Siman 33

It has already been explained in siman 26 that kiddushin through intercourse is explicit in the Torah: "When a man takes a woman and has intercourse with her" (Deuteronomy 24:1), see there. It was also explained there that the sages forbade betrothing through intercourse as it is an act of licentiousness; however, this does not constitute any hindrance regarding the validity of the kiddushin. And how is kiddushin through intercourse performed? He sequesters himself with her in the presence of two witnesses and says to her before them, "Behold, you are betrothed to me through this intercourse that I will perform with you immediately," and the witnesses exit and he has intercourse with her for the sake of kiddushin. The witnesses do not need to see the intercourse, as the matter is repulsive, but rather they see the sequestration. Even though they do not see the intercourse, nevertheless, since they see the sequestration, the witnesses to sequestration are themselves the witnesses to intercourse. And even though regarding kiddushin of money or a document they must see the actual kiddushin, nevertheless, this sequestration is also like actual intercourse as if they saw the intercourse, for it is fire in tow and it does not singe, and he is familiar with her. Furthermore, it is impossible to actually see like a brush in a tube, and even regarding witnesses to adultery, they execute even if they did not actually see like a brush in a tube, and there it is sufficient if they see them in the manner of adulterers, even though one could say perhaps he had contact with her through other limbs; nevertheless, they execute based on this appearance. And if it is difficult—behold, one is not executed for sequestration even if they say they are sequestering to perform the act, so why is she betrothed through sequestration even when they did not see this appearance? For certainly they are not comparable; for when one sequesters with her for an intercourse of transgression, how is it possible to say the witnesses to sequestration are themselves the witnesses to intercourse? Perhaps they repented and did not perform the act. Therefore, they are not executed unless witnesses saw that they were lying upon one another, for then it is obvious that they did not repent. But regarding a permitted intercourse, it is a simple matter that when they sequestered, he certainly had intercourse with her, for who would hinder them? Therefore, it is as if the witnesses saw the actual intercourse. And even though it is licentiousness, nevertheless, it is not a transgression; furthermore, the licentiousness has already passed from the moment they sequestered.

Therefore, it appears to me that one who effects kiddushin through intercourse with one of those prohibited by a negative commandment, we do not say in this case "the witnesses to the seclusion are the witnesses to the intercourse," and she is not betrothed unless they saw that he had intercourse with her, just as with the prohibition of zenut for which they execute, as I have written. And one cannot say that there, regarding a liability for death, we say they retracted but not regarding a negative prohibition, for what is the difference to me between a negative prohibition and what is the difference to me between a prohibition of karet [Yevamot 119a], both this and that are from the Torah. Or, it is possible to say that since they invited witnesses for this kiddushin, we indeed say as we do regarding permitted kiddushin, and it requires further study for the law. And so too there is reason to doubt regarding those secondary to the arayot and a chalutzah to a kohen, even though their prohibition is rabbinic, and see what I wrote in siman 18, section 3, and all the more so when he effects kiddushin with a niddah through intercourse, which is a prohibition of karet.

If he betrothed her before witnesses of seclusion, and they secluded themselves and remained for a duration sufficient for intercourse and emerged, and he or she said that he did not have intercourse with her and there are no kiddushin here—it appears that we are concerned for this and it is a case of doubtful kiddushin. And even if both of them say that he did not have intercourse with her, nevertheless they are not believed such that she may be released without a get. But one cannot say that he certainly had intercourse with her and it is certain kiddushin; it is not necessary to state this when both of them say so, but even if one says he had intercourse and one says he did not have intercourse, we say that it is possible that in truth he did not have intercourse with her, as we say regarding a yavam and a yevamah that for up to thirty days a person restrains himself, as I have written below in siman 167. And if so, here too there is reason to be concerned that perhaps he did not have intercourse with her, and therefore it is a case of doubtful kiddushin [it appears to me].

In siman 20 it was explained that regarding all forbidden relations, the liability is for ha'ara'ah even if he did not complete his cohabitation. Regarding the cohabitation of kiddushin, the sages, of blessed memory, said [10a] that anyone who cohabits intends for the completion of the cohabitation. In another place, the sages, of blessed memory, said [Yevamot 55b] that a woman is acquired by her husband through ha'ara'ah. Our teachers explained that if he completed his cohabitation, his intent was to acquire her only through the completion of the cohabitation; therefore, if before he completed it she extended her hand and received kiddushin from another, she is betrothed to the second. However, if he only performed ha'ara'ah with her and withdrew, he acquires through ha'ara'ah. Likewise, if he stated at the outset that his intent was to acquire through ha'ara'ah, he acquires through ha'ara'ah even if he completed his cohabitation; and if before the completion of the cohabitation she received kiddushin from another, she is betrothed to the first. And there are those who distinguish between the cohabitation of kiddushin, in which she is acquired only through a complete cohabitation, and the cohabitation after kiddushin to make her as a married woman, which is accomplished through mere ha'ara'ah since she was already acquired by him [the Rif]. And there are some of our teachers who said that certainly even in kiddushin, ha'ara'ah is like the completion of cohabitation just as in forbidden relations; and that which the sages, of blessed memory, said "completion of cohabitation" regarding kiddushin—it means the completion of ha'ara'ah, for even in ha'ara'ah there is a beginning and an end, as this ha'ara'ah is the insertion of the corona and the concept of beginning and end applies to it [Rabbeinu Tam]. Our teachers, the authors of the Shulchan Aruch, brought only the first opinion, and it implies that such is the primary ruling in the law.

