זירא בר ממל: הא לא דמי האי שטרא לשטר זביני. התם, מוכר כותב לו "שדי מכורה לך"; הכא, בעל כותב "בתך מקודשת לי" י
A document of sale is given by the seller to the buyer. It's basically a receipt, or a deed, stating that the property now belongs to the buyer. So a mekadesh/et, who writes and hands over (rather than receives) a sh'tar, does not resemble a buyer.

Thus, while the Talmud draws many parallels between kiddushin b'chesef and acquisition b'chesef in deriving the relevant laws, it explicitly rejects any parallel between kiddushin bishtar and acquisition bishtar. Instead, the laws of kiddushin bishtar are derived from another source. Kiddushin 5a says:

אמר קרא "ויצאה ... והיתה ..." מקיש הויה ליציאה: מה יציאה בשטר, אף הויה נמי בשטר

In the same way that kiddushin is terminated with a document (which we know from the Torah, Deuteronomy 24), it can also be enacted with a document. (As a side note, this means that kiddushin bishtar is actually on firmer ground than kiddushin b'chesef. The laws of marriage (the normal kind, not the levirate kind) are not laid out explicitly anywhere in the Torah, whereas the procedure of divorce, which is with a document, does appear in the Torah. Based on this, the Rambam (Hilchot Ishut 1:2) says that kiddushin bishtar is from the Torah, while kiddushin b'chesef is rabbinic.)

And thus the Talmud proceeds to derive various laws of kiddushin bishtar from the laws of gittin, so a sh'tar kiddushin is essentially a get in reverse. This may not be the happiest or most romantic way to think about marriage, but it's also not objectionable in principle. Framing marriage as the opposite of divorce fits our values much more than framing marriage as acquisition.

A secondary benefit to kiddushin bishtar is that we did kiddushin with conditions (as discussed below). This can be (and is) done with kiddushin b'chesef too, and the conditions are written into a separate document signed beforehand, and/or spoken at the time of kiddushin. But with kiddushin bishtar, the conditions can be written directly into the sh'tar. This both makes the ceremony less complicated and emphasizes the nonseverability of the conditions.

How?

The halachic sources (from the Gemara forward) have very little to say about kiddushin bishtar, probably because this method of kiddushin has not been commonly used for centuries. And the questions they do discuss aren't exactly the top questions we might come up with: what the sh'tar can be written on (answer: anything, and the paper or whatever need not be worth a perutah, though that's not quite the end of the story), whether the sh'tar must be written for the specific recipient (answer: yes), and whether the sh'tar requires the recipient's knowledge and consent at the time it is written (yes again). The classical and medieval sources don't provide any guidance on little things like, oh, WHAT THE SH'TAR SAYS, beyond the one active clause. (Perhaps sh'tarot kiddushin were originally one sentence long.) The Shulchan Aruch (Even Ha'Ezer 32:4) adds that "there are those who say" that a sh'tar kiddushin should include both parties' names, like a get. But that's it.

When the four of us decided to use kiddushin bishtar for our respective weddings, we initially thought that we were going to be the first two couples to do this in the modern period, but we soon found out that we're at least the second and third: AG and YK had done it before us. Their ceremony was somewhat different from ours: their wedding was in Israel and rabbanut-approved, and did not include bilateral kiddushin as ours did, but the ceremony as a whole was bilateral. She gave him a sh'tar tenaim (document of conditions), and he gave her a sh'tar kiddushin stating that the kiddushin was contingent on those conditions, so both sh'tarot were necessary to effect the kiddushin. Pursuant to the discussion above in the Gemara, their sh'tar kiddushin was modeled on a get in reverse.

