Kiddushin and Consent

Kiddushin and Consent

(קידושין דף ב עמוד ב)

וניתני הכא האיש קונה משום דקא בעי למיתנא סיפא וקונה את עצמה בדידה תנא נמי רישא בדידה וניתני האיש קונה ומקנה משום דאיכא מיתת הבעל דלאו איהו קא מקני מן שמיא הוא דמקני לה ואי בעית אימא אי תנא קונה הוה אמינא אפילו בעל כרחה. תנא “האשה נקנית” דמדעתה אין שלא מדעתה לא.¹

But, let it state here, “A man acquires”? Because it wants to teach the second clause, “and acquires herself,” which refers to her [the woman], it therefore teaches the first clause also in reference to her. But, let it state here, “A man acquires”? Because it wants to teach the second clause, “and acquires herself,” which refers to her [the woman], it therefore teaches the first clause also in reference to her. If you want you can say, if it had taught “he acquires” I might have thought, even against her will, hence it taught “a woman is acquired,”- with her consent, but not without.

Structure or Meaning?

The second segment of the opening sugya of Kiddushin continues the comparison between the opening phrase of the masechet האשה נקנית and the opening phrase of the second perek האיש מקדש. Having clarified the significance of the terms kinyan and kiddushin in the first segment, the sugya now turns its attention to the first word in each of the phrases: why does our Mishnah focus on the woman האשה while the Mishnah in the second perek focuses on the man, האיש?²

As we read through the series of questions and answers in this longer sugya, I ask the class to pause and anchor themselves before moving into the next section. In the first few lines of the Masechet, the students encountered four questions and answers. In the flurry of “dialogue,” a reader can lose sight of the sugya’s arc. Reflecting back, we see that, until now, we have focused on the word נקנית. We now focus our attention on the word האשה. Realizing this, we can begin to divide the sugya into more easily manageable sections. While the first section³ explored the word נקנית (the second word of the Mishnah) we are now exploring the word האשה (the first word of the Mishnah). At this point students begin to realize that the sugya is analyzing the words of the opening sentence of the Mishnah.

Reverting back to our study of the Mishnah itself, we recall that the it began with a “wordy” introductory sentence: האשה נקנית בשלש דרכים וקונה את עצמה שתי דרכים. This sentence does not have a parallel in any of the other mishnayot and does not relate to the entire series of mishnayot concerning kinyanim. Rather, it only serves as an introduction to the first half of the first Mishnah of the perek. Since students are trained to assume the parsimoniousness of sacred texts and note the seemingly superfluous words in those texts, they, if prompted, wonder, “Why include this lengthy introduction in the Mishnah?” Recalling that question as they work through the current section of the sugya, students can begin to decipher the organization and structure of the Mishnah’s unit. The sugya is organized as a conceptual and midrashic analysis of that first mishnaic sentence, האשה נקנית בשלש דרכים וקונה את עצמה בשתי דרכים. With that in mind, students can better anticipate what is to come. The Gemara is now analyzing the first word of our Mishnah, האשה, asking why it describes the woman’s involvement in the marriage rather than the man’s.

The Gemara proposes two answers to this question. The first draws on structural considerations. In order to maintain consistency between the reisha, which teaches about the initiation of marriage, and the seifa, which teaches about the end of marriage, the Mishnah uses the female האשה. The reisha and seifa are thus structurally parallel. If the Mishnah were written from the husband’s perspective, we could not maintain this parallel structure because, while the husband does actively release the wife via the get, his death – the second way to end the marriage – does not involve the husband’s agency.⁴

The second answer of the Gemara is a statement of halakha and of values. It proposes that the Mishnah highlights the woman (האשה) in order to dispel the idea that a woman can be betrothed against her will (בעל כרחה) or without her consent (שלא מדעתה).⁵ Implicit in this answer is a concern that, had the Mishnah said האיש קונה, the reader might conclude that the man can perform the kiddushin without the woman’s consent.⁶

I am curious to hear which of these two answers resonates more strongly with students. Invariably, the second answer resonates with a larger proportion of the class because it is values driven and supports the autonomy of the woman. Some students, however, appreciate the structure and order that is highlighted in the first answer. After some discussion, the collective intuition is that the linguistic, structured first answer is more likely the accurate explanation for the Mishnah’s language while the second answer is more meaningful. What motivates each of these two answers? The class moves forward with a feeling that there is something interesting here, but we have not fully explained it.

Deliberate Disorder

Once we complete this segment of the Gemara in class, we briefly review the opening two segments of the sugya.

1. What word of the Mishnah does the first segment explore? (נקנית)
2. What is the central idea that the Gemara conveys in that segment? (מעיקרא תני לישנא דאורייתא ובסוף תני לישנא דרבנן)
3. What word of the Mishnah does the second segment explore? (האשה)
4. What central idea does the Gemara conveys in that segment? (שלא מדעתה לא ,מדעתה אין ).