Coitus that acquires her for kiddushin, there is no distinction between whether he came upon her in the natural way or in an unnatural way, for since he came upon her with a complete coitus for the sake of kiddushin—even in an unnatural way she is betrothed to him. And so too regarding all the forbidden relations, there is no distinction between the natural way and the unnatural way, as it is written: "the lyings of a woman" (Leviticus 18:22)—the modes of lying were compared to one another. However, if he came upon her with a flaccid organ—he has not acquired her, for this is not coitus, as I wrote in siman 20, section 17; see there. And so too if he came upon her as one acting inadvertently without intent, where he did not intend for coitus—it appears that he does not acquire her. And even though regarding a sacrifice he is liable since he derived pleasure, as I wrote there, nevertheless, regarding kiddushin we require intent to acquire her; and furthermore, in a case of a willful act, one who acts inadvertently is not liable for anything, as I wrote there. And so too a virgin less than three years and one day old is not betrothed through coitus, for her coitus is not coitus at all, as I wrote in section 37; see there. And so too accidental coitus does not acquire a woman, and all the more so coitus by duress.

Regarding kiddushin with money, it has been explained that the verbal declaration is essential, for if he did not say to her "Behold, you are consecrated to me," it is nothing unless they were speaking of matters of kiddushin. Regarding kiddushin with a document, we explained that the verbal declaration is not essential. Regarding kiddushin with intercourse—it appears that its law is like kiddushin with money; only with a document, in which the language of kiddushin is written, is the verbal declaration not essential. However, intercourse is like money, and without a verbal declaration it is like mere promiscuity. We do not say "a person does not intend his intercourse to be for the sake of promiscuity," for the Rambam already wrote in chapter 10 of Hilkhot Gerushin that we only apply this presumption to his wife whom he divorced or to one who consecrates with a condition and then has intercourse; see there. But if they are occupied with matters of kiddushin, it appears that the verbal declaration is not essential, just as with kiddushin with money. There are those who deliberate even on this, since the witnesses do not see the intercourse. It appears that in such a case, the verbal declaration is certainly not essential, for since they invited the witnesses for the seclusion, even according to the Rambam it is obvious that we say "a person does not intend his intercourse to be for the sake of promiscuity," and it is no worse than one who consecrates with a condition and then has intercourse, and certainly so according to those who disagree with him. And if they designated one witness for the intercourse, according to the one who is concerned for kiddushin with one witness in siman 42—here too there is reason for concern.

With an act of bi'ah for kiddushin, she only becomes as one betrothed, just as with kiddushin of silver or a document, and she does not become as one married. And even though a married woman is one who has had intercourse, and here too she has had intercourse, nevertheless, since this is a bi'ah of kiddushin, she does not become as one married, and all the distinctions that exist between one betrothed and one married apply to her as well. This is the wording of the Rambam in chapter 10: A betrothed woman is forbidden to her husband by the words of the scribes as long as she is in her father's house, and one who has intercourse with his betrothed in his father-in-law's house is struck with lashes of rebellion. And even if he betrothed her through bi'ah, it is forbidden for him to have intercourse with her a second time in her father's house until he brings her into his house and isolates himself with her and sets her apart for himself; and this isolation is what is called "entering the huppah," and it is what is called "nisuin" everywhere. Thus far his words. And so too the distinctions that exist in the laws of the Torah between one betrothed and one married—such as if he is a kohen he does not contract tumah for her, as written in Yoreh Deah siman 373, and similarly that he does not inherit from her—apply also to kiddushin of bi'ah. And even though the reason for tumah and for inheritance is because it is written "his kin" (Leviticus 21:2), and "his kin" refers to closeness of the flesh [Rashi Bava Metzia 18a, and his wording in Ketubot 53a s.v. "he does not inherit her" requires further study], and in kiddushin of bi'ah there is indeed closeness of the flesh, nevertheless, since this bi'ah is not for the sake of nisuin but for the sake of erusin and he is still not permitted to her as the Rambam wrote, this is not considered closeness of the flesh. For even from the Torah there is a distinction between one betrothed and one married, as it is written: "And what man is there that hath betrothed a wife, and hath not taken her" etc. (Deuteronomy 20:7), and this includes all types of erusin, whether kiddushin of silver and a document or kiddushin of bi'ah—behold, the Torah called him one who has not yet "taken" her [it appears to me], and see what I wrote in siman 55.