As discussed in Part 2, we did two separate acts of kiddushin, which means that we used two different sh'tarot, each written by one of us to the other. The texts of the two sh'tarot were identical to each other, except that the names were reversed and the grammatical genders were adjusted. Based in part on AG and YK's text, the texts of our sh'tarot incorporated the following elements from the text of a get:
  • The date
  • The location
  • The names of both parties (as mentioned above in the Shulchan Aruch)
  • A statement that we were acting of our own free will and without coercion
  • The active clause, "הרי את\ה מקודש\ת לי בשטר זה כדת משה וישראל" ("You are hereby consecrated to me with this document according to the laws of Moses and Israel"), which is the clause that effects kiddushin, but is also the reverse of the active clause of the get, "הרי את\ה מותר\ת לכל אדם" ("You are hereby permitted to any person").
  • Signatures of two witnesses, to testify that they saw us write the sh'tar and that we really did intend to marry the person named in it. (Each sh'tar had a separate pair of witnesses, who were not the same as the witnesses to the kiddushin itself, who witnessed us giving each other the sh'tarot under the chuppah.)
In addition, the sh'tarot included conditions, discussed below.

Modeled after the get, we handwrote our sh'tarot. This may or may not have been necessary. We wrote some of the text (including the conditions) beforehand, but saved a few pieces to write on the wedding day, at the public bedeken, with our witnesses watching: the date, the names, and "Harei at/ah...". Again, it's not clear which (if any) of these pieces had to be written at that time.

Some have suggested that this procedure would be difficult for many couples to replicate, since not everyone is sufficiently literate in Hebrew. But not everyone has to do it the way we did. First of all, at least some of the sh'tar (e.g. the parts that we wrote ahead of time, rather than on the day of) could probably be printed from a computer, like most legal documents. Second of all, whichever parts are written by hand are still totally kosher if written by a shaliach (agent) on behalf of the mekadesh/et (this is standard practice for gittin, which are not generally written by the actual parties), so the writing could be done by the mesader/et (officiant). Third of all, there's no requirement that the sh'tar has to be in Hebrew.

Kiddushin with conditions

There is longstanding precedent, going back to the Mishnah, for doing kiddushin with conditions. The conditions can be stated at the time of kiddushin ("You are hereby consecrated to me on the condition that ____"), or (as is more common now, to avoid having to say a mouthful under the chuppah) can be written in a separate document which is signed beforehand. As noted above, we wrote the conditions directly into our sh'tarot. The conditions may be about something that is or is not true at the present time (e.g. "on the condition that I am a kohein", Mishnah Kiddushin 2:3), in which case the kiddushin goes into effect if and only if the predicate is true, or the conditions may be about something that may or may not be true in the future (e.g. "on the condition that I give you 200 zuz in the next 30 days", Mishnah Kiddushin 3:2), in which case the kiddushin goes into effect in the future, at the time the condition is satisfied.

Our sh'tarot included two conditions: "on the condition that you accept this document of your own free will and without coercion" and "on the condition that you consecrate or consecrated me to you and that your kiddushin remain in effect".

The first condition emphasizes that the active participation of both partners is necessary for each act of kiddushin to go into effect; neither participant is passive.

The second condition ensures that the two acts of kiddushin are dependent on each other. Each kiddushin goes into effect only if the other one does. The use of both future and past tense means that the two sh'tarot can have identical texts and can be given in any order; there is no significance to the order. I honestly don't remember which order we gave them in. (EAKO and BZK did something very slightly different: they decided ahead of time what order the sh'tarot would be given in, and hard-coded this order into the sh'tarot, so that each one had either future or past tense but not both. But again, there was no significance to the order.) Thus we gave each other sh'tarot sequentially, but the two acts of kiddushin went into effect simultaneously, only after both sh'tarot had been given.

The mutual dependence also means that if someone thinks that one of the kiddushins is not valid (for whatever reason), then they must also hold that the other kiddushin is not valid. This is a feature, not a bug, since it means that, at least in theory, no one should require non-egalitarian divorce proceedings, since anyone who would require this probably also holds that one (and therefore both) of the kiddushins was not valid in the first place. I know in practice it's not so simple, and this will be discussed further in Part 5.

The dependence on the other kiddushin remaining in effect means that a single get (given by either party to the other, to terminate either kiddushin) terminates both kiddushins. These issues will also be explored more fully in Part 5.

***

Coming soon:
Part 4: ketubah
Part 5: divorce

16 comments:

  1. Do you have any idea when and why bishtar ceased being used, (or could it have always been a hardly used theoretical kiddushin model like biah)? In the height of bishtar's popularity, is there any evidence and/or speculation as to its prevalence relative to kiddushin b'chesef?

