הלכות אישות

Before the Torah was given, when a man would meet a woman in the marketplace and he and she decided to marry, he would bring her home, conduct relations in private and thus make her his wife. Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must acquire her as a wife in the presence of witnesses. [Only] after this, does she become his wife. This is [alluded to in Deuteronomy 22:13]: "When a man takes a wife and has relations with her...."

This process of acquisition fulfills [one of] the Torah's positive commandments.1Sefer HaMitzvot (Positive Commandment 213) and Sefer HaChinuch (Mitzvah 552) include this as one of the Torah's 613 commandments. The process of acquiring a wife is formalized in three ways: through [the transfer of] money, through [the transfer of a] formal document and through sexual relations.[The effectiveness of] sexual relations and [the transfer of a] formal document have their origin in the Torah [itself], while [the effectiveness of transfer of] money is Rabbinic in origin.2The Ra'avad and others object to this statement, noting that Kiddushin 4b derives the concept that the transfer of money is an effective means of formalizing a marriage bond from a gezerah shavah, a correlation between two verses in the Torah, indicating that this practice also has its source in the Torah.The Maggid Mishneh and the Kessef Mishneh draw attention to the Rambam's statements in Sefer HaMitzvot (General Principle 2), which state that any law that is not explicitly stated in the Torah, but rather derived through the Thirteen Principles of Biblical exegesis, is considered to be Rabbinic in origin (midivrei soferim). This classification does not, however, in any way diminish the status of this practice, and it is as if it were explicitly stated in the Torah. Thus, a marriage bond formalized through the transfer of money has the same status as one formalized through either of the other means mentioned by the Rambam.Rav Kapach differs and states that the Rambam altered the text in his later years, and the correct version states, "All three are from the Torah." In explanation, he draws attention to the Rambam's Commentary on the Mishnah (Kiddushin 1:1) and to one of the Rambam's responsa, and on this basis differs with the above principle.He maintains that whenever the Rambam uses the expression midivrei soferim, he means that the practice is Rabbinic in origin and does not have the status of Torah law. The only practices that are considered to be ordained by the Torah are those explicitly stated in the Torah or mentioned by the Sages as having the status of Torah law.In this context, he explains the Rambam's approach. Originally [as evidenced by the Rambam's statements in Sefer HaMitzvot (Positive Commandment 213)], the Rambam thought that sexual relations are the only kiddushin that are effective according to the Torah. For not only the effectiveness of the transfer of money, but also that of the transfer of a legal document is derived by the Sages only through Biblical exegesis. Afterwards, on the basis of certain passages that state that the effectiveness of the transfer of a legal document has the status of a Torah practice, the Rambam changed his opinion and wrote that the transfer of a document is also effective according to the Torah. This opinion is reflected in the Commentary on the Mishnah and the original version of the Mishneh Torah. Even later, the Rambam accepted the opinion that the effectiveness of the transfer of money also stems from the Torah itself. This is reflected in Chapter 3, Halachah 20, and the corrected text mentioned above.(See Birkat Avraham, Responsum 44, in which the Rambam's son, Rabbenu Avraham, substantiates Rav Kapach's version of the Mishneh Torah.)This process of acquisition is universally referred to as erusin ("betrothal") or kiddushin ("consecration"). And a woman who is acquired in any of these three ways is referred to as mekudeshet or me'ureset.

Once this process of acquisition has been formalized and a woman has become mekudeshet, she is considered to be married even though the marriage bond has not been consummated and she has not entered her husband's home. Should anyone other than her husband engage in sexual relations with her, he is liable to be executed by the court. If her husband desires to divorce her, he must compose a get [a formal bill of divorce].

Before the Torah was given, when a man would meet a woman in the marketplace, and he and she desired, he could give her payment, engage in relations with her wherever they desired, and then depart. Such a woman is referred to as a harlot.3The Ra'avad and others differ and maintain that a woman is not considered to be a harlot unless she is a professional prostitute. The difference between this approach and the Rambam's involves only the severity of the prohibition. Both agree that sexual relations outside the context of marriage are forbidden. With regard to a pilegesh, a woman one designates as a sexual partner but who is not consecrated as a wife, see Hilchot Melachim 4:4.When the Torah was given, [relations with] a harlot became forbidden, as [Deuteronomy 23:18] states: "There shall not be a harlot among the children of Israel."4Sefer HaMitzvot (Negative Commandment 355) and Sefer HaChinuch (Mitzvah 570) include this as one of the Torah's 613 commandments. Therefore, a person who has relations with a woman for the sake of lust, without kiddushin, receives lashes as prescribed by the Torah, because he had relations with a harlot.

Whenever it is forbidden to engage in relations from the Torah, and engaging in relations makes one liable for karet - i.e., the [forbidden relationships] mentioned in Parashat Acharei Mot, such as a person's mother, his sister, his daughter and the like - these relations are called arayot, and each particular forbidden relationship is called an ervah.5These include incestuous and adulterous relationships as mentioned in Leviticus, Chapter 18. The forbidden relationships that are punishable by execution are discussed in Hilchot Issurei Bi'ah, Chapter 1, and those for which one is liable for karet and for which lashes are given are discussed in Hilchot Sanhedrin, Chapter 19.

