Siman 26

The Rambam wrote in the first chapter of Ishut: Before the giving of the Torah, a man would encounter a woman in the marketplace; if he and she desired that he marry her, he would bring her into his house and cohabit with her privately, and she would become his wife. Once the Torah was given, Israel were commanded that if a man desires to marry a woman, he must first acquire her in the presence of witnesses, and afterwards she shall be his wife, as it is said, "If a man takes a woman and comes unto her" (Deuteronomy 22:13). And these takings are a positive commandment of the Torah, and a woman is acquired by one of three things – by money, or by document, or by cohabitation, etc. And these takings are what are called kiddushin or erusin everywhere. And a woman who is acquired by one of these three things is what is called mekudeshet or me'oreset. And once the woman is acquired and becomes mekudeshet, even though she has not had cohabitation and has not entered her husband's house – she is a married woman, and one who cohabits with her other than her husband is liable to death by beit din, and if he wishes to divorce, she requires a get. Thus far his words.

The explanation of his words: In matters of marriage in the Torah, "taking" is written prior to "coming upon," as it is written, "If a man takes a wife and comes upon her and hates her" (Deuteronomy 22:13), which implies that she becomes his wife even prior to the act of coming upon her. It is likewise written, "If a man takes a wife and marries her" (Deuteronomy 24:1). It is also explicit in the Torah that erusin and nissuin are two distinct things, as it is written in Parshat Shoftim, "And who is the man who has betrothed a wife and has not taken her" etc. (Deuteronomy 20:7). This "taking" is like a kinyan, whereby he acquires her for marriage before two valid witnesses. Therefore, regarding arayot, we do not find the language of "taking," only the language of "lying." However, regarding those subject to negative prohibitions, such as the prohibitions of the priesthood, the language of "taking" is written, because kiddushin is not effective for those liable for karet, but for those subject to negative prohibitions it is effective. As for the fact that regarding four of the arayot the language of "taking" is written—concerning his wife's sister, his mother-in-law, his sister, and his brother's wife—all of them come for the purpose of an exposition: regarding his wife's sister and his mother-in-law—to teach us that they are not forbidden to him unless he took the first one with kiddushin, and not when he came upon them without kiddushin [Yevamot 97a]; regarding his sister—to teach us concerning Cain, who was permitted to marry his sister [Rashi, Sanhedrin 58b]; and regarding his brother's wife—to indicate that it deals with his paternal brother, who is sometimes permitted when he dies without children [Torat Kohanim]. However, regarding the children of Noah, we do not find the matter of kiddushin at all, as it is written regarding Abimelech, "and she is a man's wife," and our sages, of blessed memory, expounded [Sanhedrin 24b]: "a man's wife"—they have; "entered the huppah but was not known carnally"—they do not have; and certainly they do not have kiddushin. Until the giving of the Torah, we do not find regarding marriage that it writes "taking" and "coming upon" as one. Similarly, Jacob our forefather said to Laban, "Give me my wife, for my days are fulfilled, that I may go in unto her" (Genesis 29:21); it is explained that his acquisition was through the act of coming upon her. Thus said our sages, of blessed memory [Bereishit Rabbah 18]: Children of Noah are liable for married women and exempt for betrothed women, as it is written, "and shall cleave to his wife"—from the time he conducts himself with her in the manner of marriage [Rashi]. [And it is brought there that even if he came upon her in a state of zenut and did not intend for marriage—her status is that of a man's wife; however, it does not imply such in the Gemara there, "a son of Noah who designated" etc., see there].

Therefore, a woman is not considered a married woman except through kiddushin by which she was properly betrothed; but if he had relations with her in a way of promiscuity not for the sake of kiddushin – it is nothing. And some say that he is lashed because of the negative commandment of "There shall not be a kedeshah" (Deuteronomy 23:18), and she is the zonah mentioned in the Torah [Tur]. However, most of the poskim hold that this only applies to one who is prepared for promiscuity with anyone who desires. And we have already clarified at the beginning of siman 4 that the opinion of the Rambam is also thus, that in an incidental case she is not called a kedeshah, for if it were not so, you would not find a fine for one who rapes or seduces, as a person is not lashed and also pays. The Rambam himself wrote likewise in the second chapter of Na'arah Betulah and in the Sefer HaMitzvot [Negative Commandment 355]. Rather, he violates a positive commandment that a person is not permitted to be with a woman without kiddushin [Rivash siman 425], and some say that it is only miderabbanan [Chelkat Mechokek] – and the main point is as I have written. And it is a simple matter that if she is of age such that she has a menstrual cycle – he who has relations with her is liable for karet, and she is an ervah like all the arayot, for she has seen niddah and has not immersed, as it is written: "And if a man shall lie with a woman having her sickness... both of them shall be cut off" (Leviticus 20:18). And there is no difference in the prohibition of niddah between an unmarried woman and a married woman, and this has already been explained in Yoreh Deah siman 183.

