Thursday, September 15, 2016

What is meant by kinyan for marriage: Is a wife property which is acquired like an ox or a slave?

update - added sources that clearly indicate that the husband is more obligated regarding his wife's sexual satisfaction than she is obligated to him - and they are in fact muturally obligated.

I have been working on understanding the issue of kinyan in regards to a wife. The normal translation would be that the husband acquires a wife in 3 ways (Kiddushin 2a), money, document or intercourse. And therefore one might conclude that the Jewish view of marriage is that a man buys a wife in the same way as he buys a cow or a slave. But the gemora makes clear that that is not so. We find in Kiddushin (6a) and other places that while a heathen slave is physically bought and possessed – a woman is not. In short the husband clearly doesn’t own her as a slave or an ox and she is not his property. 

Tosfos haRosh(Kesubos 2a): His field got flooded… In a case where the wife developed serious blemishes we say “his field got flooded”[it is his bad luck]. It should similarly be true that if the husband developed serious blemishes then we should say that “her field got flooded” [it is her bad luck]. So why is it only when the husband gets serious blemishes that we force him to divorce her? The answer is that the wife is his monetary purchase (kinyan kaspo) just as his slave or ox or donkey and therefore what happens to her is the result of his mazel (luck). [the reverse is not true because he is not her possession]
However as the Rambam (Hilchos Ishus 1:1) states, the Torah requires that a man makes a kinyan on a woman to make her his wife. We see also regarding Teruma which a cohen is allowed to eat – that that which he owns can also eat teruma. The heter provided in the Torah (Vayikra 22:11) A cohen who acquires a person himsef (i.e. a slave)  through money (kinyan kaspo). That person can eat the  cohen’s teruma as well as he who is born in the cohen’s house from slaves – they can eat of his bread )-  is called kinyan kaspo (acquired with his money).
Yevamos(66a): As it was taught: How do we know that a cohen who marries a woman and acquires slaves that they can eat teruma? Because it say, And the cohen who acquires a soul – through kinyan kaspo (monetary acquition) -that person he acquired can eat teruma.
Thus a wife is called kinyan kaspo – even though not kinyan gufa (acquisition of her body). That is enough to be able to eat teruma. A problem arises since a Hebrew slave who is also not kinyan gufo – is not allowed to eat teruma. What is the difference between them? Furthermore why is a wife acquired through intercourse or a yevama allowed to eat teruma – they clearly are not even kinyan kaspo? This requires further study.

There are additional problems understanding the nature of monetary kinyan. As is well known the Rambam says it is only rabbinic in nature (divrei sofrim). This is also the view that Rashi rejects from his own teachers as well as the view found in the Gaonim. However even accepting the majority view that kinyan with money  is doreissa – it is formally learned from a gezera shaveh comparing two verses - which as Tosfos (Kiddushin 2a) points out is problematic. One verse says that the money was taken in acquiring the field while in the second verse the woman is being taken to be his wife. For the gezera shaveh to be meaningful the first verse should have said, “The field was acquired by giving money” and compare this to the common word of acquisition in the second verse -  “The woman who is being acquired through the man giving money. In short monetary kinyan is not acquiring a wife in the sense of buying a field or a slave but it is something. It might be a metaphor - but it is clearly not a commercial transaction.

Putting aside these issues. So if the basis of marriage is kinyan kaspo – what exactly is acquired? The Netziv (4:35) [see translation below] says the kinyan is on her sexuality but not any other aspect of her. Similarly R Avraham minHaHar (Nedarim 15b) says that a wife can not take a Neder prohibiting to her husband the pleasure of intercourse and can be forced to go against the Neder if she makes it - because she was acquired by him regarding intercourse as the verse says "when a man takes a wife". 

