Commentary for Kiddushin 18:23

Documents of apportionment-These are the conditions between the parties, and money which they pledge one to another

R. Shimon b. Lakish asks whether the document used for betrothal must be written expressly for this woman. Meaning if he finds a piece of paper on which it is written, “Your daughter be betrothed to me” can he just pick it up and use it to betroth whatever girl he wants.
A get must be written with the particular divorcee in mind. So does the same law apply to the deed of betrothal? Or might we say that just as the money does not need to be “for her sake,” neither does the deed of betrothal?

Due to the verse that is read as comparing marriage to divorce, betrothal documents must also be written with the particular woman in mind.

The deed was written with her in mind, but he wrote it before he told her (or her father) he was writing it. Maybe he was trying to be romantic?
In any case, there is a dispute over whether this document is valid.

R. Papa first explains the reasoning of his disputants. A get must be written for the woman’s sake, with that particular woman in mind. But it need not be written with her consent. After all, she can be divorced against her will. So too when it comes to marriage, the document must be written for her sake, but not necessarily with her consent.

R. Papa also compares the divorce document with the betrothal document. When it comes to divorce, the one giving something must consent—the man is giving her herself, so too when it comes to betrothal, the giver, this time the woman giving herself in marriage, must consent to the writing of the document.

This baraita seems to state explicitly that both the man and woman must consent to the writing of the documents of marriage and betrothal.

The Talmud reinterprets the baraita such that it refers to “deeds of stipulation.” These are deeds written at the time of betrothal in which the fathers of the groom and bride promise to endow their children with gifts. Once the betrothal occurs, the fathers owe this money even if a more formal act of acquisition (kinyan) has not occurred. However, a document is not written out without their consent. It might be that they prefer to keep this a verbal obligation. We should note that there is a bit of a paradox here—the Talmud calls them “deeds of stipulation” but then says that they need not be written down.

The Talmud reinterprets the baraita such that it refers to “deeds of stipulation.” These are deeds written at the time of betrothal in which the fathers of the groom and bride promise to endow their children with gifts. Once the betrothal occurs, the fathers owe this money even if a more formal act of acquisition (kinyan) has not occurred. However, a document is not written out without their consent. It might be that they prefer to keep this a verbal obligation. We should note that there is a bit of a paradox here—the Talmud calls them “deeds of stipulation” but then says that they need not be written down.

The verse from Deuteronomy describes a married woman as one “who had intercourse with her husband.” To R. Yohanan this proves that intercourse is a means of betrothal.

The question is asked why R. Yohanan needed a new midrash when Rabbi [Yehudah Hanasi] had provided what seems to be a perfectly good one using a different verse.

If we only had the verse from Deuteronomy 24 we might have thought that two stages were necessary. First betrothal, assumedly by money, and then intercourse. After all, the verse uses two verbs—“take” and “has intercourse.” R. Yohanan’s midrash teaches more effectively that intercourse alone is sufficient to create a bond of betrothal.

R. Abba b. Mammel raises a difficulty on the notion that we might think that for betrothal to occur, there needs to acquisition by money and intercourse. According to the Torah, a betrothed virgin who commits adultery is sentenced to death by stoning. But if both betrothal by money and intercourse were necessary for betrothal, then there would be no such thing as a betrothed virgin. She would either be betrothed and not a virgin, or not betrothed at all.

R. Abba b. Mammel raises a difficulty on the notion that we might think that for betrothal to occur, there needs to acquisition by money and intercourse. According to the Torah, a betrothed virgin who commits adultery is sentenced to death by stoning. But if both betrothal by money and intercourse were necessary for betrothal, then there would be no such thing as a betrothed virgin. She would either be betrothed and not a virgin, or not betrothed at all.

The rabbis try to answer the objection. It is possible that the betrothal was done through “unnatural (anal) intercourse.” This, with money, would be enough to betroth her. But then she would still be a virgin such that if she committed adultery, she would be sentenced to death by stoning. In other words, unnatural intercourse counts as intercourse, but leaves her as a virgin (yes, this beginning to sound Clintonesque). While this scenario is completely unlikely, it is not, according to these rabbis, impossible.

Abaye says that unnatural intercourse with her husband (or fiancée) does cause her to be considered a non-virgin. Therefore, if she has unnatural intercourse as a means of betrothal, she is not considered a virgin. The only dispute was over whether unnatural intercourse with other men renders her a non-virgin.
The dispute in the baraita occurs with regard to a betrothed girl. If ten men have sex with her, all unnaturally, they are all considered to be having adultery with a betrothed virgin and all are executed by stoning. Rabbi disagrees. The first had sex with a virgin, so he is stoned. But the remainder had sex with a non-virgin, so they are strangled, the punishment for adultery with a betrothed non-virgin.
[A reminder—these types of discussion are highly theoretical. I would say that what is at stake here is not at all who is executed and how. What is at stake is who is considered a virgin. The rabbis just use this case to define virginity. And even that discussion probably has little ramifications on real life].