Students are now primed to anticipate the next step of the sugya. When prompted, students say, “something about שלש.” We read the question מאי איריא דתני שלש ליתני שלשה (why does the Mishnah use the feminine שלש rather than the masculine שלשה)? This strikes students as a picayune question. Before engaging the details of the next section, I direct the conversation back to the overall arc of the sugya. Often, although not always, a student or two will realize that the sugya seems to be out of order. The sugya’s exploration begins with נקנית, continues with האשה, and proceeds to שלש, followed by דרכים. They are gratified to hear that the Rashba raises that very issue.⁷

Citing his teachers (Ramban)⁸ Rashba writes that the author of the sugya intentionally chose not to ask about the word האשה at the opening of the sugya. Had he asked that question, we would have provided the obvious answer: to ensure that the language of the reisha and seifa are parallel (in fact the first answer in our segment). This would have preempted the need to ask about נקנית and מקדש because the same answer would apply to that question as well.

Rashba is puzzled by his teachers’ answer for two reasons. First, one answer that resolves multiple questions attests to the strength of the answer rather than its weakness. Furthermore, if the sugya was intentionally misordered, that suggests that the one asking the questions already knows the answers and is deliberately manipulating the sugya! If that is the case, why is the ba’al ha’sugya asking questions as though he doesn’t already know the answers?

This question of the Rashba is highly suggestive for students. Students are often bothered by the level of detail of the questions in the sugya (שלש or שלשה and דרכים or דברים) and why it is necessary to “spend so much time” on each of these words. The Rashba acknowledges that something else must be happening here. This provides an opening to ask students how they generally understand the שקלא וטריא (the questions and answers or the give and take) of any sugya that they have learned. It is easy to understand that students sometimes feel frustrated by the give and take in the sugya. Some of the questions resonate and feel like strong, authentic questions. In this sugya I find that students generally consider the questions about the difference between נקנית and מקדש as well the difference between האשה and האיש to be strong questions although there may be some difference of opinion. On the other hand they usually do not feel this way about the questions regarding שלש and שלשה or דרכים and דברים. In his questioning of the Ramban, the Rashba is naming something in the sugya that also generates discomfort for students.

In response, the Rashba states דמאן דמותיב הוא דמפרק ולברורי דמתנינין. In this sugya, the one who is asking the questions is also providing the answers in order to shed light or clarify the meaning of the Mishnah. This sentence is paradigm shifting for students. Most of us were either explicitly taught or we intuited that the Gemara is a record of conversations that took place between rabbis studying together in the beit midrash in Bavel, and my students generally believe the same thing. Unless directed to do so, we tend not to distinguish between the styles of different sugyot. Yet, invariably, after internalizing this sentence of the Rashba, a student or two will notice that our Gemara has not mentioned the names of any Amoraim. There is no conversation between nor citation of any of the common names that we associate with sugyot — no Rav or Shmuel, no Raba and Rav Yosef, no Rava and Abaye. This sugya is different. (Come to think of it, are other sugyot different in this way and I have just never noticed it?) Our sugya, says the Rashba, was written by one person who both asked and answered the questions in the Gemara and did so with forethought, precision, and intention. Who is this person? What did he intend in structuring the sugya this way? More immediately, how does this point help answer the question regarding the “misordering” of the sugya?

Rashba explains that the question וניתני האיש קונה (why is the Mishnah written from the perspective of the woman rather than the man) לית לה עיקר has no foundation. Writing from the perspective of the man would require that the sentence be longer i.e האיש קונה את האשה and we would have gained nothing by doing so. The current formulation is more concise. The author chose to open the sugya with a strong question and therefore reordered the sugya to accomplish that. Since the question of נקנית versus מקדש is the stronger of the two questions it is therefore granted primacy of place.

We can summarize as follows: according to the Ramban, the sugya was organized so it could provide the ideas and answers that the author sought to share, one that does not accord with the order of the Mishnah. For Rashba, the relative strength of the questions caused the reordering of the sugya. For our purposes, the central point is that both agree that the sugya was designed with intention and was written in a question-and-answer form for didactic purposes. Many students recognize this type of writing from their little exposure to Plato. The purpose of drawing that reference for students is not to say that the Gemara is written as Platonic dialogues. Rather, it helps to highlight that there are different styles of content in the Gemara. Sometimes, the Gemara does “record the conversation” that took place between Tannaim or Amoraim. At other times, the ba’al ha’sugya is commenting on mishnayot, braitot, or memrot. Here, the Gemara is presenting an opening sugya to orient us to the masechet that we are now beginning to study. This formulation supports the idea that opening sugyot of masechtot or perakim are often written as introductions for topics that will be forthcoming in the masechet.⁹

