HaRav Aharon Lichtenstein ztz"l
[A recent audio shiur on the topic]
Translated, abridged and adapted by Moshe Cahan,
Menachem Weinberg, and R. Yair Kahn
Massekhet Kiddushin opens with a discussion of kinyan kiddushin - the different ways in which a marriage bond can be created. The nature of marriage itself, however, must be categorized as an issue of issur ve-heter (forbidden and permitted relations), and not as a matter of kinyan (acquisition). Marriage forbids the bride to other men, and permits her to her husband. This permission, attained through marriage, clearly assumes that before a woman is married, relations with her are prohibited. Therefore, before we delve in upcoming shiurim into the modes in which kiddushin is accomplished, let us first examine the halakhic background which makes kiddushin necessary.
[What follows is an excerpt from a much lengthier shiur by Rav Lichtenstein which dealt in-depth with the various sources prohibiting premarital relations. In this presentation we merely summarize the three possible sources for the prohibition of premarital relations, and then bring one interesting test case from among the several discussed by Rav Lichtenstein.]
The Prohibition of Premarital Relations:
There are three types of prohibitions that may apply to premarital relations:
A. Firstly, these relations may be prohibited on the rabbinic level. The prohibition of yichud (the private seclusion of a man with a woman) obviously assumes a prohibition on actual relations as well, at least on the rabbinic level.
B. The Rivash (395) thinks that one who has premarital relations violates an issur aseh - a transgression of a positive commandment. The Torah dictates that a man should marry a woman, and only then have relations with her (Devarim 24:1); thus anyone who forgoes the religious ceremony is actively negating this positive command. In other words, he is transgressing an implicit biblical ordinance, and not merely violating a rabbinic prohibition.
C. Rambam (Hilkhot Ishut 1:4) and Ra'avad disagree whether or not there is a direct biblical prohibition against premarital relations. The issue revolves around interpretation of the Torah's prohibition on prostitution in Devarim 23:18. While Rambam thinks that all extramarital relations fall under the category of prostitution, Ra'avad limits the prohibition. Only a woman who clearly designates herself as a prostitute, be it by publicly soliciting on the streets or by working in a brothel, can be defined as a prostitute. Only with such a woman would relations be in direct violation of the biblical prohibition on prostitution.
To summarize, premarital relations are clearly prohibited by rabbinic law and may also be in violation of the biblical imperative to marry before having relations. Rambam thinks that the biblical prohibition against visiting a prostitute applies as well, whereas Ra'avad disagrees.
In biblical times, the practice of having a pilegesh (concubine) was well-known (see Bereishit 25:6). A man would acquire and maintain a designated woman, in addition to his wife, for the distinct purpose of having relations with her on a regular basis. In light of the discussion above of the problems involved in extramarital relations, I would now like to examine how Jewish law relates to this practice.
Although the gemara in Sanhedrin (21a) states that a concubine is not actually married to her companion, some versions of the Sifra and Rashi (Bereishit 25:6) indicate that there is a marital bond, kiddushin, between the two. The Sifra distinguishes between standard marriage and the pilegesh relationship, only by the detail that a wife must be given a ketuba (marriage contract), and a pilegesh not. (See also Yerushalmi Ketubot 5:2.) Whether or not the system of pilegesh is a form of ishut (marriage), or completely divorced from the standard marriage framework, is not just a technical issue. There are numerous nafka minot (ramifications) of this legal classification. If pilegesh is just a different form of marriage, then various laws of marriage should equally apply to the concubine as to the wife. For example, she should be prohibited to other men, and she should require a get (divorce contract) to release her from this quasi-marital bond. However, if pilegesh is a strictly extramarital relationship, then none of these strictures should apply.
This question of whether or not the pilegesh is legally married to the husband is also important in light of the prohibitions on extramarital relations discussed above. If a pilegesh to a certain extent is married to the husband, then even if this marriage is on a lower level of intensity than the standard husband-wife relationship, the permissibility of this relationship is understandable. If, however, the pilegesh is a purely extramarital affair, such relations should surely be prohibited, as we saw earlier.
The Rishonim's Decision:
Earlier, we mentioned the controversy between Rambam and Ra'avad regarding the definition of the biblically prohibited prostitute. Rambam is of the position that all extramarital relations are considered prostitution, whereas Ra'avad limits the prohibition to an actual prostitute, one who has designated herself for this lifestyle. It is easy to understand, then, why Ra'avad says (Hilkhot Ishut 1:4) that there is no direct prohibition that is contravened by a man who has a pilegesh. The concubine is not walking the streets to sell her wares, but rather is designated to this man alone. While Ra'avad clearly states that no biblical prohibition is involved, he does not seem to actually permit one to acquire a pilegesh. Ramban (Responsa 105), on the other hand, is of the opinion that it is perfectly permissible for a man to acquire a concubine.