This too is problematic. Does that mean that she is a sex slave to her husband while being free in everyone other sense? While the language of the Netziv suggests that as does the statement in Nedarim (20b) that “a man can do whatever he wants with his wife” – it is clearly not the view of our Sages. They clearly state that a man can only do what his wife willingly consents to do –see Nedarim (20b) regarding Tisha Midos that a man is not allowed to force his wife to have intercourse (i.e., rape or even intimidate her).  Nor is it the view of the halacha.
Nedarim (20b): And I will purge out from among you the rebels and them that transgress against me (Yechezkiel 20:38). R’ Levi said these are the children that result from 9 improper types of intercourse.  They are children born of a fearful relationship, rape, a hated wife, one whose husband was under the ban, when intercourse was done by mistaken identity, when they were fighting, when they were drunk, when he mentally planned on divorcing her, from a promiscuous  relations and a brazen woman.
This is also stated in Eiruvin
Eiruvin (100b): It is prohibited for a man to force his wife to participate in the mitzva of intercourse… Whoever forces his to wife to participate in the mitzva of intercourse will have children who are unworthy. What is the proof? It is Mishlei (19:2): Also without consent the soul is not good. It was also taught in a braissa: Also without consent the soul is not good – that is referring to a man who forces his wife to participate in the mitzva of intercourse.
This is also the halacha as stated in the Rambam and Shulchan Aruch
Rambam(Hilchos Ishus 15:17):…. Furthermore he should not rape her or force her to have sex. Rather he should have sexual relations with her only with her consent and only in the context of pleasant conversion and joy.
Shulchan Aruch(E.H. 25:2): A man should not have sex with his wife unless she is willing. If she is not willing he should placate her until she is willing. …
Shulchan Aruch(O.C. 240:10):  If he is angry with her it is prohibited to have intercourse until he has placated her. He is able to speak with her prior to intercourse until she is willing
This idea that a wife is a sex slave or a mere tool for obtaining spirituality is clearly denounced by the Steipler and other major rabbinic authorities.
Steipler(Igros Kodesh #1:2): The actual behaviors involved in intercourse of the mitzva of onah are explained in the Siddur of the Yaavetz in his discussion of the halachos of Shabbos night. Please study that well. What he says there is the actual halacha and not just advice or custom.  That is because according to the halacha it is prohibited to have intercourse in a manner that the woman is not satisfied. The husband is required to satisfy her with hugs and kisses until she is aroused to want intercourse. Otherwise the intercourse is equivalent to placing her before a lion who mangles its prey before it eats as is explained in Pesachim (49). [It is a terrible crime to deny that which the wife has rights to - even if he is doing this out of piety and asceticism.  That is simply because stealing from his wife cannot be justified for the sake of  being pious. In fact he is stealing from her and treating her as a captive slave]. Furthermore when he has intercourse against her will the resulting children are considered sinners and rebels which is called in Nedarim (20b)  bnei anusa (children of rape)…. . She will be pained and embarrassed and will cry in private and her tears will not be unanswered by Heaven because the Gate of Tears is not locked. Our Sages say in Bava Metzia that a man should always be careful with the honor of his wife because she readily cries. Look there... There is no question that judgment will be aroused against him and he will not merit to have Divine assistance either in in material needs or in spirituality. And this that he imagines that his actions increase his spiritual level - this is simply a worthless and false fantasy because he is sinning and transgressing by this defective and impure actions - not becoming elevated. It is explicit in Shulchan Aruch (O.C. 240:8) that sexual intercourse should only be done after placating his wife and getting her to want it. Because otherwise it is prohibited without her consent as is stated there in the Shulchan Aruch and the words of the Siddur of the Yaavetz - which are the true halacha of the Torah….
However there are views that the requirement of consent is only concerning a wife who is normally available except when she has a reasonable excuse such as not feeling well. But in regard to a wife who refuses simply because she wants to irritate her husband i.e. a moredes - it would be permitted to force her to have intercourse because he has acquired her. This seems to be not only the view of the Netziv but also the Atzi Arazim (E.H. 25) who says it is the view of the Rambam and Shulchan Aruch and others.  He extends this to include sodomy - as a literal understanding of Nedarim (20b) indicates. The Rosh (Kesubos 5:32) also permits forcing a moredes as does Rabbeinu Yeruchim (Nesiv 23:8), Mordechai (Kiddushin 530), Ran(Nedarim 20b), Bach (E.H. 25:1), Shita Mekubetzes(Nedarim 20b) and Tur (E.H. 77). Clearly they understand that kinyan is an actual purchase of the women's sexuality and not simply a symbolic gesture to signify that she is now prohibited to other men. They view that as long as the wife is respectful of the husband's rights to her - then the husband needs to be sensitive and not force her to do anything she doesn't want. But if she is a moredes that requirement no longer applies. It is also conceivable that these views are no longer relevant to modern times when the status of women and marriage have changed significantly This requires additional study and consultation with your own rabbi. See also Yaskil Avi (5:69) that when the husband makes excessive demands on his wife - she is not a moredes for refusing.