The Ramban and Rashba help us tackle the challenge of explaining the questions in this sugya. We expect the Gemara to raise significant contradictions between two texts or give meaning to seemingly extra words in the Torah. In this sugya the Gemara asks about the use of שלש as opposed to שלשה and דרכים as opposed to דברים. As noted above, different sensibilities emerge in the discussion but, invariably, some questions feel much stronger than others to the different students. The Ramban and Rashba sense something about this sugya and, between them, we understand that the Gemara sometimes raises questions not because the question is so strong but in order to set up the answer, the understanding, or the interpretation that it seeks to convey. Students readily identify with this in the spoken word and sometimes in the written word as well. When we speak, we often ask questions rhetorically (“so what made me behave in this way? Let me tell you what happened…”) in order to engage the listener and keep the presentation moving forward. If students accept the possibility that this Gemara is asking certain questions rhetorically in order to make its point, they have the ability to transfer that capacity to other sugyot and explain the different ways and purposes for which the Gemara asks questions.

Marital Consent – מדעתה אין שלא מדעתה לא

While the sugya contains many questions and answers, the Rif encapsulates the first daf of the masechet in a single point: בעל כרחה לא ,מדעתה אין, that the woman’s consent is required for a valid marriage.¹⁰

For the Rif, this is the central idea of the sugya, or at least the practical halakha that can be drawn from the sugya. Other Rishonim are troubled by the need for such a sentence at all. Had the Mishnah stated האיש קונה from the perspective of the man would we have actually inferred that the man can take the woman without consent? Does the Torah contain a concept of coerced marriage?¹¹ Are any coerced transactions valid?

As a high school educator my preparation for and teaching of the concept of מדעתה אין שלא מדעתה לא draws on Lee Shulman’s idea of pedagogical content knowledge (PCK).¹² PCK is a type of knowledge unique to the classroom teacher. It is what makes the science teacher a teacher rather than a scientist or, in our case, a Gemara teacher rather than an academic or a rosh yeshiva (although these labels can, of course, overlap). PCK is the synthesis of a teacher’s pedagogic knowledge with an awareness of the types of students in the class and their families, the students’ skill levels, and the teacher’s goals for them as students of Gemara in general and in this sugya in particular; those types of knowledge are combined with the content knowledge of the sugya and its various commentaries and analyses. To clarify how PCK can shape the teaching of Gemara, I will explore three possible paths to explain this sentence in the sugya.¹³

1. In the classic beis medrash setting, the shiur focuses on the Rashba’s response to this question:

ואישמיטתיה “תלוה וזבין זביניה זביני” ו”תלוה וקדישו קדושיה קדושין” דאגב אונסא דזוזי גמרה ומקנה נפשה הוי כאמימר דאית ליה הכין בפרק חזקת (בבא בתרא מח:) והכא לאו בעל כרחו לגמרי קאמר אלא כי האי גוונא. וקיימא לן כרב אשי דאמר התם באשה אינה מקודשת דהוא עושה שלא כהוגן [בעשו לו שלא כהוגן], ודוקיא דהכא כרב אשי אתיא. ואמימר מתרץ לה כתירוצה קמא, משום דתנא סיפא בדידה. כך נראה לי.

The Gemara here omits the notion that “if one is coerced to selling, the sale is valid” and “if one is coerced into betrothal, the betrothal is valid” because in that case due to financial pressure she resolves to become acquired to the man. This follows the view of Ameimar, who holds this position in Bava Batra 48b. However, the case here [in Kiddushin] is not referring to absolute coercion, but rather to a case similar to the above [where there is some coercion, but not total force]. But we rule in accordance with Rav Ashi, who states there (Bava Batra 48b) that regarding a woman, she is not betrothed, because the man is acting improperly. The inference here aligns with Rav Ashi. And Ameimar would align with the Gemara’s first answer, that the seifa also teaches about her. This is how it appears to me.

Rashba cites the case (BB 48b) of a person who, under external pressure, agrees to sell his property. The Gemara concludes that such a sale is valid because a seller is always under some degree of financial pressure; if not for that pressure, the owner would hoard all of his possessions and never sell any objects that he owns. A sale performed under clear external pressure from the buyer is a difference in degree, not in kind, of all sales. Regarding kiddushin, however, Amemar and Rav Ashi disagree. Amemar believes that betrothal under pressure is valid, similar to a sale. Rav Ashi says that the kiddushin is invalid because the rabbis invalidated the kiddushin in response to the man’s inappropriate behavior: הוא עשׂה שׁלא כהוגן לפיכך עשׂו עמו שׁלא כּהוגן – ואפקעינהו רבּנן לקידושׁיה מיניה (Bava Batra 48b).