There are other women with whom relations are forbidden according to the Oral Tradition; these prohibitions are Rabbinic in origin. These women are called shniyot (prohibitions of a secondary nature). There are twenty such women, including:a) one's maternal grandmother; this prohibition continues upward without interruption: a person's maternal grandmother's maternal grandmother - and also those further removed - are also forbidden;b) the mother of a person's maternal grandfather; this prohibition applies to her alone [and not her forbears];c) a person's paternal grandmother; this prohibition continues upward without interruption: a person's paternal grandmother's maternal grandmother - and also those further removed - are also forbidden;d) the mother of his paternal grandfather; this prohibition applies to her alone [and not her forbears];e) the wife of his paternal grandfather; this prohibition continues upward without interruption; the wife of our Patriarch Jacob is forbidden to any one of us;f) the wife of his maternal grandfather; this prohibition applies to her alone;g) the wife of his father's maternal brother;h) the wife of his mother's brother, whether a paternal or a maternal brother;i) his son's daughter-in-law; this prohibition continues downward without interruption; any one of our wives is forbidden to our Patriarch Jacob;j) the daughter-in-law of one's daughter; this prohibition applies to her alone;k) the daughter of one's son's daughter; this prohibition applies to her alone;l) the daughter of one's son's son; this prohibition applies to her alone;m) the daughter of one's daughter's daughter; this prohibition applies to her alone;n) the daughter of one's daughter's son; this prohibition applies to her alone;o) the daughter of the son of one's wife's son; this prohibition applies to her alone;p) the daughter of the daughter of one's wife's daughter; this prohibition applies to her alone;q) the maternal grandmother of one's wife's father; this prohibition applies to her alone;r) the paternal grandmother of one's wife's mother; this prohibition applies to her alone;s) the maternal grandmother of one's wife's mother; this prohibition applies to her alone;t) the paternal grandmother of one's wife's father; this prohibition applies to her alone.Thus, the categories of shniyot that continue without interruption are four: one's maternal grandmother - this continues upward without interruption; one's paternal grandmother - this continues upward without interruption; the wife of one's paternal grandfather - this continues upward without interruption; and the wife of one's son's son - this continues downward without interruption.

All relations with women that are forbidden by the Torah, but that are not punishable by karet, are referred to as issurei lavin (prohibitions forbidden by negative commandments); they are also referred to as issurei kedushah (prohibitions [that encourage] holiness).They are nine: relations between a widow and a High Priest;6See Leviticus 21:14. those between a divorcee, a zonah,7Hilchot Issurei Bi'ah 18:1 defines this term as meaning either a woman who is not Jewish, a Jewish woman who has engaged in relations with a man she is forbidden to marry, or one who engages in relations with a challal (a male born from relations between a priest and a woman he is forbidden to marry). or a chalalah8A woman who engages in relations with a priest despite a prohibition against doing so, or a female born from relations between a priest and a woman he is forbidden to marry (Hilchot Issurei Bi'ah 19:1). and either a High Priest or an ordinary priest,9See Leviticus 21:7, 21:14. those between a bastard10A bastard is defined as a person born from any of the forbidden sexual relations that are punishable by execution or karet, with the exception of relations with a woman in the niddah state. This term does not refer to a child born out of wedlock. Deuteronomy 23:3 forbids a bastard from marrying a native-born Jewish male or female. and a native-born Jewish male or female, those between a native-born Jewish woman and a Moabite or Ammonite convert,11See Deuteronomy 23:4. those between a man and his divorcee after she has been married to another person,12See Deuteronomy 24:4. those between a native-born Jewish woman and a man with crushed testicles or a cut member,13See Deuteronomy 23:2. and those between a yevamah and a man other than [one of her deceased husband's brothers] while she is still obligated to them.14A yevamah is a childless widow, who is obligated to marry one of her deceased husband's brothers or to be discharged of that obligation through the rite of chalitzah. Until she and her brother-in-law fulfill this rite, she is forbidden to marry anyone else. (See Deuteronomy 25:5-10.)According to Rabbinic decree, an equation is established between a divorcee and a woman who undergoes chalitzah, and the latter is also forbidden [to engage in relations] with a priest. The Rabbis also placed netinim in the same status as bastards. In Hilchot Issurei Bi'ah, we will explain who the netinim are.15The netinim are the Givonites, who were forbidden to marry into the Jewish people even after their conversion by Joshua. King David reinforced the ban against them. (See Hilchot Issurei Bi'ah 12:22-23.)

There are certain relationships for which there is a prohibition resulting from a positive commandment [issurei aseh], but they are not prohibited by a negative commandment. There are three such prohibitions: the first and second generations of Egyptian or Edomite converts, both men and women [to all native-born Jews and Jewish women], and a woman who is not a virgin to a High Priest.In these instances, there are no verses that state "He shall not enter [the congregation of God]..." or "he may not take...." The prohibition [against the marriage of the Edomite and Egyptian converts] is instead derived [from Deuteronomy 23:9], which states that "in the third generation they may enter the congregation of God." This implies that the first and second generations may not enter [this marriage group].Similarly, from [the positive commandment, Leviticus 21:13]: "He [the High Priest] shall marry a virgin," we can derive that he is forbidden to marry a woman who is not a virgin. A prohibition that is derived from a positive commandment has the status of a positive commandment.