Bottom line. We know that one term used for marriage - that a man is mekadesh (sanctifies) a woman – means that she is prohibited to have sexual relations with any other man. But the second term used for marriage – kinyan presents problems. If a marriage through kinyan is not acquisition in the sense of ownership, what does kinyan mean?

I just came across the following academic article which offers an answer which seem consistent with the rabbinic texts. It suggests that kinyan means “subordination” not “ownership”. This is just the summary that she presents at the end of the article.

T.M.Lemos: Were Israelite Women Chattel 241 Conclusion As should by now be clear, although I have argued against the idea that women in ancient Israel were property, my purpose has not been to assert instead that relationships between women and men in ancient Israel were at all equal. While Israelite society was governed by different hierarchies, and gender binaries were not always the most important set of oppositions, 42 the extant evidence in my view leaves little doubt that wives were subordinate to husbands and daughters to fathers. In the case of wives, however, this subordination is not best understood in terms of ownership or a property relation. If Israelite texts themselves consider the status of wives to be different from the status of slaves, and if wives could not be purchased, sold, or devolved, it seems inaccurate to state that wives in ancient Israel were “merely chattel,” as scholars not infrequently do. Recognizing instead that the concept of subordination is what illuminates relations between women and men is important because it allows us to compare the subjugation of wives to the subjugation of other classes of Israelites, including that of free men to other free men. All subordination is not equivalent, and one might be dominant in one scenario and subordinate in another, as was the case, too, with free women, who might be dominant in relation to their children, slaves, or even certain free men, but subservient to their husbands. In my view, understanding Israelite women as property, whether in general terms or in relation to their sexuality, is not only inaccurate but is also less useful heuristically than what I have proposed. Rather, it is in probing the nature of hierarchies and relations of dominance that we come to understand better the nuances of family dynamics, community bonds, and social organization in ancient Israel and in the wider ancient Near East.
Onah - the obligation of the husband to provide sexual satisfaction to his wife is greater than the wife's obligation to the husband. In other words the man in regards to sexual relations is more a slave to the wife than she is to him.

Rambam (Hilchos Ishus 12:1-2): 1) When a man marries a woman – whether she is a virgin or not or whether she is an adult or child or whether she is a convert or not or a freed slave – he is obligated in ten things and he has rights in four things. 2) Of these 10, 3 are Torah obligations – feeding her, clothing her, and having sexual relations with her. The 7 Rabbinic obligations which are inforced by beis din – even if not stated explicity – include the basic kesuba, and conditions of the kesuba. The latter includes the obligation to cure her from sickness, to redeem her from captivity, to bury her when she dies, when he dies she is to be maintained from his wealth and can remain in his house as long as she remains a widow. Their daughters are likewise maintained from his wealth after he dies until they gets engaged. Their sons are to inherit her kesuba beyond the portion of inheritance they received with their brothers.