According to Rashba, our sugya’s insistence that the kiddushin be consensual follows the opinion of Rav Ashi, who invalidates coerced betrothal. He goes as far as to suggest that the two answers of our Gemara reflect the respective views of Amemar and Rav Ashi in Bava Batra. According to Amemar, coerced betrothal is valid; therefore, he must follow the first answer of our sugya, which explains the style of the Mishnah as structural: it is written from the woman’s perspective so that the style of the reisha and seifa of the Mishnah are parallel.

According to the Rashba, the principle of שלא מדעתה לא ,מדעתה אין refers to the case of a woman who accepts kiddushin under pressure from the husband. Such kiddushin was declared rabbinically invalid by Amemar in Bava Batra. This second answer in our Gemara follows that view. In the Beis Medrash, this view of the Rashba leads to an extended lomdus shiur comparing the level of da’as (consent) required for financial transactions and for kiddushin.¹⁴

As a younger teacher, closer to my yeshiva years, I assumed that I should teach this Rashba and some of the Acharonim’s analysis because that is “where the action is.” Today, I prefer to focus on the Gemara itself and the Rishonim or Acharonim that aid in understanding the detail and flow of the sugya. Conceptual analysis is crucial but should be connected to the sugya. The Gemara should be more than a springboard for conceptual analysis, and the conceptual analysis should not be studied independent of the arc of the sugya.

2. Meiri offers a different explanation for the principle of שלא מדעתה לא ,מדעתה אין:

אבל מה שיצא לנו ממנה לענין פסק הוא שהאשה אינה מתקדשת בעל כרחה ואע”פ שאין לשון המקרא מוכיח כן להדיא שהרי “כי יקח” אף על כרחה משמע וכן “ובעלה” וכל שכן שהשטר בקדושין יוצא לנו מהיקש של גט וכבר ידעת שהאשה מתגרשת בעל כרחה מכל מקום אין זה צריך קרא שאם כן לא הנחת בת לאברהם אבינו.

However what emerges for us in terms of legal ruling is that a woman cannot be betrothed against her will. And even though the language of the verse does not prove this, for “When a man takes” suggests she is betrothed even against her will, and “And she becomes his wife” suggests this as well. And betrothal against her would certainly be supported by the marriage contract, which is derived from get, in which a woman can be divorced against her will. Nonetheless, the idea that a woman cannot be betrothed against her will does not need a verse to support it, because if it were not so how would the daughters of Avraham our father survive.

The Meiri states that the sugya teaches but one halakha: that a woman may not be betrothed against her will. He then explains that although there is no biblical source for this principle, we know it to be a d’oraita principle even without a textual source. This must be so because were this not the case ‘how would the daughters of Abraham survive?’ Meiri makes the unusual claim that the woman’s consent for marriage is so obvious that it does not require textual support. This is so despite the fact that there is textual evidence to suggest the reverse: a man can divorce his wife without her consent and the language of כי יקח איש אשה can be interpreted as validating even a kiddushin performed under pressure (i.e, the man can “take” the woman as his wife). Meiri is suggesting that שלא מדעתה לא ,מדעתה אין means that reason dictates that marriage requires the consent of both parties. The Mishnah highlights the woman (האשה נקנית) in order to bring this point to our attention.

At this point, I can decide to teach the Rashba or the Meiri or both. What factors should I consider in deciding what to include or not include in the class curriculum? Those considerations, together with the content knowledge itself, comprise the pedagogical content knowledge of the teacher. PCK “embodies the aspects of content most germane to teachability…the ways of representing and formulating the subject that make it comprehensible to others . . . [It] also includes an understanding of what makes the learning of specific concepts easy or difficult: the conceptions and preconceptions that students of different ages and backgrounds bring with them to the learning.”¹⁵ This is the unique craft of the teacher.

I almost always decide to teach neither the Rashba nor the Meiri. Before explaining the path that I do take, here are the deliberations that lead to this decision. Meiri’s idea is tantalizing. While the ba’al ha’sugya cannot bring a source for requiring the woman’s consent to marriage, the concept is so compelling that it does not require a source from the Torah! It has the status of a Torah precept and it is derived from reason. We do have a few examples of this in the Talmud (פה שאסר פה שהתיר and המוציא מחבירו עליו הראיה), but they are few and far between. While students in my class would find this rationale compelling, it would also be very difficult to explain why this is an acceptable principle in this instance without also explaining when it is applied and when it is rejected.