[Rav Yaakov Emden wanted to use this Ramban as the basis of a program that would re-institute the pilegesh system to solve a number of social problems in his day. Rav Chaim Soloveitchik is said to have remarked that this idea is a classic example of "naval bireshut ha-Torah," one who is vile while still remaining within the letter of the law.]
Rambam, however, has a singular opinion regarding the permissibility of the pilegesh (see Hilkhot Melakhim 4:4): a pilegesh is permitted only to the king, while a commoner is denied this option. This ruling is enigmatic, insofar as it complies with neither of the understandings of the pilegesh system developed previously. If pilegesh is considered an extramarital relationship, then according to Rambam's opinion above, it should be considered prostitution; why, then, is it permitted to a king? Does the king have different standards than the commoner with regard to other prohibitions in the Torah? If, however, pilegesh is some form of marriage, why is it prohibited to the commoner?
A careful study of the Rambam seems to indicate a categorization of pilegesh which differs from both of the alternatives previously mentioned. Rambam states explicitly that there is no kiddushin - marital bond - in the case of a pilegesh (as we quoted from the gemara in Sanhedrin above). This leads us to understand that pilegesh is an extramarital relationship. On the other hand, Rambam writes that a halakhic kinyan, a legally recognized acquisition, is necessary to acquire a pilegesh, just as one is required to actualize marriage. Furthermore, Rambam compares pilegesh to the case of yi'ud (the process in which a master takes his maid-servant as a wife), which is a clearly defined halakhic framework. The conclusion to be reached is simple. Pilegesh is an independent halakhic institution. Although it is not a form of marriage, it is, nonetheless, a recognized legal framework. Therefore, even though no kiddushin is involved in the case of pilegesh, some form of legal acquisition is required.
After understanding pilegesh as an independent legal system, we can now explain Rambam's ruling. Earlier we stated that Rambam prohibits all extramarital relations. Now we must modify our understanding and clarify that not all extramarital relations are prohibited, but rather, only relations that are not legally recognized are illegitimate. Relations that are within any accepted halakhic framework, including kiddushin, yi'ud, and pilegesh, are permissible. Why then does Rambam only permit a king to have a pilegesh? The answer seems to lie in the realm of kinyanim, the acts of acquisition necessary to effect the pilegesh relationship. Only a king has the ability to make the kinyan, one which is similar to yi'ud, that is necessary to acquire a pilegesh. [This may be due to the special laws which grant exclusivity to the king. Accordingly, a former wife of a king may never have relations with anyone else. Therefore, when the king takes a pilegesh, she becomes exclusively his, despite the lack of kiddushin (See Rambam Hilkhot Melakhim 2:1-2)]. It is not that the king is given more leeway in marital law (ishut) than is the commoner. If a commoner could effect the kinyan required, he too could acquire a pilegesh. However, in practice only a king can effect such a kinyan, hence only he can have a concubine.
Kiddushin effectively permits the bride to her husband, because prior to this, relations with her were prohibited, both by biblical and by rabbinic law. Whether or not premarital relations are considered prostitution is the matter of a dispute between Rambam and Ra'avad. We saw that the institution of pilegesh, the concubine, was understood by most Rishonim as either a quasi marital relationship or a strictly extramarital relationship. Rambam, however, sees pilegesh as a separate institution, parallel to marriage, that in practice only a king can effect.
Sources for Next Week's Shiur:
1) Kiddushin (2a) Mishna
Kiddushin (3a) "Ve-eima hachi nami ... nafsha"
Rambam Hilkhot Ishut 1:1
Ketubot (57b) "Amar ula ... kaspo hu"
Tosefot Rosh, Ketubot (2b) d"h Nistapcha "veyesh lomar .
(until the end)
2) Kiddushin (6b) "Ta shema ... lo kol sheken"
Ramban, Hashmatot leMassekhet Gittin 9a d"h Im "vehadin
eino ken ... ta'aninan la"
Nedarim (29a) "Amar lei R' Hamnuna ... bikdei"
3) Kiddushin (2b) "Venitani hatam ... ikulei alma kehekdesh"
Yerushalmi Kiddushin 1:1 "Kinei matnitin ... o be-viya"
1) Which pasuk suggests that kiddushin entails a form of kinyan?
2) Can the dimension of 'kinyan' present in Kiddushin be compared with a standard kinyan?
3) Why might the kinyan aspect of kiddushin be fundamentally different from a standard kinyan?
4) Which form of kiddushin (kesef, shtar, biya) most likely evokes a kinyan; which least?