Kiddushin, Daf Daled, Part 6
Introduction
Today s sugya brings a prooftext for the halakhah that betrothal can be performed through intercourse. The sugya is very similar to yesterday s, so I would advise looking there for reference.
I should note that this is a strange halakhah. According to its literal application, a man would have intercourse with a woman, she would now be betrothed to him and they would not be allowed to again have intercourse until marriage proper, which could be a long time away. There does not seem to be any evidence that betrothal was actually ever performed through in this manner and it is indeed counterintuitive. In my opinion, it is a remnant of an earlier understanding of these three means by which a woman is acquired according to which all three are customary betrothal through money, a marriage document and then physical consummation. But rabbinic tradition reads the mishnah differently each means alone serves to enact betrothal.
ובעלה מלמד שנקנית בביאה
והלא דין הוא ומה יבמה שאין נקנית בכסף נקנית בביאה זו שנקנית בכסף אינו דין שנקנית בביאה
And has intercourse with her (Deuteronomy 24:1): this teaches that she may be acquired by intercourse.
But can this not be proven from logic? If a yevamah, who cannot be acquired by money, is acquired by intercourse; then this one [a wife], who is acquired by money, can surely be acquired by intercourse!
The same verse that proves that a woman can be acquired through money is also invoked to prove that she can be acquired through intercourse.
But again, we could prove that a woman is acquired through intercourse by analogy with the yevamah (the woman awaiting levirate marriage). She is not acquired through money and yet she is acquired through intercourse (levirate marriage is effected by intercourse with the yavam). Thus a wife who is acquired through money should also be acquired through intercourse.
אמה העבריה תוכיח שנקנית בכסף ואין נקנית בביאה
Let a Hebrew maidservant prove [the contrary], for she may be acquired by money, yet she is not acquired by intercourse.
Again, the Hebrew maidservant serves as a difficulty for she can be acquired through money but not through intercourse. The same could be true of a wife.
מה לאמה העבריה שאין קנינה לשום אישות תאמר בזו שקנינה לשום אישות ת"ל ובעלה
ולמה לי קרא הא אתיא לה
As for a Hebrew maidservant, that is because her acquisition is not for the sake of marriage; will you say the same of this one, who is acquired for conjugal purposes?
Therefore it is stated: and has intercourse with her.
But why do I need a verse? It has been deduced!
The Talmud refutes the difficulty. A Hebrew maidservant cannot be acquired through intercourse because she is being acquired as a servant, not as a wife. But a wife could be acquired through intercourse because she is being acquired as a wife.
The Talmud then requotes the verse to prove that she can be acquired through intercourse. But again, we have a difficulty why do I need a verse to prove something that I can deduce from logic?
אמר רב אשי משום דאיכא למימר מעיקרא דדינא פירכא מהיכא קא מייתית לה מיבמה מה ליבמה שכן זקוקה ועומדת תאמר בזו שאין זקוקה ועומדת תלמוד לומר ובעלה :
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 yevamah! As for a yevamah [she is acquired through intercourse] because she is already connected [to the yavam]; can you say [the same] of this one, who is not already connected? Therefore, Scripture says and has intercourse with her.
As he did in yesterday s sugya, R. Ashi explains why the logical argument is not sufficient. The argument that a wife can be betrothed through intercourse had been made by analogy with a yevamah who can also be acquired through intercourse. But the yevamah is already connected to her yavam, the brother-in-law, by virtue of her marriage to her (now dead) husband. She does not really need betrothal all she needs is marriage. But a regular woman getting married is not at all connected to her husband. Therefore, we might have thought that intercourse would not be an effective means to betroth her. Thus we do need a Scriptural verse to prove it.