More fundamentally, is it in fact the case that the consent of the woman is required for kiddushin to be valid? We find numerous biblical references to a father marrying off a daughter, and it is codified in the Mishnah as well.¹⁶ Rambam (Hilkhot Ishut 3:11) is explicit in his language:

האב מקדשׁ את בתו שׁלא לדעתה כל זמן שׁהיא קטנה. וכן כשׁהיא נערה רשׁותה בידו שׁנאמר (דברים כב טז) “את בתי נתתי לאישׁ הזה לאשׁה”. וקדושׁיה לאביה.

A father may betroth his daughter without her knowledge as long as she is a minor. But when she is a young woman, the authority remains his, as it says “I give my daughter to this man as a wife” (Devarim 22:16). And the betrothal money belongs to the father.

A father is permitted to betrothe his minor daughter without her consent, and the money is his to keep. Recall that the Rashba asks how the Gemara could even consider the possibility of kiddushin without the woman’s consent. Yet, the halakha does not only consider that possibility but actually actually declares that marriage without the woman’s consent exists and is valid even in the case of a minor!

3. This opens a third way to explain the phrase שלא מדעתה לא ,מדעתה אין. It is often noted that the opening sugya of Kiddushin is a Savoraic sugya as found in the writings of Rav Sherira Gaon.¹⁷ The Ramban writes:

מצינו בתשובת הגאונים ז”ל דכל הני דהך סוגיא עד הכא (דבתר הוא הודאה) [הוא דבתר הוראה] ומר רב הונא גאון מסורא איהו תני לה ואיהו דאסר בגטא וביומוהי תקינו תקנתא דמורדת דנהיגו בה הגאונים ז”ל ואפ”ה טרחנא לעיל לפרושא ולמפרך ותרוצי בה [כמו] בגמר’ [דסוגיא] דרבנן סבוראי דוקא היא.¹⁸

We have found in the geonic responsa, that this whole sugya until this point was composed after hora’ah. And Mar Rav Huna Gaon of Sura taught it. And he is the one who was strict with the laws of get. And in his days they decreed the takanta demoredet, that the Geonim z”l followed. Nevertheless, we take effort to explain, challenge, and resolve this, for the Savoraim’s language is as precise as any other sugya.

This sugya was written בתר הוראה, after the close of the Amoraic period. Ramban even names the author of the sugya, Rav Huna Gaon of Sura, who lived in the 7th century. Significantly, he is credited with establishing תקנת המורדת, the takkanah that compelled a husband to divorce his wife who sought a divorce from him, seemingly counter to the idea of the גט מעושה, a forced get which is declared halakhically invalid in the Talmud.¹⁹ If this sugya, which concludes on daf 3b, was subsequently added to the Gemara, then we might suggest that the ‘original’ masechet began with בכסף מנלן on 3b.

Reading that as the opening sugya, we find that Rav used the verses regarding the sale of the Hebrew maidservant as the source for קידושי כסף. The parasha of אמה עבריה describes a father who “sells” his daughter as a maidservant with the possibility of marriage (יעוד) between the “owner” or his son. If unmarried at the conclusion of her service no financial transaction is necessary for her to achieve independence. The verse states ויצאה חנם אין כסף, no money is involved in this circumstance; אבל יש כסף במקום אחר betrothal is achieved through the transfer of money. Deriving קידושי כסף from this source suggests that a father marrying off his daughter is the paradigmatic example of kiddushin. This sharpens the significance of the Gemara’s teaching on 4b in the name of Rabbi Yehuda HaNasi who derives קידושי כסף from כי יקח איש אשה. In this verse, the man is “taking” the woman directly. The father is not involved in this exchange. These two sources reflect two distinct paradigms for kiddushin, one that sees the woman as her father’s daughter and the other where the woman is independent and the couple is together deciding to marry.

Understanding the implications of the different sources cited by the Gemara it is possible that Mar Rav Huna Gaon of Sura selected the source of Rabbi Yehuda HaNasi deriving קידושי כסף from כי יקח איש אשה in our sugya, in order to emphasize the personal relationship between the man and the woman, each an independent agent making a personal decision to marry the other. This is subtly expressed, as suggested in this second segment of our sugya, through the Mishnah’s focus on the woman, האשה נקנית, from which they infer, שלא מדעתה לא ,מדעתה אין, that kiddushin is ultimately validated through the woman’s consent.²⁰

This suggestion is supported by the formulation of Rambam which describes in precisely this way that child marriage lacks the consent (דעת) of the child-wife:

האב מקדשׁ את בתו שׁלא לדעתה כל זמן שׁהיא קטנה. וכן כשׁהיא נערה רשׁותה בידו שׁנאמר (דברים כב טז) “את בתי נתתי לאישׁ הזה לאשׁה”. וקדושׁיה לאביה.²¹

A father may betroth his daughter without her knowledge as long as she is a minor. But when she is a young woman, the authority remains his, as it says “I give my daughter to this man as a wife” (Devarim 22:16). And the betrothal money belongs to the father.

