SHIUR #16: KIDDUSHEI BI'A

                   by: Rav Moshe Taragin

The first mishna in Kiddushin lists the three devices by  which halakhic kiddushin may be effected: kesef, shtar, and  bi'a (money, contract, and sexual relations).  Subsequently,  the gemara (4b) derives kiddushei bi'a from a verse in Ki  Tetzei "Ki yikach ish isha u-va eileha" (when a man acquires a  woman and commences their conjugal activities).  This verse  implies that the process of acquiring a woman may be performed  through the act of marital relations.  Another gemara (9b),  however, offers an alternate source for kiddushei bi'a: a  verse (Devarim 22:22) which forbids a man from intimate  relations with a married woman.  This verse describes a  married woman as a 'be'ulat ba'al' (a woman who already  maintains an intimate relationship with another man).  We will  begin our shiur with a very simple question.  What is the  difference between these two sources?  How might the nature of  kiddushei bi'a vary depending upon which verse it is derived  from?

1. Two Understandings of Bi'a

The first verse appears to be straightforward.  The  process of 'kicha' (halakhic acquisition of a wife) may be  effected by a bi'a performed as the initiation of marriage.   One might have questioned the very applicability of bi'a to  initiate marriage and particularly the acquisitional dimension  of kiddushin.  After all, kesef and shtar each have parallels  in the world of  kinyan, and hence their ability to effect  kiddushin is logical.  Bi'a, seemingly a personal encounter,  would appear to have no relevance to the world of kinyan.   However, based upon this verse we might nonetheless view bi'a  as a process which might engender some form of kinyan.  After  all, we do recognize a kinyan 'chazaka' (possession) which  mandates performing some act which reflects the standard  relationship between the future owner and the object being  acquired.  By building a symbolic fence, for example, the  owner demonstrates the type of behavior which will  characterize his future ownership of a field.  Similarly, one  might reason, by inaugurating the kiddushin through bi'a, the  ba'al has fingered the one act which most accurately depicts  the conjugal nature of their future relationship.  In fact,  the Yerushalmi in the beginning of Kiddushin does establish a  parallel of sorts between kiddushei bi'a and kinyan chazaka.   This would form the relatively simpler version of kiddushei  bi'a - a symbolic act meant to demonstrate ownership and  thereby effect kiddushin.

The second verse, however, is different in that it  describes not an act of acquisition (kicha) effected through  the performance of bi'a (u-va eileha), but instead a state -  she is now 'be'ulat ba'al,' married to another.  This might  indicate a radically different understanding of kiddushei  bi'a.

Usually, within Halakha, a formal act is performed to  initiate an halakhic transformation.  These acts (ma'aseh) are  highly symbolic and are meant, in part, to convey the mutual  will of the parties to establish this halakhic change.  For  example when performing a transfer of ownership on a small  item, an act of hagbaha (the new owner elevating the item)  encapsulates the mutual agreement of the two parties to effect  the exchange.  The act is symbolic rather than essential; the  change is not engendered by what has occurred in the physical  realm as much as what has changed in the abstract.  Even if  the new owner returns the item to the house of the previous  owner - the item is still the new owner's since he has  symbolically acquired possession.  Of course, the degree of  abstraction differs depending upon the act in question.  A  ma'aseh chalipin (handing over a handkerchief) is much more  abstract than pulling an animal into my house (meshikha).   Yet, they all share one common theme - they symbolize a change  which in effect is authored by the parties in question.  The  ma'aseh is merely a device or apparatus to achieve the said  change.

