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The Torah in Parashat Ki-Teseh (Debarim 22:13) says in reference to marriage, “Ki Yikach Ish Isha U’ba Eleha” – “If a man takes a woman, and then has relations with her…” The Sefer Ha’hinuch writes that the Torah here introduces the Misva of Kiddushin – to first “take,” or betroth, a woman before having an intimate relationship.
The first Mishna in Masechet Kiddushin states that betrothal is performed in one of three ways. The first is Kesef – by giving the woman money or an object of value. The Gemara infers this concept from a verse in the Book of Shemot (21:11) which says that after a maidservant reaches Halachic adulthood, she must be let free, without the master receiving any money (“Ve’yas’a Hinam En Kasef”). The Sages understood from this verse that a master does not receive money when his maidservant leaves, but a father receives money for the betrothal of his young daughter. This establishes the concept of “Kiddusheh Kesef” – betrothing a woman by giving money.
The second method of betrothal is “Shetar” – by giving the woman a document formally declaring her betrothed to him. The Gemara teaches that this concept is inferred from the association implied by the Torah between betrothal and divorce; just as divorce is effected through a document, by giving a Get, one can likewise betroth a woman by giving her a document.
Finally, a woman can be betrothed through Bi’a – by having an intimate relationship with her with the specific intention of betrothing her. The Sefer Ha’hinuch writes that this is inferred from the aforementioned verse in Parashat Ki-Teseh – “Ki Yikach Ish Isha U’ba Eleha” – which speaks of intimacy in the context of betrothal. Interestingly, the Gemara infers this form of Kiddushin from a different source (“U’be’alah” – Debarim 24:1).
The practice, of course, is to betroth a woman specifically through Kiddushei Kesef, by giving the bride an object a value.
The reason for this Misva, the Sefer Ha’hinuch writes, is that it would be inappropriate to begin marriage without some formal process, as doing so would resemble Zenut (a casual intimate relationship). In order to lend marriage respect and dignity, the Torah requires performing an act that formally designates the woman as one’s wife before beginning marital life. Moreover, the Sefer Ha’hinuch writes, a formal act of designation reminds the woman of her married status, that she is somebody’s wife, and this would help ensure that she remains faithful. The Sefer Ha’hinuch adds that this is why it is customary to betroth with a ring – so that the wife will always wear the ring and be reminded of her status.
The Gemara in Masechet Kiddushin addresses the question as to whether Kiddushin can be performed through a “Kinyan Halipin” – the symbolic transfer of something of minimal value, such as a handkerchief. A legal transaction of goods can be effected in this manner, even though the seller does not receive anything of significant value, because the act is symbolic of the parties’ agreement to the exchange. According to some opinions, although this mechanism is effective for the transfer of goods, it does not work in the context of Kiddushin, because the woman does not receive anything of value, and so she does not commit herself to the husband. The Sefer Ha’hinuch clarifies that Kiddushin through a Shetar is effective even though the document given to the woman is worth almost nothing. The transfer of a legal document is a very widespread, recognized method of acquisition, and so it is effective for Kiddushin, as well, despite the fact that the woman does not receive anything of value.
When a groom betroths his bride, he makes the declaration, “Hareh At Mekudeshet Li Be’taba’at Zo Ke’dat Moshe Ve’Yisrael” – “You are hereby betrothed to me with this ring, in accordance with the laws of Moshe and Yisrael.” The ring must be given to the bride in the presence of two valid witnesses. The groom, and not the bride, must transfer the ring and make this declaration.
The Gemara in Masechet Ketubot (7) states that a special Beracha is recited at the time of Kiddushin. It is customary that somebody else recites this Beracha on the groom’s behalf. The Sefer Ha’hinuch writes that this Beracha is recited just like we recite Berachot over the performance of other Misvot. And just as regarding other Misvot, somebody can recite the Beracha on behalf of somebody else, at a wedding, too, somebody recites the Beracha on the groom’s behalf. We customarily recite this Beracha over a cup of wine.
Interestingly, the Sefer Ha’hinuch writes that this Beracha should be recited after the act of Kiddushin, not before, despite the general rule that Berachot over a Misva are recited “Ober La’asiyatan” – before the performance of the Misva. The reason for this exception, the Sefer Ha’hinuch explains, is that the fulfillment of the Misva of Kiddushin depends on the bride’s consent. If the bride has a change of heart, and decides she does not wish to marry this man, then she of course may refuse to accept the betrothal. Thus, if the Beracha is recited before the Kiddushin, it could end up having been recited in vain (“Beracha Le’batala”). For this reason, in the view of the Sefer Ha’hinuch, the Beracha should be recited specifically after the betrothal, and not before. The Rambam, by contrast, maintained that the Beracha over Kiddushin is recited before the betrothal, following the general rule that Berachot are recited before the performance of the Misva.
An entirely different approach to understanding this Beracha is taken by the Ritba (Rav Yom Tob Ben Abraham of Seville, Spain, c. 1260-c. 1314), who claims that this Beracha is not recited over the Misva of Kiddushin. If it were, the Ritba writes, then the text would resemble that of other Berachot recited over Misvot, and would be “Asher Kideshanu Be’misvotav Ve’sivanu Le’kadesh Ha’isha.” In the Ritba’s view, this Beracha is recited to praise Hashem for the concept of Jewish marriage, and does not relate specifically to the Misva of Kiddushin. This is why, according to the Ritba, this Beracha is not recited by the groom – the one who performs the Misva of Kiddushin – and why the Beracha makes reference not only to Kiddushin, but also to the Hupa, the second stage of the wedding (“Al Yedeh Hupa Ve’kiddushin”). If this were a Beracha over the Misva of Kiddushin, it should be recited by the person fulfilling the Misva, and should mention only Kiddushin, and not also the Hupa.
If somebody marries a woman without performing Kiddushin, he is in violation of this affirmative command.
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