Rambam (Hilchos Ishus 14:7): It is forbidden for a man to deprive his wife of her conjugal rights. If he transgresses and deprives her of these rights in order to cause her distress, he violates one of the Torah's negative commandments, as [Exodus 21:10] states: "Do not deprive [her] of her sustenance, garments or conjugal rights."12 If he becomes sick or his virility is weakened, and he is unable to engage in sexual relations, he is given a period of six months13- for [a woman is never required to wait] longer for her conjugal rights than this - in the hope that he recovers. Afterwards, the prerogative is hers [whether to remain married] or whether he must divorce her and pay her [the money due her by virtue of her] ketubah.

Rambam (Hilchos Ishus 14:2): A wife has the right to prevent her husband from making business trips except to close places, so that he will not be prevented from fulfilling his conjugal duties. He may make such journeys only with her permission. Similarly, she has the prerogative of preventing him from changing from a profession that grants her more frequent conjugal rights to one that grants her less frequent rights - e.g., a donkey-driver who wishes to become a camel-driver, or a camel-driver who wishes to become a seaman.3 Students of the Torah may, however, depart for Torah study for two or three years without their wives' permission. Similarly, a wife cannot prevent a husband who is pampered and indulged from becoming a student of the Torah.

Beis Yosef (E.H. 25): Lust, a child and a wife require a balance – the left pushes away while the right brings close (Sanhedrin 107b). However if he sees that she wants more intercourse because she is dresses up and makes efforts to be noted – then he is obligated to cause her to rejoice with sexual intercourse as is noted in Pesachim (72b) A man is obligated to give enjoyment to his wife even if it is not the time required by halacha and even if she is pregnant. This is the correct text

Tur (O.C. 240): The Ravad asks concerning the gemora "lust, child and a woman – the left hands pushes away and the right hand brings close - since our Sages have specified that sexual relations should be done according to a man's strength as it says in Kesubos – then what significance is there for the pushing away of the left hand and the bringing close of the right hand? He answers that this dialectic of the left and right hands applies only in the case of tayalim for whom the sexual obligation is every day and it means that they should reduce the amount of sexual activity with the permission of their wife and her consent in order that they not be overwhelmed with lust. In contrast Torah scholars should not reduce the amount of sexual intercourse and surely in the case of others such as camel driers and sailors. He also explains that the rights to sexual intercourse (onah) which the Sages specified to fulfill the desires of the wife are not to be reduced without her consent but if it is necessary to increase the amount of intercourse in order to be saved from sin – he has the right. In this manner they warned about fighting the evil inclination and he should not give into to all his lusts but rather the left should push away i.e., he should not eliminate sexual intercourse completely because we are concerned that in fighting his lusts he might want to eliminate his obligation to his wife (onah). In addition he explains that the frequency of sexual intercourse that the Sages fixed – was not meant to be the absolute maximum – but rather what a woman would typically be satisfied with. However if he sees that she wants more by the fact that she goes out of her way to look attractive and acts as if she wants more attention – then the husband is obligated to rejoice with mitzva with her (sexual relations) as is stated in Pesachim, Rava said that a man is obligated to rejoice with his wife in the matter of mitzva – even if it is not the time specified by her rights to sexual intercourse (onah). And this is true even if she is pregnant and she needs sexual attention. Thus it says that if a person knows that his wife fears sin and yet does not have sexual relations with her is called a sinner. Now if this was said when he is obligated to her – then it is obvious that he is a sinner since it is a Torah obligation – but it is referring even if it is not the time of his obligation. Our Sages also said that a man is obligated to have sexual relations with his wife before he leaves on a journey even if it is close to her menstrual period. We also see in mesechta Kalla, "What should a man do in order that he has sons? He should do the will of Heaven and the will of his wife." The will of Heaven means that he should give generously to the poor. The will of his wife means – means that he should seduce her during sexual intercourse. Rabbi Yehoshua said it means he should give her joy during sexual relations. And since he is required to fulfill is wife's desires and to cause her rejoicing whenever she wants it – therefore a man is warned to resist with the left from concern that he will end up doing more than is necessary and he will be drawn after frivolities and hedonism.