Our first view of bi'a maintained that bi'a, as well as  kesef and shtar, is a ma'aseh kiddushin effecting the  acquisition in an abstract manner through a symbolic act.   Might bi'a be something different?  Might it not merely signal  the start of a relationship but actually forge that VERY  relationship?  Instead of operating in an abstract realm of  symbolism might it establish a visceral and tangible  relationship?  Two individuals who have actually engaged in  relations for the purpose of being married are ipso facto  married.  Bi'a might not be a device intended to symbolize  mutual assent to initiate a relationship, but might instead  actually manufacture the essence of the relationship itself.   It might be a metzi'ut (a self-driven reality) rather than a  ma'aseh kinyan!!!  A woman who has had bi'a of kiddushin is  automatically in the state of be'ulat ba'al - MARRIED

!!!We might corroborate this possibility with an interesting  Rambam.  The history of kiddushin as an halakhic act of  acquisition dates back to matan Torah (the giving of the  Torah).  Before being mandated by the Torah, handing money to  a woman had no real meaning.  The abstract halakhic system per  se had yet to be established and the various symbolic devices  had yet to be implemented.  The Rambam describes the state  before matan Torah as one in which "if a man and woman decided  to marry he would bring her into his house and by engaging in  intimate relations with her she became his wife."  Bi'a, we  see, had meaning as a trigger for marriage even before the  Torah was given because it isn't an abstract manner to  symbolize the start of kiddushin.  Rather, it establishes its  own reality of marriage which society then validates.

2. Ramifications

The nafka minot (ramifications) of this issue might be  significant.  Any symbolic act doesn't independently  accomplish an halakhic transformation but rather catalyzes  that change which ultimately is effected by the will of the  parties.  Hence, we require individuals who are capable of an  halakhic level of da'at, or intent.  A cheresh (deaf-mute),  shoteh, or katan, being mentally unstable or immature, cannot  participate in an halakhic process of change.  The Yerushalmi  in Yevamot (14:1) alludes to the possibility that while a  cheresh is incapable of effecting kiddushin through kesef or  shtar, he might be capable of performing a valid kiddushei  bi'a.  Similarly, Rashi (cited by the Shita Mekubetzet in  Ketuvot 73b) implies the same about a minor.  Does this not  indicate that the rules for kiddushei bi'a are different from  those of a standard kiddushin?  Perhaps this shows us that  bi'a creates its own reality of marriage, and is not just  another symbolic act of acquisition.  Therefore, bi'a is not  totally dependent on the parties intent, and doesn't demand a  mature halakhic author to initiate the change.

A similar distinction might stem from the ability of a  Gentile to execute kiddushei bi'a.  Like a minor, a Gentile is  halakhically incapable of steering an halakhic process of  change.  What about kiddushei bi'a?  Might a Gentile be  capable of creating a marriage through bi'a, being that the  encounter per se creates an objective state of marriage?  The  Ramban (in the beginning of Ki Tetzei) asserts that the only  way to perform a halakhically binding kiddushin with a yefat  to'ar (Gentile captive from a  war) is through kiddushei bi'a.   Similarly, the gemara in Sanhedrin 57b maintains that a  Gentile who commits adultery with a married woman who has  already engaged in bi'a has committed 'gilui arayot' and can  be punished according to halakha.  If the woman has not yet  had bi'a, EVEN IF SHE HAS COMPLETED CHUPPA, no legal  adultery  has been committed.  This gemara confirms that only through  bi'a can a Gentile construct a marriage accepted by halakha.   Obviously, these cases demonstrate the unique nature of bi'a -  bi'a is not your standard kinyan.

3. T'nai and Shlichut

Another discussion which evinces the unique quality of  bi'a is cited in the gemara Ketuvot (74a).  The gemara  suggests that kiddushei bi'a (unlike kiddushei kesef and  kiddushei shtar) must be performed in an absolute manner and  cannot be hinged around a t'nai (condition).  The gemara  reasons that just like one cannot delegate a shaliach (agent)  to perform kiddushei bi'a one may similarly not forge  kiddushei bi'a around a t'nai.  Two questions immediately pose  themselves: Why is kiddushei bi'a different from shtar and  kesef in that no condition may be stipulated and no shaliach  may be delegated?  Furthermore, what common denominator  characterizes these two factors (t'nai and shlichut) that  enables the gemara to base the inability to stipulate a t'nai  upon an inability to name a shaliach?