If one has relations with a woman in an act of zenut—it is nothing to require her a get, even if he had relations with her in the presence of witnesses. And that which the Sages, of blessed memory, said in every place, "A person does not intend his act of relations to be an act of zenut"—this refers to his wife whom he divorced, or to one who betrothes with a condition and then has relations, for she is his wife, and it is regarding his wife that they said a person does not intend his act of relations to be an act of zenut unless he specifies; but with other women, anyone who has relations is presumed to be for the sake of zenut unless he specifies that it is for the sake of kiddushin. Some of the Geonim ruled that any woman who has relations in the presence of witnesses requires a get, and the Rambam rejected their words in chapter 10 of Gerushin, law 19, see there. And it was taught in the Tosefta at the beginning of Kiddushin: Any act of relations that is for the sake of kiddushin—she is betrothed, and that which is not for the sake of kiddushin—she is not betrothed, and it implies that we require it to be explicitly for the sake of kiddushin.

Even if he cohabited with a woman for the purpose of marriage privately between them—she is not considered his wife unless they sequester themselves before witnesses, and he invites witnesses to the outer room and says before them, "Behold, I am sequestering myself with this woman for the purpose of kiddushin," and they enter the room and he cohabits with her, and it is kiddushin through cohabitation. And there is one who says that whenever he marries her and it is revealed to all, it is as if there were witnesses at the time of cohabitation, as written in siman 149—but it is not so, for there they only spoke regarding one who divorces his wife and returns and cohabits with her, and not regarding a woman who was not his wife [Beit Meir], and this is merely zenut, even if he designates her to himself permanently, for this is a pilegesh according to the opinion of the Rambam who forbids it, as will be explained with the help of Heaven [see Be'er Sheva] [and see Tosafot Yevamot 45b s.v. Mi etc., and some explain that since it is known to all that she immersed, it is as if they are standing there etc. Thus far his words].

The Rambam, of blessed memory, wrote in chapter 4 of Laws of Kings that only a king is permitted to take a pilegesh and not a commoner, unless she is a Hebrew maidservant after yiyud, see there. And there are those of our teachers who disagree with him, for behold, we find in Tanakh several who had pilegshim and were commoners; however, this is not a proof, for it is possible they were Hebrew maidservants after yiyud [the Gra]. However, in the Shas this is not found—that it would be forbidden for a commoner to have a pilegesh—and the reasoning of the Rambam will be explained before us with the help of Heaven.

What is a pilegesh? The Rambam, of blessed memory, wrote there that he takes her without kiddushin and without a ketubah, and she is merely designated for him; and such is the version before us in the Gemara [Sanhedrin 21a]. And there are some of our teachers who hold that they only lack a ketubah, but they do have kiddushin [Rashi in Parshat Chayei Sarah]. And so it is explicitly stated in the Yerushalmi, chapter 5 of Ketubot [Halacha 2], where one says they have no ketubah and one says they have a ketubah but do not have the conditions of the ketubah, and it implies clearly that they do have kiddushin. However, it is obvious that according to all opinions, a pilegesh does not have the conditions of the ketubah as a man has with his wife—that he would be obligated in her sustenance, her clothing, and her conjugal rights like his full wife. Likewise, the husband does not consume her usufruct, does not inherit from her, and is not obligated in her ransom. There is clear proof for this, for behold, we find even before the giving of the Torah that they had pilegshim, as it is written: "But to the sons of the pilegshim whom Abraham had" etc. (Genesis 25:6), and also Nachor had a pilegesh, as it is written: "And his pilegesh, whose name was Reumah" etc. (Genesis 22:24). And before the giving of the Torah there was no kiddushin at all, as I have written; rather, certainly no obligation from a man toward his wife applied to a pilegesh. According to this, the reasoning of the Rambam who forbids a pilegesh is explained: since the Torah decreed that a man should not take a woman without kiddushin, it follows that a pilegesh, which according to his view is without kiddushin, violates a positive commandment. And even according to the view of Rashi that she has kiddushin, nevertheless, since she does not have any of the conditions of the ketubah, and in the entire Shas it is simple that what a woman acquires her husband acquires, and every woman has all the conditions of the ketubah, and it is not mentioned in a single place to establish a case regarding a pilegesh—hear from this that a pilegesh is forbidden [and so it appears from Bava Batra 49a, 51a, which asks "it is obvious," and let it be established regarding a pilegesh; see there and examine closely].

