Kiddushin, Daf Daled, Part 5
Introduction
Today s sugya brings in another source in the Torah for the halakhah that a woman can be betrothed through money. Note again that there is a certain amount of wordplay in these proofs.
Throughout,this passage acquired is frequently used in the sense as acquired as a wife i.e. betrothed, or perhaps occasionally, married.
ותנא מייתי לה מהכא דתניא (דברים כד, א) כי יקח איש אשה ובעלה והיה אם לא תמצא חן בעיניו כי מצא בה וגו’ אין קיחה אלא בכסף וכן הוא אומר (בראשית כג, יג) נתתי כסף השדה קח ממני
But the Tanna brings [proof] from the following. As it was taught: When a man takes a wife, and has intercourse with her, then it shall be, if she does not find favor in his eyes, because he has found (Deuteronomy 24:1). Taking can only mean money, and thus it also says: I will give the money for the field: take it from me (Genesis 23:13).
This tanna proves that betrothal can be performed through money by the verb in Deuteronomy 24 takes. This verb implies the transfer of money, as we see the same verb used in Genesis 23.
והלא דין הוא ומה אמה העבריה שאינה נקנית בביאה נקנית בכסף זו שנקנית בביאה אינו דין שתקנה בכסף
But can this not be proven through logic: if a Hebrew maidservant, who cannot be acquired by intercourse, can be acquired by money; this one [a wife], who may be acquired by intercourse, can surely be acquired by money?
The Talmud now discusses whether we could derive betrothal with money from a logical argument. If we can, then we do not need to learn this from a verse.
The first argument is to prove the case from the Hebrew maidservant. A master may acquire a Hebrew maidservant with money by buying her from her father. But intercourse is not a means of acquisition. Therefore, since intercourse is a means of betrothal (acquisition) of a wife, all the more so money should be as well.
יבמה תוכיח שנקנית בביאה ואינה נקנית בכסף
Let a yevamah prove [the contrary:] she may be acquired by intercourse, yet she is not acquired by money.
The case of the yevamah (the woman awaiting levirate marriage) proves that just because one can be acquired through intercourse does not mean that she can be acquired through money. A woman awaiting levirate marriage is married to her brother-in-law when she has intercourse with him. He does not give her money.
מה ליבמה שכן אין נקנית בשטר תאמר בזו שנקנית בשטר ת"ל כי יקח איש
הא למה לי קרא הא אתיא לה
As for a yevamah, that may be because she cannot be acquired by document: will you say the same of this one [a wife], who can be acquired by document? Therefore Scripture teaches: When a man takes etc.
But why do I need a verse: it has been deduced [through logic]!
The Talmud now rejects the difficulty raised through the case of the yevamah. A yevamah may not be acquired through money because she also cannot be acquired through a document. But a wife, who can be acquired through a document, should, so it is argued also be able to be acquired through money.
The Talmud now cites the proof from Deuteronomy again.
The problem is that according to the flow of the logic we should not need a verse we have a logical argument drawn from the Hebrew maidservant from which we can deduce that a woman can be acquired as a wife through money.
אמר רב אשי משום דאיכא למימר מעיקרא דדינא פירכא מהיכא קא מייתית לה מאמה העבריה מה לאמה העבריה שכן יוצאה בכסף תאמר בזו שאינה יוצאה בכסף ת"ל כי יקח איש
R. Ashi said: Because it would be possible to say, from the outset this was a refutable deduction. From where did you deduce it? From a Hebrew maidservant! As for a Hebrew maidservant, [she can be acquired by money] because she goes out with money: will you say the same of this one [a wife], who does not go out by money? Therefore Scripture says: when a man takes a wife.
R. Ashi says that the deduction from the Hebrew maidservant is refutable. A Hebrew maidservant goes out of slavery with money she buys her freedom. Therefore, she can be acquired with money. In essence, she is property. But a wife cannot buy her way out of marriage giving money to the husband is not a means through which divorce is enacted. Therefore, we might think that just as she does not leave the marriage through money, so too she does not enter the marriage through money. Therefore, we need a verse to teach that she is acquired through money.
ואיצטריך למיכתב ויצאה חנם ואיצטריך למיכתב כי יקח איש דאי כתב רחמנא כי יקח הוה אמינא קידושין דיהב לה בעל דידה הוו כתב רחמנא ויצאה חנם
And it needed to write she goes out for nothing and when a man takes.
For had the Torah written, when a man takes, I would have thought, the kiddushin [money] given to her by the husband is her own: therefore Scripture writes, and she goes out for nothing.
The Talmud now asks why we need two verses to teach that kiddushin can be performed through money. Shouldn t one have been enough?
We need the verse from Exodus, and she goes out for nothing because that verse served as a source for the notion that her father receives the money, at least when she is betrothed as a minor or a na arah.
ואי כתב רחמנא ויצאה חנם הוה אמינא היכא דיהבה (ליה) איהי לדידיה וקידשתו הוו קידושי כתב רחמנא כי יקח ולא כי תקח :
And had Scripture written, and she goes out for nothing, I would have thought, if she [the wife] gives him [the husband] money and betroths him, it is valid kiddushin, therefore Scripture wrote, when a man takes but not, when a woman takes.
The verse from Deuteronomy teaches that for betrothal to occur, the man must give the woman money, not the other way around.
I do realize that this is one of the points that the Talmud emphasizes the patriarchal nature of the system. There is no denying that the system of marriage in the time of the Talmud was not egalitarian. However, it is still interesting to note that the Talmud does not seem to think it is inherently wrong for the woman to acquire the man, that men are not acquirable or any such broader message. We could read this section as saying that betrothal by the man is simply following the literal reading of the verse. I don t know if this offers much solace for those bothered by the patriarchy, but I still think it is interesting to think about.