In truth, each of these halakhot is based upon the  aforementioned principle.  Symbolic acts are merely devices or  tools which are used to establish a halakhic change.   Effectively, the author behind these acts and his counterpart  are orchestrating the change themselves, and only employing  the ma'aseh to trigger the change.  The author retains the  right to delegate the symbolic act to a shaliach.  I may  appoint another to perform the symbolic act of kinyan and  still dictate that the ownership be acquired by myself.  The  ability to delegate shlichut, more than anything else,  highlights the control of the author of the act and the  relatively symbolic (and hence secondary) importance of the  actual performance of that act.  The ultimate change in status  issues not directly from the act but from the will of its  author; as its author I may delegate its performance to  another.  In such cases I may also hinge the change upon an  external stipulation.  Even though the act was performed in  full, I may, as its author, state certain contingencies which  must occur for the change to be valid.

As stated earlier, kiddushei bi'a might be different: the  marriage evolves naturally, as an independent reality of this  intimate encounter.  There is no one person exerting authorial  control; rather each is a PLAYER and a participant in an act  which carves out its own reality.  My lack of control is  evidenced by my inability to appoint a shaliach.  If Reuven  performs bi'a on Shimon's behalf, REUVEN is married to Leah,  NOT Shimon.  I cannot disassociate the resultant marriage from  its original intimate context.  The inability to perform  shlichut underscores the difference between bi'a on the one  hand and kesef and shtar on the other.  Lacking control over  kiddushei bi'a, I am also unable to pitch the resultant  marriage around an external condition.  One who performs  kiddushei bi'a IS MARRIED - PERIOD!!  He cannot stipulate an  external factor which will determine this marriage any more  than a carpenter can make a table conditionally.  Regarding  the actual halakhic ruling, regarding stipulating conditions  for kiddushei bi'a, there appears to be a dispute between two  sugyot.  The gemara in Ketubot concludes that despite the  compelling logic not to allow the stipulation of conditions,  we nevertheless apply a broad comparison between all forms of  kiddushin - "akshinan havayot le-hadadi;" just as one may  stipulate t'nai with a shtar or kesef, one may do the same  with kiddushei bi'a.  The gemara in Yevamot (15a), however,  apparently understands that this ruling is still the subject  of a machloket, or controversy.

4. The Requirements of Kiddushei Bi'a

How might this question affect the actual performance of  kiddushei bi'a?  An interesting difference from other  kiddushin is alluded to by the Tosefta (1:1).  Typically an  act of kiddushin contains two components - one physical and  one verbal.  When awarding the money or delivering the shtar  the husband recites the formula of 'harei at mekudeshet,' 'you  are hereby married.'  As past shiurim have discussed (shiur  #8), the declaration plays more than an explanatory role.  It  actually helps launch the kiddushin.  Would amira be necessary  when performing the act of kiddushin through bi'a?  One might  reason that given bi'a's unique nature in self-starting a  marriage on its own, we would not require any declaration.   Possibly we might demand some designation.  After all, the  parties must clarify their overall intent - Is this indeed  intended as the start of marriage or merely as extra-marital  prostitution (bi'at zenut)?  However, we might not demand the  formal declaration of 'harei at mekudeshet;' this might be  reserved for shtar and kesef in which the person himself  drives the kiddushin and does so through clear-cut intent  expressed verbally.  The Rambam (Ishut 3:5) seems to demand  the identical declaration for kiddushei bi'a as for kiddushei  kesef and shtar.  The Tosefta, however, appears to  discriminate, only claiming that bi'a must be performed "be- torat kiddushin' - with the design of initiating a marriage.