However, regarding that which the Rambam compares the designation of a Hebrew maidservant to a pilegesh—it requires investigation as to what the relationship is between them. For a Hebrew maidservant, he designates her with her purchase money and says to her, "Behold, you are betrothed to me," as the Rambam wrote in the fourth chapter of Laws of Servants, and he also becomes obligated to her in all the obligations of a husband to his wife, as it is written: "her food, her clothing, and her conjugal rights he shall not diminish" (Exodus 21:10), and behold, she is like a complete wife. And it appears to me that the Rambam, of blessed memory, holds that this which is written regarding a Hebrew maidservant, "And if he designates her for his son, he shall deal with her according to the manner of daughters" (ibid. 9), this "manner" is not her food, clothing, and conjugal rights, but rather the manner of Hebrew daughters who are sold and the master designates her for marriage and she becomes to him like a pilegesh, so too shall the son do for her. And afterwards it is written, "If he takes another for himself, her food, her clothing, and her conjugal rights he shall not diminish"—for the other one; that is to say, when he marries a daughter of Israel as a wife not by way of servitude, he becomes obligated to her in her food, etc., but not to the maidservant whom he designates. And this is what is written, "And if these three he does not do for her"—meaning: designation for himself, designation for his son, and the deduction of money; and thus the Rambam explained this verse there. Therefore, the Rambam did not mention there the law of food, clothing, and conjugal rights because in truth she does not have them. And in the Mekhilta on Mishpatim there is a dispute of Tannaim regarding this, Rabbi Yoshiyah and Rabbi Yonatan, for one says that "the manner of daughters" is food, etc., and one says that it is according to the manner of Hebrew daughters who are sold, and food, etc., is only for a daughter of Israel who is betrothed not by way of servitude. According to this, the Rambam, of blessed memory, correctly compares designation to a pilegesh, for she too has none of the obligations of a husband to his wife; and even though he betroths her at the time of designation, nevertheless, since he does not give her anything now at the time of designation, this is not similar to all other betrothals. [See the explanation of the Gra on the Pentateuch there; and according to what I have written, several nuances in the sugya in Kiddushin 18b are settled, where it says the practical difference is to inherit from her and it does not say for her food, clothing, and conjugal rights, and afterwards when it establishes it regarding general betrothal it says "since her father handed her over to one who became obligated in her food etc.," which implies that in designation he does not become obligated in this; see there and examine carefully].

Even not according to the opinion of the Rambam, and we were to say that there is no Torah prohibition regarding a pilegesh—nevertheless, it is forbidden to keep a pilegesh, as the Tur wrote in the name of the Rosh regarding an unmarried woman serving in the house of Reuven where a persistent rumor emerged that he sequesters himself with her; it is not only that the members of her family can protest against him, as it is a blemish for them that she should be his pilegesh, but even the beit din compels him to remove her from his house, for it is a known matter that she is ashamed to immerse, and it turns out that he cohabits with a niddah. Thus far his words. And all the more so according to the system of Rashi, for a pilegesh is specifically with kiddushin, and it is a complete prohibition to sequester oneself without kiddushin. [And the Gra agreed with Rashi in subsection 7, and for the Rambam there is a way to reconcile, see there and examine closely].

Our teacher, the Rema, wrote that if one designates a woman for himself and she immerses for him—some say it is permitted and she is the pilegesh mentioned in the Torah, and some say it is forbidden and one receives lashes for this because of "There shall not be a kedeshah" (Deuteronomy 23:18). Thus far his words. The great later authorities took issue with him, for even according to the opinion of the Rambam who forbids a pilegesh, this is not a matter for lashes, as "There shall not be a kedeshah" regarding lashes refers only to one who is abandoned to promiscuity; however, a pilegesh is only a violation of a positive commandment because she is without kiddushin, as was written in section 7. Certainly this is the primary view, but it is possible that the opinion of our teacher, the Rema, is since it was taught in Torat Kohanim, "Do not profane your daughter to make her a harlot" (Leviticus 19:29)—this refers to one who hands over his unbetrothed daughter to his fellow not for the sake of marriage, and similarly one who hands herself over not for the sake of marriage [the Gra], and so it is in the Gemara [Sanhedrin 76a]. And since according to the Rambam a pilegesh is without kiddushin and there is a violation of a positive commandment in this, it follows that it is like mere promiscuity and there are lashes for it. And even though from the words of the Rambam himself at the end of chapter 2 of Na'arah Betulah it is explained that this is only when he abandons her to anyone who wishes to come upon her, as was written at the beginning of siman 4, see there; nevertheless, since from the language of the Shas and the Torat Kohanim it is explained that even when he hands her over to one person the law is so, and it is possible that even the Rambam, of blessed memory, does not intend specifically if he abandons her to all, and so it implies there from the beginning of his wording, see there, and therefore he ruled so; and it requires further study regarding the law.

