SHIUR # 7: Chuppa            Based on shiurim by Rav Mordechai Friedman

 The gemara (Kiddushin 5a) relates a dispute regarding the  use of chuppa, standing under the marriage canopy, to effect  marriage.  Rav Huna says that chuppa, although normally used  to create nissuin, can also be used to initiate eirussin. [The  halakhic marriage process entails eirussin (=kiddushin,  betrothal), and only then the final stage of nissuin,  marriage.]  He bases this premise on a kal va-chomer [a  fortiori]: We see that kinyan kesef (monetary acquisition)  can't finalize marriage (i.e. create nissuin), yet, it can  initiate it (i.e. create eirussin).  So chuppa, which we know  can create nissuin, surely can create eirussin.

Rava (5b) refutes this kal va-chomer by pointing out that  chuppa can only finalize marriage after, or in conjunction  with, a previous kiddushin.

When we see this gemara we might feel uncomfortable with  Rav Huna's loose application of the kal va-chomer.   Intuitively, we might feel that it is not valid to compare  dissimilar types of kinyanim, methods of acquisition.  Without  going into a full explanation of such usage of the kal va- chomer, let me point out that in the first few pages of  Kiddushin, the gemara employs this method on numerous  occasions.  (For example the gemara entertains the idea that  through a kal va-chomer we might derive that you can acquire a  shifcha using kinyan bi'a.)

Yet, this intuitive objection seems to be exactly what  Rava is pointing out.  Does he reject the entire system of  applying kal va-chomer to dissimilar kinyanim?

Abbaye answers Rava's objection by slightly changing the  wording of the kal va-chomer, thereby retaining the assumption  that Rav Huna's type of kal va-chomer is valid in principle.

What, in essence, is the true machloket between Rav Huna  (and Abbaye), and Rava?

A better understanding of the nature of chuppa will help  us understand both Rava's and Rav Huna's opinions.

Until now, we have assumed that chuppa is a kinyan,  consisting of a ma'aseh kinyan (acquisitory act) which  triggers or stimulates the gemirut da'at, resolution of  intent, of the man and woman.  In truth, this might not be the  case.  R. Chaim Soloveitchik (Hilkhot Yibbum 4:16) points out  the difference between what he calls "da'at", resolution, and  "kavana", intent.  "Kavana" is the mere consciousness of doing  any particular halakhic act, while "da'at" is a person's  willful decision to effect a "chalot", a change in halakhic  status.  In kinyanim, R. Chaim holds, this "da'at" or "gemirat  da'at" plays the central role of causing the chalot.  It is  the ability to anticipate the abstract concept of a new  halakhic status which differentiates a mature intellect from  that of a child's (katan), and hence, halakhically, a minor  does not have "da'at".

There are, however, many instances in halakha where a  chalot can occur without da'at.  Specifically, there are areas  where once all the halakhic requirements are fulfilled, the  Torah itself, as it were, causes the chalot.  R. Chaim gives  the halakhic status of a sefer Torah as an example.  The  prerequisites are writing with ink, on parchment, and mental  recognition that you are writing a Torah scroll and God's Holy  names.  If those conditions are present, the scroll takes on  the halakhic status of a sefer Torah.  The man's da'at,  willful decision, that there occur a change in status is not  an ingredient in this halakhic equation.  [This example does  not appear in print, but the basic ideas do appear in Rav  Chaim on the Rambam, Hilkhot Tefillin 1:15.]

[A nafka mina (ramification) between these two paths to  establishing a chalot, is the ability to make the change in  status conditional (= tnai).  A scribe cannot write a scroll  and suspend on some condition the chalot shem sefer Torah, or  shem Hashem, the application of the halakhic status of a Torah  scroll to this parchment.]

There are, then, two different paths to a change in  status, one through man's da'at, the other without.  The term  "kinyan", however, refers only to the former.  For example, R.  Chaim claims that the act of chalitza, releasing a childless  widow from the halakhic connection to her brother-in-law, does  not require da'at.  As a result of R. Chaim's above  understanding, he maintains that chalitza is not a "kinyan",  but rather chalot effected by the physical ceremony together  with intention - kavana - to do chalitza.

We now come to a chiddush of R. Chaim on nissuin.  [ This  idea appears in print only in Rav Yosef Dov Soloveitchik  zt"l's hesped for the Brisker Rav entitled 'Ma Dodekh Mi-dod'  in footnote 4.]  Nissuin falls into the same category as  chalitza.  There is no specific trigger of gemirut da'at to  cause the chalot nissuin; rather the very situation of chuppa,  the state of living as man and wife, along with kavana to do  nissuin, causes the chalot.