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  2. Great questions! Any historians out there who can anwer these? I suspect that the height of its popularity was a LONG time ago, given that the Gemara devotes so little space to it, and even the Mishnah seems to assume kesef in most of its examples.

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  3. I think the evolution of kiddushin b'kessef by the time of the Mishnah had already accomplished a lot of what you are seeking in kiddushin b'shtar. There was a book by a Jewish historian written in the 1930's in German that has since been translated to Hebrew and published by Magnes Press that makes this point (I only skimmed the book). If kiddushin can be effected by only a perutah, then something other than a purchase is happening: Whatever a wife is "worth" it's a lot more than a perutah. It would be hard to distinguish kiddushin b'shtar from kiddushin b'kessef since the paper of the shtar itself would be worth a perutah too.

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  4. David writes:
    If kiddushin can be effected by only a perutah, then something other than a purchase is happening: Whatever a wife is "worth" it's a lot more than a perutah.

    So I wonder if couples who want to emphasize this aspect should be doing kiddushin b'chesef with objects that are truly of minimal value, rather than expensive rings.

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  5. Great series. I'm looking forward to parts 4 and 5.

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  6. So I wonder if couples who want to emphasize this aspect should be doing kiddushin b'chesef with objects that are truly of minimal value, rather than expensive rings.

    Hmmm. The value of a gold wedding ring is something like $50-$100. Not cheap, certainly, but compared to the cost of anything else at the wedding, not really material.

    As you know, the minimal value of kiddushin money was considered to be a dinar by Beit Shammai, as opposed to the perutah of Beit Hillel. The mishnah (I think in `Eduyot, don't take my word for it) considers this an unusual kula of Beit Shammai and chumra of Beit Hillel.

    FWIW, if we estimate a day's wages in the times of the Mishna to be about a dinar, and compare it to 8 hours of (gross) minimum wage nowadays, a wedding ring costs about a dinar of work.

    Regarding kiddushin with a shtar, I can guess a number of reasons it never really took off. This is all speculation:

    - Requires literacy or payment to a scribe

    - Nothing shiny to show for it afterwards (relevant once rings entered the fashion)

    - Harder to undo inadvertent mistakes. With an object of value, if the groom says something like "Eunice, I betroth you with this set of encyclopedias," and the bride says, "My name is Mabel," then we can just get Mabel to give the encyclopedias to the groom as a gift, and he can try again. With a shtar, it would have to be rewritten! A huge headache.

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  7. Hey, don't slander us! The wedding was most certainly not rabbanut approved! (all the rest is right).

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  8. Oops! I corrected it. And DafKesher, I didn't realize who you were!

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  9. You didn't? Really? Well, it is. (Sorry).
    (And - this is really why I'm leaving the comment - I had so much fun reading this, I reread it about five times!)

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  10. Also, I think people use rings because gold has a fixed price which can be assessed easily, unlike most other things. (A lollypop has one price at a bodega, and another at costco)

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  11. Daf Kesher, true in theory, but any gold ring (really, anything gold that people use) can't be pure gold. It has to be an alloy or mixture or something. Pure gold can (from what I read!) be mushed around in your hands.

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  12. I think I understood the historical significance of Kiddushin al Tnai to be largely circumstantial. Stating that Kiddushin is binding provided that you (usually the husband) does not get killed in the battle you are heading out to now after our nuptials go in to effect - attempting to prevent newlywed agunah status???

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  13. How did you ensure fulfilment of "on the condition that you accept this document of your own free will and without coercion"? If mekudash/mekudeshet did not say anything to the effect, did you do anything that unambiguously and symbolically entails acceptance of your spouse's document?

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  14. BZ, I love this series and can't wait for part 4 and 5! Thank you so much for writing it. I hope to get married by shtar as well. Might I see the text of your shtar sometime?

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  15. JoannaShmoanna-
    Mazal tov! Check your email.

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  16. DL writes:
    How did you ensure fulfilment of "on the condition that you accept this document of your own free will and without coercion"? If mekudash/mekudeshet did not say anything to the effect, did you do anything that unambiguously and symbolically entails acceptance of your spouse's document?

    Before each shtar was handed over, the mekudash/mekudeshet made a verbal statement of intent, which I think achieved this.

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