An idolater who married an female idolater, and similarly an apostate to idolatry who married a female apostate according to their laws, and they subsequently converted and he did not betroth her anew—there is no concern of kiddushin at all even if it was in the presence of valid witnesses, for there is neither "he gave" nor "he said," but rather the priest gives each of them a ring; and even if there are witnesses of seclusion, for he had intercourse based upon the initial marriage; and she is permitted to leave him without a get even though he remained with her for several years, for it is nothing but mere licentiousness, as I wrote in siman 149, see there. And some say that if he lived with her after this, we say presumably a person does not intend his intercourse to be an act of licentiousness, and even if she was secluded with him after this before witnesses or it is known to all—she requires a get. And in the land of Spain during the time of the decrees, when they kept the religion of Israel in secret, they were stringent in every case since they were secluded before many anusim like themselves—she is his complete wife. And the law that was explained, that there is no concern of kiddushin, is only when they act of their own will. And an Israelite who married a female idolater and she converted and they lived together without kiddushin and a ketubah anew and afterward he went and left her—she does not require a get, for even if he should say that he had intercourse with her for the sake of kiddushin, since he was not secluded with her with witnesses, it is nothing. And one who lives with an unmarried Israelite woman in licentiousness and they say they intended for kiddushin, if there was one time of seclusion with witnesses or it is known to all that they are secluded together—she requires a get.

A woman is betrothed with money, or with a document, or with intercourse, and all of them are from the Torah. With money – as it is written, "When a man takes a woman," and there is no "taking" except with money, as it is written, "I have given the money for the field; take it from me" (Genesis 23:13). And with a document – as it is written, "and she departs from his house, and goes and becomes another man's" – it compares her becoming to her departure; just as her departure is with a document, so too her becoming is with a document. And we do not compare her departure to her becoming, such that she would be divorced with money, for it is written, "and he shall write for her a scroll of severance," that only through writing is she divorced. And with intercourse – as it is written, "When a man takes a woman and has intercourse with her" (Deuteronomy 24:1), and it is likewise written, "consorted with a husband" (Deuteronomy 22:22) – that through intercourse he becomes her husband.

The sages forbade betrothing through intercourse due to licentiousness, for one must designate witnesses for this and the matter is ugly; if he transgressed and betrothed—they strike him with lashes of rebellion and the kiddushin are valid. Similarly, the sages forbade betrothing a woman in the marketplace even with money or a document, because this too is like licentiousness. Similarly, they forbade betrothing without prior shidduchin, for this is not the way of the upright and is like licentiousness. The opinion of the Rambam in chapter 3 of Ishut is that in these cases as well they strike with lashes of rebellion and the kiddushin are valid, but there are some of our teachers who hold that in these two cases they do not lash with lashes of rebellion, as this is not similar to the licentiousness of one who betroths through intercourse; and even regarding intercourse where they strike him, they do not strike her, for he is the one performing the act of kiddushin [and it requires a bit of further study from Choshen Mishpat siman 8 and siman 87, and the Perishah settles it, see there] [see Makneh who wants to say that the prohibition of intercourse to betroth is because they forbade a betrothed woman, and it is astonishing].

At all times one may betroth a woman—whether by day or by night, whether with kiddushin of money or with kiddushin of a document, except for Shabbat and Yom Tov, when it is forbidden to betroth as is written in Orach Chaim siman 339. And if one transgressed and betrothed, even intentionally—his kiddushin are complete kiddushin, for even a transaction performed through a prohibition, the transaction stands, as is written in Choshen Mishpat siman 208, and all the more so regarding kiddushin, as there are those who permit betrothing on Shabbat ab initio when he does not have a wife and children, as is written in Orach Chaim there. And at night one may betroth even ab initio, and such is the custom in all our regions.

Chuppah without kiddushin is not like kiddushin – so agreed most of our teachers, even if she is pure, for we do not find more than three acquisitions regarding a woman, and so it is implied from the flow of the Sugya of the Shas at the beginning of Kiddushin. However, there are some of our teachers who wrote that it is a legal doubt and she requires a get out of doubt, and so they ruled in the Tur and Shulchan Aruch; therefore, if she received kiddushin from another, she requires a get from both of them. And if he betrothed her after the chuppah, whether her status is like a married woman or only like a betrothed woman – it will be explained with the help of Heaven in siman 61, and there it will be explained what constitutes a chuppah and the law of the chuppah of a niddah. And regarding kiddushin, there is no difference according to all the poskim whether she was a niddah or was not a niddah; even according to the Rambam, who holds that the chuppah of a niddah does not make her a married woman, regarding kiddushin he admits that it makes her a completely betrothed woman, and specifically regarding chuppah he holds that we require a chuppah fit for cohabitation and not regarding kiddushin, and even regarding chuppah most of the poskim disagree with him [see what the Rambam wrote in chapter 4 of Ishut, halacha 12].