Kiddushin, Daf Tet, Part 5

 

Introduction

Today s section begins to discuss kiddushin through sexual intercourse. A warning today s Talmud contains adult themes of a sexual nature. If your young children are reading this, you might want to read it first yourself.

 

ובביאה : מנא לן? אמר ר’ אבהו א"ר יוחנן דאמר קרא (דברים כב, כב) בעולת בעל מלמד שנעשה לה בעל על ידי בעילה

Or by intercourse. From where we know this?

R. Abbahu said in the name of R. Yohanan: Because the verse says, And she had had intercourse with her husband, (Deuteronomy 22:22) this teaches that he became her husband through intercourse.

 

The verse from Deuteronomy describes a married woman as one who had intercourse with her husband. To R. Yohanan this proves that intercourse is a means of betrothal.

 

א"ל ר’ זירא לר’ אבהו ואמרי לה ר"ל לרבי יוחנן כעורה זו ששנה רבי (דברים כד, א) ובעלה מלמד שנקנית בביאה

 

R. Zera said to R. Abahu, and others says, Resh Lakish said to R. Yohanan: Is what Rabbi taught so ugly: [When a man takes a wife] and has intercourse with her (Deuteronomy 24:1): this teaches that she is acquired by intercourse?

 

The question is asked why R. Yohanan needed a new midrash when Rabbi [Yehudah Hanasi] had provided what seems to be a perfectly good one using a different verse.

 

אי מהתם הוה אמינא עד דמקדש והדר בעיל קמ"ל

 

If from there, I might have thought: He must first betroth her [by money] and then have intercourse with her, [therefore] he teaches us [otherwise].

 

If we only had the verse from Deuteronomy 24 we might have thought that two stages were necessary. First betrothal, assumedly by money, and then intercourse. After all, the verse uses two verbs take and has intercourse. R. Yohanan s midrash teaches more effectively that intercourse alone is sufficient to create a bond of betrothal.

 

מתקיף לה ר’ אבא בר ממל אם כן נערה המאורסה דאמר רחמנא בסקילה היכי משכחת לה אי דאקדיש והדר בעיל בעולה היא אי דאקדיש ולא בעיל לאו כלום הוא

 

R. Abba b. Mammel raised an objection: If so, with regard to the betrothed girl [who commits adultery] for whom the Torah decrees stoning, how is it possible? If he [first] betrothed and then cohabited with her, she has had intercourse; if he betrothed her but did not have intercourse with her, it is nothing.

 

R. Abba b. Mammel raises a difficulty on the notion that we might think that for betrothal to occur, there needs to acquisition by money and intercourse. According to the Torah, a betrothed virgin who commits adultery is sentenced to death by stoning. But if both betrothal by money and intercourse were necessary for betrothal, then there would be no such thing as a betrothed virgin. She would either be betrothed and not a virgin, or not betrothed at all.

 

אמרוה רבנן קמיה דאביי משכחת לה כגון שבא עליה ארוס שלא כדרכה

 

The Rabbis answered this before Abaye; It is possible if the betrothed man had intercourse with her unnaturally.

 

The rabbis try to answer the objection. It is possible that the betrothal was done through unnatural (anal) intercourse. This, with money, would be enough to betroth her. But then she would still be a virgin such that if she committed adultery, she would be sentenced to death by stoning. In other words, unnatural intercourse counts as intercourse, but leaves her as a virgin (yes, this beginning to sound Clintonesque). While this scenario is completely unlikely, it is not, according to these rabbis, impossible.

 

א"ל אביי עד כאן לא פליגי רבי ורבנן אלא באחר אבל בעל דברי הכל אם בא עליה שלא כדרכה עשאה בעולה

מאי היא דתניא באו עליה י’ אנשים ועדיין היא בתולה כולן בסקילה רבי אומר אומר אני הראשון בסקילה וכולן בחנק

 

Abaye said to them: Even Rabbi [Yehudah Hanasi] and the Rabbis dispute [this matter] only in reference to a stranger: but as for the husband, all agree that if he has unnatural intercourse with her he renders her a non-virgin!

What is this? For it was taught: If ten men had intercourse [unnaturally] with her [a betrothed virgin] and she is still a virgin, all are stoned. Rabbi said: I say the first is stoned, but the rest are strangled.