Another manner in which the unique nature of kiddushei  bi'a might affect its performance is addressed by the gemara  in Kiddushin (10a).  The gemara questions whether performing  kiddushei bi'a creates a state of kiddushin (betrothal, after  which nissu'in is necessary to 'consummate the marriage') or  immediately creates a state of nissu'in.  On the surface, this  possibility seems preposterous!!  The parties clearly intended  the preliminary state of kiddushin, and not full-blown  marriage!!  Why should the ensuing state of nissu'in, normally  one which requires a separate process, evolve automatically?

If, as stated before, kiddushei bi'a differs from other  forms of kiddushin in that it establishes an objective reality  of marriage, it might be more difficult to schedule the  different stages of this marriage  and to stunt them.  Kesef  and shtar are symbolic acts which do not necessarily reflect  the ultimate and complete stages of marriage.  Driven by their  authors, they can be geared toward establishing a preliminary  stage which can form the foundation of a more complete  relationship to be constructed at nissu'in.  Bi'a, however,  reflects a real marriage and possibly one cannot help but  reach the full stage of nissu'in after bi'a has been  performed.  This argument is especially compelling if we view  nissu'in as embodying the actual marriage, as opposed to  kiddushin which expresses the abstract formal relationship.   (See shiur #7.)

For further research:

1.  The gemara (10a) debates whether bi'a acquires at the  beginning of the act or only upon its completion.  In light of  the above analysis, how can this be explained.  See Tosafot  s.v. Kol, Ritva s.v. Ibai. 2.  The gemara (4b) attempts to derive kiddushei bi'a from  yibbum.  How can yibbum be a paradigm for kiddushin?  After  all, yibbum takes effect despite lack of da'at, and is  therefore clearly not similar to kiddushin which requires  da'at.

Co-ordinator's Note:

With this shiur on kiddushei bi'a we have completed the  first section of the first chapter of Kiddushin, which deals  primarily with the ma'aseh kiddushin and the definition of  kesef kiddushin.  Upon analyzing kiddushei kesef, shtar and  bi'a, it is worth noting that each type of kiddushin may be  working in its own special way.  While kesef may relate to  whatever aspect of acquisition there is in kiddushin (see  shiur #2), kiddushei shtar may focus on the prohibition  inherent in kiddushin (see shiur #15).  Kiddushei bi'a, on the  other hand, may initiate the interpersonal relationship as  expressed in this shiur.  Kiddushin is, therefore, a compound  comprised of multiple factors.  Each of the three types of  kiddushin relates to a separate factor which subsequently  evolves into the complex and complete whole.  Each begins from  a different angle but reaches the same end result.  This  analysis was developed by Rav Y. Z. Gustman zt"l (see  Kuntresei Shiurim, pp. 5-22). 

FROM NEXT WEEK, THE VBM WILL BEGIN THE THIRD  CHAPTER OF  KIDDUSHIN.  We feel that the sugyot dealt with in the third  chapter can help further our understanding of the major issues  in the masekhet.  If you were intending to continue on in the  first chapter, we apologize for the inconvenience, and hope  you nonetheless continue on with us.  The switch may also  offer an opportunity for those who are interested but not yet  connected, to begin a new chapter from the beginning.                        Rav Yair Kahn                        co-ordinator of the VBM Kiddushin shiur

Sources for next week's shiur: -----------------------------

I. Kiddushin 59a "Rav Gidal" until "ara d'rabanan;" Tosafot s.v. Ani; Ritva s.v. Ha de-amrinan ani

II. Bava Batra 21b.  Tosafot s.v. Marchikin;  Bava Batra 54b "Amar Rav Yehuda" until "zakha." Rashbam ad loc.

Questions: I. What is the nature of the halakha of "ani ha-mehapekh ba- charara?"  Is it essentially an ethical law or does it have  legal moorings?  If someone has transgressed this law, how can  he atone for it?  Does he have to return the object in  question?

II. To which areas does this law apply?  Could this issue be  related to the original question?