Shiur 14: Betrothal and Marriage
I. Two Stages
A Jewish wedding is comprised of two stages: The first stage, betrothal, is called kiddushin or eirusin; the second stage, marriage, is called nissu'in or chuppa. The first mishna in Kiddushin teaches us how to carry out the process of halakhic betrothal: “A woman is acquired in three ways… with money, with a deed or with intercourse.” As for the second stage, chuppa, there are major disagreements between the Rishonim how exactly marriage is performed, and we shall deal with this issue below. In any event, it is clear that the marriage ceremony consists of an action that expresses intimacy and entry into another person's domain, e.g., the bride's entry into the home of the bridegroom.
It is the act of kiddushin that changes the personal status of the bride and defines her as a married woman, now forbidden to the rest of the world. And it is the act of nissu’in that puts into effect the mutual obligations of the husband and wife. These stages also have ramifications regarding laws of priestly purity. A priest is generally forbidden to contract ritual impurity through contact with a corpse, but he is commanded to contract impurity through contact with close relatives who have died. If a priest's wife died immediately after her betrothal, the priest is forbidden to come into contact with her; the decisive factor here is marriage, not betrothal.
II. Intent and Consent
Rav Chayyim Brisker formulated a sharp distinction between betrothal and marriage. In order to clarify his position on this issue, let us introduce two concepts developed by Rav Chayyim. In his novellae to the Rambam (Hilkhot Yibbum Ve-chalitza 4:16), Rav Chayyim distinguishes between two types of awareness. In some realms of Halakha, kavana (intent) suffices. Kavana refers to a person's awareness that he is carrying out a halakhic process. Examples of areas in which kavana suffices are chalitza (the ceremony that frees the widow of a childless man from the obligation to marry one of her deceased husband's brothers) and the writing of a bill of divorce. A person performing chalitza must be aware that chalitza is being performed at the time, and a person writing a bill of divorce must be aware that a bill of divorce is being written at the time for the sake of the divorce of a particular woman. In such cases, this knowledge is required only in order to define the process as a halakhic process. If the woman undergoing chalitza happened to be a podiatrist, and she removed her brother-in-law's shoe in order to check his corns, she has not fulfilled the obligation of chaliza, since she did not perform the act with the intent to perform chalitza.
Rav Chayyim refers to the second type of halakhic awareness as da'at (consent). Here we are dealing with a mental process that not only accompanies the halakhic procedure and defines it as such, but also acts as an independent halakhic factor. The clearest examples of realms in which such consent is required are betrothal and divorce. Rav Chayyim proves that there is a difference between kavana and da’at from the allowance regarding “an adult who is standing over a halakhically incompetent person.” A deaf-mute, an imbecile and a minor can perform chalitza if a competent adult is supervising them and making sure that they understand what is happening. But they cannot divorce a woman or betroth her, even if a competent adult is supervising. Rav Chayyim explains the difference as follows: The supervision of a competent adult is a valid substitute for kavana – to make sure that the minor knows what is happening; but it is not enough to create da’at,halakhic consent.
It seems that the difference between kavana and da’at is reflected not only in results and ramifications, but also in the nature of the mental process itself. Intent involves awareness of the nature of the procedure. An adult who is present can explain to the minor that he is now participating in a chalitza ceremony, and this kavana suffices to validate the procedure. In contrast, da’at involves a concentrated desire to bring about the result of a procedure. Even when an adult is present, he cannot create a sufficient level of mental concentration for the minor, and therefore a minor cannot betroth a woman even with adult supervision.
III. The Difference Between Kiddushin and Nissu’in
Rav J. B. Soloveitchik writes in the name of his grandfather, Rav Chayyim, that these concepts – kavana and da’at – help to distinguish between kiddushin and nissu’in as well (Divrei Haggut Ve-ha'arakha, p. 72, no. 4). Betrothal requires consent, where marriage suffices with intent. Rav Chayyim adduced proofs to this assertion from various Talmudic passages.
Rav Soloveitchik added to and deepened this distinction between kiddushin and nissu’in. According to him, betrothal is a formal-halakhic act. As such, it is possible to require focused consent. Marriage, on the other hand, is not a formal-halakhic act by its very essence. Marriage has many ramifications that are of great halakhic importance, but the act of marriage itself is not a formal-halakhic action. While there are many disagreements regarding the specific act that expresses marriage in the clearest way, it is most fundamentally an existential situation, representing the beginning of the couple's life together. There is clearly no room here to require da’at, strong and focused halakhic consent, which is only relevant to formal-halakhic actions. Here kavana suffices, that is, awareness of the fact that the beginning of joint living has halakhic significance.
I heard from my revered teacher, Ha-Rav Aharon Lichtenstein, that there is a fundamental difference between the Orach Chayyim and Yoreh De'a sections of the Shulchan Arukh, on the one hand, and the Even Ha-ezer and Choshen Mishpat sections, on the other. Among other issues, Orach Chayyim deals with blessing, prayers and the holidays, and Yoreh De'a deals with tzitzit, tefillin and forbidden mixtures. Both represent a novel halakhic world, laws conceived and born in the Torah itself. In contrast, Even Ha-ezer, which deals with family law, and Choshen Mishpat, which deals with civil law, represent the way Halakha relates to the world that exists independently of it. Even before the Sinaitic revelation, people joined in marriage and conducted financial transactions. The Torah regulates man's conduct in these realms, but it did not create those realms themselves.