Abaye says that unnatural intercourse with her husband (or fiancée) does cause her to be considered a non-virgin. Therefore, if she has unnatural intercourse as a means of betrothal, she is not considered a virgin. The only dispute was over whether unnatural intercourse with other men renders her a non-virgin.
The dispute in the baraita occurs with regard to a betrothed girl. If ten men have sex with her, all unnaturally, they are all considered to be having adultery with a betrothed virgin and all are executed by stoning. Rabbi disagrees. The first had sex with a virgin, so he is stoned. But the remainder had sex with a non-virgin, so they are strangled, the punishment for adultery with a betrothed non-virgin.
[A reminder—these types of discussion are highly theoretical. I would say that what is at stake here is not at all who is executed and how. What is at stake is who is considered a virgin. The rabbis just use this case to define virginity. And even that discussion probably has little ramifications on real life].

Abaye says that unnatural intercourse with her husband (or fiancée) does cause her to be considered a non-virgin. Therefore, if she has unnatural intercourse as a means of betrothal, she is not considered a virgin. The only dispute was over whether unnatural intercourse with other men renders her a non-virgin.
The dispute in the baraita occurs with regard to a betrothed girl. If ten men have sex with her, all unnaturally, they are all considered to be having adultery with a betrothed virgin and all are executed by stoning. Rabbi disagrees. The first had sex with a virgin, so he is stoned. But the remainder had sex with a non-virgin, so they are strangled, the punishment for adultery with a betrothed non-virgin.
[A reminder—these types of discussion are highly theoretical. I would say that what is at stake here is not at all who is executed and how. What is at stake is who is considered a virgin. The rabbis just use this case to define virginity. And even that discussion probably has little ramifications on real life].

R. Nahman b. Yitzchak finds a better solution. The case in the Torah could occur if he betrothed her by deed. Such an act does not need to be accompanied by intercourse for it to be an effective means of betrothal.
Just to track where we are in the argument: we have now successfully explained why R. Yohanan needed another verse to prove that betrothal can be done through intercourse. Without that verse we might have thought that betrothal through intercourse can only be done when first preceded by betrothal through money. Now we know that each means of betrothal can be done independently.

R. Yohanan did not use the verse used by Rabbi to prove that intercourse is a means of betrothal. So what does he do with that verse? He uses it to learn that a wife may be betrothed (acquired) through intercourse. But intercourse is not a means to acquire a female slave. The Talmud will now explain why we might have thought that it is.

A yevamah, a woman awaiting levirate marriage, is “acquired” through intercourse when the yavam has relations with her. But she is not acquired through money, as a wife is in regular marriage. So if the yevamah, can be acquired through intercourse, I might have thought that the same is true of the Hebrew slave woman, for she can be acquired even through money.

The Talmud pushes back against this argument. I might have thought that a yevamah could be acquired through intercourse because she is already connected to the yavam through her marriage to his now deceased brother. But I would not have thought such a thing about a slave woman who does not have a prior connection to the owner.

The Talmud now invents another reason we would have thought that a female Hebrew slave could be acquired by intercourse. In the verses about such a slave the owner is described as taking another wife. We might have thought that just as this wife is acquired by intercourse, so is the slave. That is why we learn that she is not.
As an aside, while it is clear that this slave is not acquired by intercourse, we should note that in the verses the distinction between the slave and a wife is not so clear. It seems that he acquires her so that she might someday become his or his son’s wife. Such an institution did not exist in rabbinic times. And as I’ve said, these discussions are extremely theoretical.

Rabbi uses the extra word “her” which the verse could have skipped to derive both laws—a woman is betrothed through intercourse but a Hebrew female slave is not.

Rava uses this same verse for yet another halakhah. For kiddushin to be valid, they must be able to be followed by legal intercourse. This is a case which we will learn later in the tractate in which a man married one of two sisters but does not know which one. He cannot have sex with either of them because either of them might be his sister’s wife. Therefore, the kiddushin are not valid.
But now we return to our midrashic question—how can Rava learn all three things from one verse.

Rava learns another halakhah from the fact that the verse states “and” and not “or.” The betrothal (“when a man takes a woman”) must be inextricably connected with the legality of having intercourse.

Now we have to ask the other question---how does Rabbi use the verse that R. Yohanan used to prove that betrothal can be done through intercourse?
He uses it to prove that if the husband has unnatural intercourse with her, she is now considered a non-virgin. But if another man has unnatural intercourse with her, she is still considered a virgin.

But Rabbi earlier said that he does posit that unnatural intercourse renders her a non-virgin. This baraita was explained in yesterday’s section.