Our teacher, the Rema, wrote that some say this is specifically when he had intercourse with her in the house of his father-in-law, but if he brought her into his house and had intercourse with her, or if he had already betrothed her and had intercourse with her—her status is that of a married woman. Thus far his words. And he means to say that when he brought her into his house and betrothed her through intercourse, the erusin and the nishuim come as one, for the bringing into his house is like nishuim, as is proven from the wording of the Rambam in the previous section. And so too when he had already betrothed her with money or with a document, even if he had intercourse with her in the house of his father-in-law for the sake of nishuim—she is like a married woman. And that which we hold that one who has intercourse with his betrothed in the house of his father-in-law is lashed as we have written—this is when he did not come for the sake of nishuim but rather in the manner of licentiousness, but in the manner of nishuim he is not lashed and she becomes a married woman through this cohabitation. And even if he did not recite the nishuim blessings, the blessings are not a prerequisite, and that which the sages, of blessed memory, said, "A bride without a blessing is forbidden to her husband like a niddah" [Massekhet Kallah 1:1], the intention is regarding the nishuim, but the blessings are ab initio and post facto they are not a prerequisite, like all blessings [it appears to me, and see Beit Shmuel siman 55, subsection 1].

And behold, this distinction made regarding kiddushin through bi'ah, between one who had relations with her in his father-in-law's house and one who brought her into his home, is not implied by all the Rishonim and is a minority opinion [Ran, chapter HaMadir], and even he did not rule definitively on the matter [as he wrote the language of "perhaps"], and the plain meaning of the Shas implies that any bi'ah that is not through chuppah—meaning the bi'ah of kiddushin—is nothing more than erusin in all cases [for if not so, in the Gemara 10a: regarding that which Ben Bag Bag said, let it be established as not through chuppah and he had relations with her in his home; and the HaMakneh brought proof contrary to our teacher, the Rema, from Tosafot Yevamot 59a, s.v. "Ha," see there, but it can be rejected that it refers to the sugya which deals with a case not in his home, and the Gra also disagrees with him, see there].

However, regarding that which he ruled—that through an act of intercourse following the kiddushin she becomes as a married woman if he intended for marriage—this is certainly so; and even if he betrothed her through intercourse and returned and had intercourse with her for the sake of marriage, she is as a married woman. [From the Ran, first chapter, beginning with the words "We maintain in the Gemara, it was asked of them etc." from his proof through a kal vachomer, see there and examine closely]. And even though only chuppah effects marriage, nevertheless, chuppah is only for the purpose of intercourse, and certainly intercourse itself [ibid.]. Furthermore, it is the opinion of many of the poskim that the essence of the chuppah is the yichud, as I wrote in siman 55, and this is the case with the chuppah itself if he intended for the sake of marriage and not for mere zanat. Nevertheless, even in this, there are those who say that in the house of his father-in-law it is not effective, but only by bringing her into his house and his yichud with her [the Gra, subsection 5]. And I do not understand: since he designated her for the intercourse of marriage, what does it matter to me if it is in his house or not in his house? And so it is explained from the language of the Rambam [ibid.] who wrote: "And one who has intercourse with his betrothed for the sake of marriage after he betrothed her, once he has performed the initial stage of contact—he has acquired her and she becomes a married woman, and she is his wife in every regard." Thus far his words. And it implies explicitly that in any place where he has intercourse with her for the sake of marriage, she is as a completely married woman.

He (the Rema) further wrote: There are those who say that an unmarried man who cohabits with an unmarried woman before witnesses, we are concerned that perhaps he intended for the sake of kiddushin, for there is a presumption that a person does not make his cohabitation a cohabitation of licentiousness; but if he was already established in licentiousness or if he has another wife – we are not concerned, and there are those who are lenient in every case, and see below siman 149 and siman 166 and above siman 15, thus far his words. And even according to those who hold this presumption, it only applies to the man and not to the woman who was cohabited with [Mishneh LaMelech chapter 10 of Gerushin halacha 18], and it is obvious that when she is a niddah this presumption is not relevant since he is violating a severe prohibition [ibid.]. And the essence of this dispute depends on the words of the Rambam chapter 10 of Gerushin and chapter 4 of Nachalot, for the Rambam disagrees with some of the Geonim who said that regarding every person and in every case we state this presumption, and the Rambam holds that we do not state this except regarding his wife whom he divorced as written in siman 149, and we have already written this in siman 15 section 11, and likewise regarding his maidservant who bore him a son and he treats him with the custom of sons and he is a Torah scholar and established as one who is meticulous with mitzvot, see there in the laws of Nachalot. And know that regarding what our teacher, the Rema, wrote that it occurred before witnesses – his intention is not that he designated witnesses for his seclusion, for certainly in such a case even the Rambam admits that we are concerned for kiddushin, rather the intention is that he did not designate witnesses but rather that witnesses saw from the outside, and so it is explained in the source of the law in the Mordechai chapter 3 of Kiddushin, see there. [And see what I wrote in siman 149 section 13 regarding the opinion of the Rema].