Kiddushin and nissu’in are both, of course, part of Even Ha-ezer, and both relate to the fundamental human reality of interpersonal relationships and marriage. But it is possible to draw a distinction between them on the axis set down by Ha-Rav Lichtenstein. Betrothal is a halakhic state introduced by Halakha. Marriage existed as an institution prior to the giving of the Torah, albeit not precisely in the manner that the Torah prescribes. Halakha merely pointed to a single significant moment at the beginning of this new phase in the life of the couple, and defined it as the moment that generates a halakhic change.
It may be added that from a halakhic perspective, as a result of their marriage, the husband and wife are now defined as family. It is for this reason that it is only after marriage that a priest may defile himself through contact with his deceased wife, and it is only after marriage that a man is disqualified from testifying on behalf of his wife's relatives. Betrothal is a formal legal act, which creates the formal legal relationship that lies at the foundation of the bond between the husband and wife. Marriage is an existential act, in the wake of which Halakha relates to the couple as members of one family.
IV. Ramifications of the Nature of Marriage
1. Chuppa before kiddushin
Rav Soloveitchik articulated an approach that sees marriage as a stage with a completely different nature from that of betrothal. There is, however, a different approach that sees marriage as the second stage of betrothal. According to this approach, marriage has the same essential nature as betrothal – it too expresses a formal halakhic act, only that marriage is the second stage of betrothal, a deepening of the legal relationship between the husband and his wife.
This disagreement finds expression in the question raised by the Mishneh La-melekh (Hilkhot Ishut 10:2): Must betrothal precede marriage, or is it possible to conduct the chuppa before kiddushin? He cites a dispute between the Rishonim on this issue.
It seems that this controversy depends on the question mentioned above. If we view the chuppa as a second step in the betrothal process, it is clear that the chuppa must follow the betrothal, and that prior to the betrothal it carries no meaning. But if the chuppa expresses a completely different process, an existential state that is not a formal legal act, then it may be that the order does not matter, and that the chuppa can precede the betrothal. It is not necessary to say this, as it is possible that even if the chuppa expresses an existential state, it only has meaning against the background of betrothal. In any event, the other side is clear: If the chuppa expresses a second stage of a formal legal process, it cannot possibly precede betrothal.
2. The chuppa of a minor
The Hagahot Mordekhai assumes that the chuppa can precede betrothal. He adds to this that if a minor betrothed a woman and married her, the kiddushin is not valid, but the nissu’in is, and it is not necessary to conduct a second chuppa (Hagahot Mordekhai, Kiddushin, chap. 2, no. 546; see Kehilot Ya’akov, Kiddushin, no. 19). According to him, when the minor reaches adulthood, a second betrothal is necessary, but not a second chuppa. This is a novel idea, for a minor lacks the competencyto give consent. This seems to support Rav Chayyim's position, that marriage does not require da’at, but only kavana, and for this the supervision of a competent adult suffices. This does not work for kiddushin, but it works for nissu’in.
3. The act of chuppa
It is possible that the question regarding the nature of nissu’in – whether it is a continuation of the formal act of taking a wife, or the reality of living together – is also reflected in the different opinions regarding what constitutes the act of the chuppa. The various opinions cited by the Shulchan Arukh and the Rema(Even Ha-ezer 55:1) are as follows:
- bringing the bride into one’s home and secluding himself with her (Shulchan Arukh);
- having relations with the bride for the purpose of marriage (Shulchan Arukh);
- bringing the bride into one’s home, even without seclusion (Rema);
- spreading a cloth over the heads of the bride and groom when reciting the blessings (Rema);
- for a virgin, carrying the bride out on a litter; for a widow, entering into seclusion together (Rema);
- the contemporary chuppa: reciting the blessings of kiddushin and nissu’in under a sheet spread out on poles, after which the couple is led to the house, where they eat together in private (Rema).
We see that there are different approaches as to what constitutes the chuppa. Some of the proposals have a clear existential nature, like the first in the list: “Until he brings her into his house and secludes himself with her and sets her apart for him.” This, in effect, is a description of the beginning of their joint lives together. On the other hand, the first proposal cited by the Rema is much less existential, and much more formal: The bridegroom should bring his bride into his house for the purpose of marriage, even without seclusion. It is possible that this dispute reflects a fundamental disagreement regarding the nature of nissu’in – whether it is characterized by a formal halakhic act or by an existential state that has halakhic ramifications.
(Translated by David Strauss)
 Rav Chayyim connects this distinction to several other halakhic distinctions. Let us bring one example. There are two kinds of witnesses: eidei kiyyum, witnesses who give validity to the action to which they testify; and eidei re'iya, witnesses who merely testify as to what happened. Eidei kiyyum do not merely provide information; they create a halakhic status. Betrothal and divorce require eidei kiyyum. A video does not suffice to tell us that the couple was betrothed; the betrothal has no validity whatsoever if it was performed in the absence of witnesses. According to Rav Chayyim, eidei kiyyum are only necessary in a situation where consent is needed. The witnesses, it seems, serve to reinforce the consent. When a person sees that there are witnesses present, he understands in a fuller and more complete fashion the importance and significance of the process in question. In a situation where only intent is needed, there is no need for eidei kiyyum, but only eidei re'iya. The witnesses in such a case are needed exclusively to provide information.