Shabbat Parashat Bereishit l 5767

Moreshet Shaul

A Siyum on Massechet Kiddushin- part 1

 (based on Chavot Binyamin, siman 119)

The last mishna in Kiddushin mentions that the forefathers kept the laws of the Torah before they were given. Rav also repeated this concept in Yoma 28. On this, the Makneh asks how Avraham could marry Hagar, as she was a first generation Egyptian (see Devarim 23:9). He suggests an answer that the prohibition is only to marry an Egyptian through formal kiddushin, whereas Hagar was only a pilegesh (concubine). This works out according to the Rambam that a pilegesh does not have kiddushin.

The gemara (Sanhedrin 21a), discussing the number of wives a king can have, cites Rav who says that a pilegesh refers to a woman who received kiddushin from the king but lacked a ketuba. This fits Rav’s approach that those things that the prophet Shmuel warned that a king might do (including taking one’s daughter) are forbidden to him, as a king has no dispensations from the prohibitions incumbent on all of Bnei Yisrael. Therefore, there must be kiddushin, for it is forbidden to live with a woman without it. Another indication that a pilegesh has kiddushin is from the machloket between R. Yehuda and R. Meir whether a pilegesh has no ketuba or a partial ketuba. This seems to assume that there must be kiddushin, for otherwise, there would be no reason to consider a ketuba. If so, wasn’t Avraham’s taking of a pilegesh, whether it was with or without kiddushin, forbidden?

The Magid Mishne (on the Rambam, Ishut 1:4) says that the Rambam’s text in Sanhedrin is that a pilegesh has kiddushin but no ketuba. This is difficult because the Rambam (Melachim 4:4), in reference to a king, says that a pilegesh does not have kiddushin. Also, how can there be kiddushin without a ketuba, as the halacha is that a condition to withhold a ketuba from one’s wife through kiddushin does not take effect? The Makneh says that the relationship with a pilegesh lacks the mutual obligations between the two (including ketuba), and it just allows occasional cohabitation. However, this is difficult, for if there is kiddushin, how can the mutual obligations that kiddushin entails not set in?

Let us take a further look at the Rambam’s (ibid.) position on pilegesh: “So too, he [the king] takes women from throughout the borders of Israel: wives, with a ketuba and kiddushin, and pilagshim, without a ketuba or kiddushin. Just by singling her out, he acquires her, and she is permitted to him. However, a simple person is forbidden to have a pilegesh except a female servant after yi’ud (setting her aside as a wife- see Shemot 21:8-9).” How is it that a king may take a pilegesh without kiddushin if a regular Jew is prohibited to do so? After all, although Shmuel mentioned certain of a king’s powers, which according to some, he is permitted to exercise, this only allows him to assert his authority over a fellow Jew, not to ignore a religious prohibition. It is also unclear why the Rambam views yi’ud as a case of pilegesh, as the process appears to create full ishut (status of marriage), just as kiddushin does.

To begin answering these questions, we will note another halacha in the Rambam, which opens the laws of Ishut and is the basis of a broad thesis: “Before the Torah was given, a man would meet a woman in the market. If he and she wanted him to marry her, he would bring her into his house and cohabitate in seclusion, and she would be his wife. Once the Torah was given, Israel was commanded that he should first acquire her in front of witnesses, and then she would be for him a wife.”

The Rambam seems to be saying that the major innovation of the Torah law of kiddushin is the need for witnesses. We would have thought the act of acquisition was the heart of the matter and the witnesses are a simple detail.

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