A few paragraphs later, Rambam cites the opening sugya of the second perek of Kiddushin (41a) encouraging personal interaction between the future husband and wife and discouraging or even prohibiting a father from marrying off a minor child. Rambam writes:

מצוה שׁיקדשׁ אדם את אשׁתו בעצמו יותר מעל ידי שׁלוחו. וכן מצוה לאשׁה שׁתקדשׁ עצמה בידה יותר מעל ידי שׁלוחה. ואף על פי שׁישׁ רשׁות לאב לקדשׁ בתו כשׁהיא קטנה וכשׁהיא נערה לכל מי שׁירצה אין ראוי לעשׂות כן אלא מצות חכמים שׁלא יקדשׁ אדם בתו כשׁהיא קטנה עד שׁתגדיל ותאמר לפלוני אני רוצה. וכן האישׁ אין ראוי לקדשׁ קטנה. ולא יקדשׁ אשׁה עד שׁיראנה ותהיה כשׁרה בעיניו שׁמא לא תמצא חן בעיניו ונמצא מגרשׁה או שׁוכב עמה והוא שׂונאה.²²

It is a mitzvah for a man to betroth his daughter himself, rather than through an agent. Likewise, it is a mitzvah for a woman to accept betrothal herself, rather than through an agent. Although a father has the authority to betroth his daughter while she is a minor or a young woman to whomever he wishes, it is not proper to do this, for the Sages commanded that a man should not betroth his daughter when she is a minor until she matures and says “I want this man.” And it is not proper for a man to betroth a minor. And a man should not betroth a woman until he has seen her and she is fit in his eyes, lest she not find favor in his eyes and he will ultimately divorce her or lay with her with hatred.

Indeed, Rambam arguably requires yet a higher and less constrained degree of consent to marriage of the future wife than is required of the future husband:

.אין האשׁה מתקדשׁת אלא לרצונה, והמקדשׁ אשּׁ בּעל כּרחה אינה מקדשׁת. אבל האישׁ שׁאנסוהו עד שׁקדשׁ בּעל כּרחו הרי זו מקדשׁת.
²³

A woman may only be betrothed if she agrees. And if one who betroths a woman by force, she is not betrothed. But if a man is forced to betrothe a woman, she is betrothed.

Conclusion

I have three content goals in teaching this segment of the Gemara. Students should:

1. Understand the two answers of the Gemara and explain the difference between the literary-structural approach (the first answer) and the values approach (second answer).
2. Recognize that the sugya does not follow the order of the words in the Mishnah. The Rashba sees that as an indicator that the ba’al ha’sugya knew what he wanted to say from the start. He designed the sugya in question-and-answer form to make the various points he sought to teach. In fact, no names are mentioned throughout the sugya. Students should see this as a different type of Gemara from an אמר ליה-אמר ליה Gemara which usually reflects an actual conversation between the participants.
3. The statement שלא מדעתה לא ,מדעתה אין in this second segment complements מעיקרא תני לישנא דאורייתא ולבסוף תני לישנא דרבנן of the first segment. Each conveys a central element of Mar Rav Huna Gaon’s understanding of marriage. Financial (biblical) and sacred personal (rabbinic) elements combine to comprise Jewish marriage. As personal commitments between husband and wife (and no longer between husband and father of the wife) the full consent of the woman is necessary to validate the marriage.

Selecting the specific Rishonim and drawing on particular conceptual understandings in order to organize the sugya for student understanding and meaning-making is the particular art of the classroom teacher. In this instance, Pedagogic Content Knowledge includes learning the sugya, with its Rishonim and some Acharonim and, selecting from that learning and preparing those texts, meanings, and concepts for classroom use. Then, based on my assessment of the students in the room and my own understanding of the sugya, select from that content and scaffold the argument to make the elements of the sugya cohere for the students in the class.

This artful curation of the content with our students in mind is a blend and balance that is unique to classroom teaching. It does not aim for objectivity, as an academic might. Nor does it aim for chiddushim as the rosh yeshiva might. It is an attempt to break down a sugya to its elements and use an eclectic range of sources and styles in order to translate the sugya both literally and conceptually into a text full of social and religious meaning for our students. To arrive at this point, teachers should articulate the texts, questions, considerations and deliberations that shaped their learning and, ultimately, the pedagogical decisions and conclusions that they reached.

Finally, in order to develop this type of thinking about the sugya, we encourage our Gemara teachers to write. Writing is a medium through which teachers can sharpen their ideas and become more precise in their formulations. Teachers better understand what they are attempting to achieve when they write their ideas clearly for colleagues to read. While writing is time consuming and, sometimes, fear inducing, teachers and their students benefit from the clarity that is achieved through good writing.