This, now, casts chuppa in a new light.  We cannot  categorize it as a kinyan, since it doesn't follow the form of  act (ma'aseh)->gemirut da'at->chalot.

This explains the gemara in Yevamot 107a which states  that one cannot stipulate conditions in chuppa ("ein tnai be- chuppa").  Most Rishonim understand this to mean that the  groom, although halakhically capable of making the chalot  contingent to a condition, is assumed to have dissolved this  condition upon consumation of marriage.  According to R. Chaim  the gemara is straightforward.  When the chalot is not a  result of gemirut da'at - a tnai cannot be stipulated.

Additional support for this view of chuppa is brought by  the Kehillat Yaakov (Kiddushin #15.)  In a responsum of Rashi  cited by the Hagahot Mordekhai (Kiddushin Ch. 2, #546), an act  of kiddushin was disqualified due to problems arising with the  witnesses or the value of the ring.  Rashi ruled that although  the kiddushin must be repeated, the chuppa, nissuin need not  be.  He proves the fact that chuppa may precede eirussin with  the following case.  The arranged marriage of an orphaned  ketana (minor) by her mother must be repeated after she is a  gedola (adult) - yet her chuppa need not be repeated.  This  supports R. Chaim's view, because if chuppa were a kinyan,  full da'at of an adult would be required.  The girl, a minor  at the time of chuppa, could only supply kavana, but not  da'at.  It must be that chuppa is not a kinyan, but rather a  process which causes chalot without the need of da'at.

[It would appear that the Arukh Ha-Shulchan sees nissuin  in a similar way, in that he decides (Even Ha-Ezer 55:5) that  chuppa does not require formal witnesses.]

Now that we have established a new definition of nissuin,  namely that it is not a kinyan, but rather an act which  initiates the beginning of married life, we can understand our  gemara.  Rava objects to Rav Huna allowing chuppa to  accomplish eirussin.  For even if we accept the application of  a kal va-chomer on dissimilar or inappropriate kinyanim, if we  accept R. Chaim 's understanding, chuppa is not a kinyan at  all.  Clearly a kal va-chomer from an act which is not a  kinyan at all cannot prove the existence of a kinyan.

How do we, then, deal with Rav Huna?  The simplest  approach would be to assume that Rav Huna rejects R. Chaim's  understanding and holds chuppa to be a full kinyan, needed to  trigger the da'at in order to achieve the chalot nissuin.

It is possible, however, to say that Rav Huna accepts R.  Chaim's idea, and still accepts the use of chuppa as kinyan.

Let us examine the three kinyanim of eirussin that are  mentioned in the mishna: bi'a, shtar, and kesef.

In an upcoming shiur on bi'a it will be shown that bi'a  can be viewed as a qualitatively different type of kinyan than  kesef and shtar.  We can say that bi'a relates more to the  facet of eirussin called ishut (the intimate relationship of  marriage) while kesef refers more to the aspect of kinyan.

Kesef works as a typical kinyan where the act of  transferring money triggers the gemirut da'at.  It is not  unique to eirussin in its nature and its application is  therefore very broad.

Bi'a, on the other hand, is a specialized kinyan for  marriage.  Its actual process relates specifically to the  content of the new status it establishes.  Here, the da'at,  the willful decision to establish the new state, naturally  stems from the ma'aseh kinyan, which is a genuine marriage  situation of bi'a.  We set the stage, the framework, and this  in turn stimulates the gemirut da'at which causes the change  in halakhic status (chalot).

It is therefore possible that Rav Huna understood chuppa  in the same light as R. Chaim (that it is not a kinyan at all)  when applied to nissuin, and yet felt it would work for  eirussin.  In eirussin where a kinyan is needed, chuppa can  function similar to kinyan bi'a.  The gemirut da'at is the  maker of the chalot, and situation of chuppa may stimulate the  gemirut da'at, just as the situation of bi'a does.

[This new application of chuppa to kinyan eirussin,  similar to kinyan bi'a, might depend on a machloket Rishonim  on what the precise process of chuppa actually is.  The mishna  does not give us a description of chuppa, nor does the gemara.   There are two main definitions found in the Rishonim:

1.  Yichud - With nissuin in mind, the bride and groom enter a  room in solitude in a situation that they could potentially do  bi'a.