Steipler(Igros Kodesh 1:4):[[ 4) While it is true that many talmidei chachomm conduct themselves in an ascetic manner in a number of intimate things – but that is only with the complete agreement of his wife and with her forgiveness with a full heart. And this agreement comes in most cases after it is explained to her that in truth her husband loves her and it is only for the sake of heaven that he is restraining himself. Or alternatively she married someone who is known as a tzadik whose reputation compensates for her loss of intimacy with him. But G-d forbid that the husband should conduct himself as an ascetic when it causes pain to his wife who is dependent upon him and does not forgive him whole heartedly concerning that which he is obligated to do for her.

Igros Moshe (O.C. 6 5.2): [Menachos 43b It was taught: R. Judah used to say, A man is bound to say the following three blessings daily: who has made me a Jew’, ‘. . . . who hast not made me a woman’; and ‘ . . . who hast not made me a brutish man’. R. Aha b. Jacob once overhead his son saying the blessing … who hast not made me a brutish man’, whereupon he said to him, ‘And this too!’ Said the other, ‘Then what blessing should I say instead?’ [He replied,] . . . who hast not made me a slave’. And is not that the same as a woman?[Rashi explains because in terms of the obligation of doing mitzvos – a woman and a slave are equal]— A slave is more contemptible.] Look at Rashi (Menachos 43b) who explains in his first explanation to the question of saying a beracha “who has not made me a slave” is the same saying “who has not made me a woman", that “the wife is also a slave to her husband as a slave is to his master.” If I weren't afraid I would say that it is necessary to erase the first explantion of Rashi. Because G-d forbid for Rashi to say this ridiculous statement. That is because according to the Torah there is no obligation for the wife to do anything for the husband except for having normal marital relations. And even in regard to intercourse, he is in fact more obligated to her because he also has a negative Torah commandment not to deprive her of sexual satisfaction. In fact it is only a decree of the Sages that requires that her work belongs to her husband. Corresponding to this requirement to work for him, he is required to feed her. But the only work she is obligated to do is house work and not to work in the field. She also has some obligation regarding wool - which is an easy job that women typically do. See Shulchan Aruch EH simon 80. Her meals are his obligation since she should not have it any worse than her family and his family and certainly not less than what she typically eats. Similarly he is obligated to provide her clothing according to what the women of that city typically get as well as according to the standard of his and her family. That is because she is to go up in her standard of living with him and not go down. In addition he is obligated to honor her and he cannot leave the house without her permission except to go to his job that is known to her. In fact we see from all this the opposite of her being his slave. He is obligated to do all the work to earn a living as is stated in the Kesubah. Even if it means hiring himself out according to Tosfos (Kesubos 63). Thus we see that the husband is more of a slave to her then she is to him. This Rashi requires further study (tzorech iyun gadol).

Please keep in mind that there are other views and other factors in deciding practical halacha concerning this issue - please consult with your personal rabbi.