Such writing can strengthen the professionalism and nurture a collaborative spirit among Gemara teachers as well. One’s own writing on a subunit of a sugya can draw responses from other teachers who should be encouraged to and supported in putting their own alternative strategies and PCK down on paper. This could develop into a virtual beit midrash of yeshiva high school Gemara rebbeim and teachers writing and responding to each other about teaching a particular text. This could strengthen the field of Gemara education by developing shared vocabulary and discourse across the profession.

1. Rosh Rashba and Ritva have מדעתה אין בעל כרחה לא in contrast to our מדעתה אין שלא מדעתה לא. We will explore the possible significance of that distinction later.
2. In the first segment the Gemara raised the question וניתני התם האיש קונה. Here the second segment begins with וניתני הכא האיש קונה. Too often students memorize the flow of the sugya and do not pay close attention to the words that they are reading. They sometimes assume that they won’t fully understand the vocabulary of the Gemara and therefore don’t take the time to comprehend the words in the way that they might in their native language. In this instance students know the meaning of the words הכא and התם. Yet they need encouragement to slow down to consider the meaning of וניתני הכא האיש קונה. If הכא means our Mishnah what is the Gemara asking? Why does it not say האיש קונה in our Mishnah rather than…האשה נקנית. In other words the Gemara is asking why the Mishnah uses the word האשה rather than האיש. In contrast the earlier question וניתני התם האיש קונה is structured in exactly the same way but is asking a different question. Why does the Mishnah in the second perek state האיש מקדש rather than האיש קונה? That question is asking about the use of מקדש rather than נקנית.
3. See “On Teaching the Opening Lines of Kiddushin (2a-2b)”
4. The Gemara asks a clarifying question in order to fully explain its first answer. This question וניתני האיש קונה ומקנה requires precise explanation. Students are easily confused about the relationship between the words קונה and מקנה in the Gemara. What exactly is the Gemara suggesting? This is a good opportunity to highlight the use of Rashi for understanding Gemara. Rashi states:

   וניתני הכא האיש קונה בג’ דרכים. ומקנה אותה לעצמה בשתי דרכים. ומשני משום דאיכא בהנהו ב’ דרכים מיתת הבעל.

   Students tend to stop at the period that signifies the דיבור המתחיל of the Rashi. That is how we interpret a period in sentences of any language but the purpose of the period in Rashi is different. It distinguishes between the words of the Gemara and the commentary that Rashi adds. Despite the period though the entire piece is meant to be read as a fluid sentence. To use Rashi properly students must develop the habit of reading through the period and then deciphering Rashi’s explanation. Read in this way we see that Rashi is explaining that the word קונה in the Gemara refers to the (hypothetical) reisha of the Mishnah and מקנה to the (hypothetical) seifa. The Gemara proposed that the Mishnah is written from the woman’s point of view in order to parallel the seifa. The suggested reading is האיש קונה in the reisha and האיש מקנה in the seifa. Rashi fills in the gaps in the Gemara’s question in order to express the question more fully. He then clarifies that the answer to this question begins with the word משום so that we do not mistakenly interpret this clause as further elaboration of the Gemara’s question.

5. See the Rishonim cited in note 1 above.
6. Rishonim ask why this is not a concern at the beginning of the second perek, which states האיש מקדש. See Tosafot, Ramban.
7. The text of the Rashba:

   ונתני הכא האיש קונה. ואם תאמר קושיא זו הוה ליה לאקדומי כסדרא דמתניתין. ויש מרבותינו נר”ו מתרצים דאי אקשי ליה הכי הוה משני ליה משום סיפא כדאמרינן בסמוך ותו לא הוה קשיא אמאי תנא נקנית. דמשום סיפא הוא דלא מצי למיתני מתקדשת. ואינו מחוור דאדרבה כל היכא דאיכא לאקשויי חדא ולשנויי שינויא דמיתרצא ביה כולא מתניתין טפי עדיף מאפושי הויי ופירוקי. ועוד דאם איתא דמקשה הוה ידע פירוקא אמאי מקשה ליה ואזיל. אלא דבהא איכא למימר דמאן דמותיב הוא דמפרק ולברורא למתניתין. ומסתברא דהאי קושיא דקא מקשה תלמודא וליתני האיש קונה לית לה עיקר. דאדרבה האשה נקנית עדיף טפי דאי תני האיש קונה הוי צריך לאפושי בלישניה האיש קונה את האשה אלא משום דאגב מקשה ליה הכי ולא לעיקר קושיא. אבל לעיל קשיא ליה לימא דנקנית משום דבכולא תלמודא קנין אשה בלשון קדושין מפיק ליה משום הכי אקדמה דהאי קשיא והא לא קשיא.