 

Abaye says that unnatural intercourse with her husband (or fianc e) does cause her to be considered a non-virgin. Therefore, if she has unnatural intercourse as a means of betrothal, she is not considered a virgin. The only dispute was over whether unnatural intercourse with other men renders her a non-virgin.

The dispute in the baraita occurs with regard to a betrothed girl. If ten men have sex with her, all unnaturally, they are all considered to be having adultery with a betrothed virgin and all are executed by stoning. Rabbi disagrees. The first had sex with a virgin, so he is stoned. But the remainder had sex with a non-virgin, so they are strangled, the punishment for adultery with a betrothed non-virgin.

[A reminder these types of discussion are highly theoretical. I would say that what is at stake here is not at all who is executed and how. What is at stake is who is considered a virgin. The rabbis just use this case to define virginity. And even that discussion probably has little ramifications on real life].

 

אמר רב נחמן בר יצחק משכחת לה כגון שקדשה בשטר הואיל וגומר ומוציא גומר ומכניס

 

R. Nahman b. Yitzchak said: It would be possible if he betrothed her by deed: since it completely divorces, it completely brings her into marriage.

 

R. Nahman b. Yitzchak finds a better solution. The case in the Torah could occur if he betrothed her by deed. Such an act does not need to be accompanied by intercourse for it to be an effective means of betrothal.

Just to track where we are in the argument: we have now successfully explained why R. Yohanan needed another verse to prove that betrothal can be done through intercourse. Without that verse we might have thought that betrothal through intercourse can only be done when first preceded by betrothal through money. Now we know that each means of betrothal can be done independently.

ור’ יוחנן האי ובעלה מאי עביד ליה ההוא מיבעי ליה זו נקנית בביאה ואין אמה העבריה נקנית בביאה

 

And R. Yohanan: What does he do with the verse, And has intercourse with her ?

He needs that [to teach]: this one is acquired by intercourse, but not a female slave.

 

R. Yohanan did not use the verse used by Rabbi to prove that intercourse is a means of betrothal. So what does he do with that verse? He uses it to learn that a wife may be betrothed (acquired) through intercourse. But intercourse is not a means to acquire a female slave. The Talmud will now explain why we might have thought that it is.

 

ס"ד אמינא תיתי בק"ו מיבמה ומה יבמה שאין נקנית בכסף נקנית בביאה זו שנקנית בכסף אינו דין שנקנית בביאה

 

For I might have thought, it may be inferred through a kal vehomer from a yevamah: if a yevamah, who cannot be acquired by money, is acquired by intercourse; this one [a Hebrew female slave] who can be acquired by money, may surely be acquired by intercourse.

 

A yevamah, a woman awaiting levirate marriage, is acquired through intercourse when the yavam has relations with her. But she is not acquired through money, as a wife is in regular marriage. So if the yevamah, can be acquired through intercourse, I might have thought that the same is true of the Hebrew slave woman, for she can be acquired even through money.

 

מה ליבמה שכן זקוקה ועומדת

[No.] As for a yevamah, that is because she is already tied!

 

The Talmud pushes back against this argument. I might have thought that a yevamah could be acquired through intercourse because she is already connected to the yavam through her marriage to his now deceased brother. But I would not have thought such a thing about a slave woman who does not have a prior connection to the owner.

ס"ד אמינא הואיל וכתב (שמות כא, י) אם אחרת יקח לו הקישה הכתוב לאחרת מה אחרת מיקניא בביאה אף אמה העבריה מיקניא בביאה קמ"ל

 

I might have thought, since it is written: If he takes another wife (Exodus 21:1): The verse compares her to the other [the wife]: just as the other is acquired by intercourse, so is a Hebrew slave woman acquired by intercourse; therefore we are informed [that she is not].

 

The Talmud now invents another reason we would have thought that a female Hebrew slave could be acquired by intercourse. In the verses about such a slave the owner is described as taking another wife. We might have thought that just as this wife is acquired by intercourse, so is the slave. That is why we learn that she is not.

As an aside, while it is clear that this slave is not acquired by intercourse, we should note that in the verses the distinction between the slave and a wife is not so clear. It seems that he acquires her so that she might someday become his or his son s wife. Such an institution did not exist in rabbinic times. And as I ve said, these discussions are extremely theoretical.

 

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