Netziv (Meishiv Davar 4:35): Question: You asked a second time to discuss what does it mean that a man acquires (kinyan) a wife? Why and for what purpose is she acquired. This is what you wrote in the first letter in which you noted that according to the Torah a man makes no acquisition of the woman except in respect to intercourse – however aside from intercourse there is absolutely no acquisition. As a consequence if she makes a neder (vow) and says that she is prohibiting him from the pleasure of intercourse with her – there is no need to nullify the neder. But she can be pressured to have intercourse - in spite of the neder - because for that purpose she was acquired by her husband. Answer: This matter is very clear. This that it says in the Torah that the wife is kinyan kaspo (acquired with money) and also this that we find that the wife of a man is his slave and maidservant – the intent is clearly that she is like his slave and maidservant – but not literally so. Just as the work of a slave’s hand belongs to his master so is his wife regarding intercourse but not in any other aspect. A clear proof that a wife is not literally a slave to her husband is that our Sages say that according to the Torah, the work of her hands does not belong to her husband. But how do our Sages know this. Is it stated clearly in the Torah? But doesn't the Torah say that she is kinyan kaspo (acquired by money) which is the same description given for a slave and maidservant? So what is the source that her work does not belong to her husband? In fact let’s reverse the question, how do we know that his wife is obligated to him regarding intercourse and therefore can not prohibit herself sexually to her husband. There is no problem if he was the one making the neder and said that he is prohibiting her from having intercourse with him. Of course the neder would not be valid because we have a clear Torah verse prohibiting him from diminishing her rights to sexual intercourse. And even according to the view that that verse is only talking about his obligation to cloth her, nevertheless the neder is still not valid because he is obligated to satisfy her sexually from a kal v’chomer. As we see in a braissa in the Mechilta (Shoftim). Rav Yonason said “she’era kesusa” is referring to clothing which is appropriate for her body. If she is young she should not be given clothing for an old person. Additionally that this verse can mean that she should not be given clothing for the summer in the winter and vice verse…. And how do we know that he needs to feed her?…How do we know intercourse?. There is a kal v’chomer. And those things which she didn’t get married for you can not prevent her from having, those things for which she did marry to get she surely can not be prevented from having. (I speak further about this in my sefer HaEmek She’ela (6:1). In contrast regarding the wife - she can not withhold the pleasure of intercourse from the husband. So what is the source that says she is required to have intercourse with him? Perhaps it is from the fact that she is called “kinyan kaspo” (acquired with money) and that she is owned by the husband also in regard to everything else like his maidservant? But that is clearly not so and it is a elementary from the verse “When a man takes a wife”. Why does it end “And he has sexual relations with her” – and mentions nothing else? From this we learn that only for that particular aspect i.e., sexual intercourse she is acquired by him like a maidservant to serve him – but not for anything else….The kinyan (acquisition) of the man is only concerning the sexuality of wife. This is not a question regarding an unmarried woman according to the view of the Rambam who says it is prohibited to have intercourse with an unmarried woman. But even according to those who disagree with the Rambam – having intercourse with an unmarried women is only optional - but she is not obligated to have intercourse with him. And if he forces an unmarried woman to have intercourse – G-d forbid - then he is required to pay her for shame and degradation. Forcing an unmarried woman is like theft and like beating someone. In contrast his wife who is acquired by him – she is required to have intercourse with him any time he wants and if she does not do it willingly he is able to force her – just as a master who forces his maidservant to do who work. All of this is very clear and it isn’t worthwhile going over it again…. It is important to note that a man’s wife is acquired by him and also sanctified by him. It is important to understand that these two things are separate. Acquisition (kinyan) means that she is required to have intercource with her husband just as a slave is required to do his work for his master. In contrast, kiddushin (sanctification) is like hekdesh i.e., she is prohibited to others. The significance of having two separate aspects is that from the point of view of the wife being acquired to her husband – it is considered theft if she gave her love to someone else and did nothing else. This would be like a slave who works for someone other than his master at a time when he had work to do for his master – this is pure theft. On the other hand purely from the point of view of acquisition, if her husband gave her permission to have intercourse with someone else it would be permitted – just as a slave who was permitted to work for someone else. Consequently that is why she is also sanctified (mekudeshesh) from which there is no escape except by receiving a Get from her husband or if he dies. However from the pure perspective of sanctification, I would not know that she has any obligation or that she is acquired by her husband. I would only know that she is prohibited to others through the sanctification. Consequently that is why she also has to be acquired. I have already written in the name of the Rambam that if one sanctifies an unborn baby that the kiddushin is valid and the baby is a married woman and is prohibited to others – but the baby is not also acquired by the husband. Consequently if a man sanctifies a woman who is prohibited to him by a negative commandment, she is definitely not acquired by him but she is in fact sanctified to him. Therefore anyone else who has intercourse with her is committing adultery….In summary, there is no doubt that a wife is only acquired (kinyan) by her husband concerning her sexuality and nothing else and there is no reason to repeat this again.

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