8. The text of the Ramban:

   מאי שנא הכא דתני האשה וכו’. תמיה לי אמאי לא אקשינן וליתני האיש מקדש אסדר’ דמתני’ והדר ליבעי נקנית ומקדש ואפשר דאי אקשי ליה הכי הוה אמר ליה משום סיפא כדאמרינן לקמן בסמוך ותו לא הוה קשי’ ליה אמאי תנא נקנית דמשום סיפא נמי הוא דלא מצי למימר להו מתקדשת וריש’ בלשון קדוש וסיפי בלשון קנין לא קתני ואי קשי’ נך ונימא ליה הכי איכא למימר דעדיפא מיניה א”ל דעיקר קיחה שבכסף קנין הוא

9. Meirav Suissa, “Saboraic Introductory Sugyot in the Babylonian Talmud: Their Contribution to the Tractate” (MA Thesis, Bar Ilan University, 2007) [Hebrew].
10. The text of the Rif:

    וניתני האיש קונה אי תנא האיש קונה הוה אמינא אפילו בעל כרחה תנא האשה נקנית מדעתה אין בעל כרחה לא.

    Students are excited by the simplicity and condensed version of the sugya: “Is this the entire sugya? It would be so much easier to learn the Rif!” This serves as an excellent opportunity for students to understand what the Rif sought to achieve in addition to learning the Rif’s halakhic viewpoint on this or any other sugya. In his Sefer Halakhot or Hilkhot Rav Alfas, the Rif sought to make extended sugyot simple and accessible by highlighting the central point and the halakha that derives from the sugya while omitting most of the give and take of the sugya. In this sense, the Rif’s innovation is contained in that which he omitted as much as by what he included. I point out that for many years the Rif was published as a separate work, and many people studied the Rif in place of the Gemara. This opens a brief discussion about the advantages and disadvantages of learning the Talmudic content in this way.

11. See Rashba:

    ויש מי שהקשה אפילו תניא האיש קונה היכי הוה סלקא דנקנית בעל כרחה דהיכי מצינו מקנה בעל כרחו.

12. Lee Shulman, “Knowledge and Teaching: Foundations of the New Reform,” Harvard Educational Review 57 (1987): 1-22.
13. Machon Siach’s Making Sense project seeks to nurture such “PCK writing” in Gemara and develop it as a professional genre. Many journals focus on curriculum and pedagogy. Many journals focus on Gemara-centered Chiddushei Torah. To my knowledge, there is no sustained effort to write at the intersection of Gemara and pedagogy, specifically focused on content. In other words, each sub-unit within a sugya (two versions of a drasha, a debate between two Amoraim, a particular proof or a series of proofs in a sugya or a comment of Rashi and a question of Tosafot) requires “translation” to prepare the text for the classroom. Our Gemara teaching could be deeply enhanced through “pedagogical content writing” on the various sugyot that are commonly taught in our high schools.
14. See, for example, Kuntresei Shiurim of Rabbi Yisroel Zev Gustmann, Shiur Gimmel, citing the Haga’ot Maimuniyot and Semag cited in Rambam, Hilkhot Ishut 4, Rashi, Kiddushin 44a and Yevamot 19b cited in the sidenote to Kiddushin 2b; See also Rambam Hilkhot Ishut cited below.
15. Shulman, “Knowledge,” 9.
16. Sifrei Devarim 22:16; Ketuvot 46b.
17. Rav Sherira Gaon in his Iggeret writes:

    וכמה סברות קבעו בגמרא הם וחכמים שאחריהם גם כן כגון רב עינא ורב סימונא ומקובלים אנו מן הראשונים שגמרא של תחילת האשה נקנית עד בכסף מנא הני מילי רבנן סאבוראי בתראיי סדרוה וקבעוה וזולתה גם כן

18. Hiddushei HaRamban Kiddushin 3a. See בעל העיטור שער ראשון הכשר הבשר דף ד in the Vilna 1874 edition.
19. Gittin 9:8.
20. The opening lines of the first perek and of the second perek are conceptual mirror images of each other. Our sugya emphasizes the marriage between the husband and the wife while the sugya in the beginning of the second perek teaches prohibitions against the man marrying a woman with whom he is not familiar and against a father marrying off his minor daughter.
21. Rambam, Hilkhot Ishut 3:11.
22. Rambam, Hilkhot Ishut 3:19.
23. Rambam, Hilkhot Ishut 4:1. Some suggest that Rambam follows the view of the Semag cited in Haga’ot Maimoniyot op. Cit. See Kuntresei Shiurim for the Semag, the gloss of R. Yeshaya Berlin who cites the two views of Rashi (Yevamot and Kiddushin 19), Rashba, and Meiri.