2.  Hakhnassa le-beito - With nissuin in mind, the groom leads  the bride into his house.

It would appear that this machloket is based on a dispute  on the very essence of chuppa:

It may be focused specifically on the new intimate  relationship of the couple.  Thus yichud would imitate and  initiate this status.

On the other hand, chuppa might be a formal act of  bringing the bride into the groom's household.

It might be easier to see Rav Huna's 'kinyan' chuppa as  parallel to kinyan bi'a according to the view that chuppa is  yichud, where a situation of marriage is created as the  beginning of the chalot.]

In summary, we started with the need to understand the  dispute between Rava and Rav Huna (and Abbaye) regarding the  use of chuppa for eirussin.  We reviewed the inner workings of  the various paths that lead to a chalot, a change in halakhic  status.  We then tried to better our understanding of nissuin,  and distinguished between the use of chuppa for eirussin and  for nissuin.

====================== For Next Week's Shiur:

Amira be-kiddushin - The function of speech in the act of  kiddushin.

Mekorot:

1. Kiddushin 5a "Tanu Rabbanan keitzad be-kessef ...  chayshinan mi-derabbanan ." 2. Rashi 3. Meiri [s.v. Ikkar kiddushei kessef] 4. Tosafot Rid [s.v. Ve'i ba'it eima natan hu ve-amra hi] 5. Ritva [s.v. Natan hu ve-amra hi sfeika] 6. Yad Rama [see Tur siman 27 (daf 49b in the Tur regular  edition; page 242 in the Tur Hashalem)] s.v. Ve-im natan hu  ve-amra hi ... ein asukkim be-oto inyan"]Mishneh La-Melekh  [Hilkhot Ishut 3:2 until "u-lefi ze kasheh de-haTur"]Rambam  Hilkhot Berakhot 1:11 [Kessef Mishneh at the end] 7. Ran [s.v. Tannu Rabbanan (1b in the Rif)] 8. Tosafot cited in the Rashba [s.v. Aval natan hu] and the  opinion of the Rashba [s.v. Ha natan hu]

Our sugya deals with the declaration [amira] of the  husband at the time of kiddushin.  By means of a close reading  of the Rishonim, we will attempt to clarify whether this amira  merely functions as a means of revealing the intentions of the  husband or whether it is an integral part of the act of  kiddushin.

Read Rashi, Meiri, Tosfot Rid and the Ritva and ascertain  their views on the issue.  The opinion of the Yad Rama is open  to a number of interpretations - one of these is found in the  Mishna La-melekh, another may be reached by comparing our  case  to the world of berakhot.  The view of the Rambam is explained  by the Kessef Mishneh.

The Ran only explains his reasoning in the case where the  man gives the money and the woman makes the declaration [natan  hu ve-amra hi].  Try to deduce why the declaration of the man  is important and the different possibilities why the kiddushin  is not effected in the case of natan hu v'amra hi.

Deduce the opinion of the Tosfot found in the Rashba  [this opinion is not found in the Tosfot itself].

Think about the case of natna hi ve-amar hu and the  argument of the Ran and the Behag in this regard.  How does  this shed light on our question: What is the nature of the  declaration of the husband?

Kiddushin 5b "Tannu Rabbanan.  We learnt in a beraita:  How does one betroth a woman with money?  If he gives the money and says to her: "You are hereby married  to me" ... she is married ... If she gives the money and says to him: "I am hereby married  to you" she is not married... If he gives the money and she says to him:" I am hereby  married to you" it is a safek and chayshinan mi-derabbanan."

What is the purpose of the declaration in kiddushin?  [Based on this ,what is the safek in the case of "natan hu ve- amra hi"?]

There are two basic approaches to answer our questions:

1. We need the declaration of the husband in order to evaluate  his intentions and not as an essential part of the kiddushin  process.  When the woman makes the declaration, we are unsure  whether the man has given her the money as a gift or to marry  her. [See Avnei Milu'im 27/18 with regard to the opinion of  the Rif.]

2. It is possible that even if we are entirely sure of the  man's intentions, the kiddushin will not take effect if he  fails to declare "You are hereby married to me."  The safek in  the gemara is whether the declaration of the husband is an  essential part of the kiddushin or merely there in order to  evaluate his intentions.

We will study the Rishonim to ascertain their  opinions.Rashi: [s.v. hachi ka'amar] "... But if he didn't act  in accordance with what we said, for example if he gave [the  money] but she made the declaration."