txt/Halakhah/Arukh HaShulchan/English/Hupah veKiddushin, trans. by Norman T. Roman. HUC, 1975.txt

Arukh HaShulchan
ערוך השולחן
Hupah veKiddushin, trans. by Norman T. Roman. HUC, 1975
http://library.huc.edu/pdf/theses/Roman%20Norman-CN-Rab-1985%20rdf.pdf

Arukh HaShulchan

Orach Chaim



Yoreh De'ah



Even HaEzer





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A betrothed woman is considered married (lit. the wife of a man) completely, and one who intentionally has intercourse with her (a betrothed woman) is subject to the death penalty; the penalty here is stricter than (in the case of one who has intercourse with) a married woman, for with a married woman it (the penalty) is strangulation, and with a betrothed woman it is stoning.<br>One who has betrothed (a woman) cannot free himself from (lit. dismiss) her except with a “get”<sup class="footnote-marker">24</sup><i class="footnote">Bill of divorce, granted by the husband to the wife.</i>.<br>Nonetheless, it is prohibited for one to have intercourse with his betrothed before (the ceremony known as) “ḥupah”. This is what the Men of the Great Assembly<sup class="footnote-marker">25</sup><i class="footnote">According to some scholars, an organization whose framework dates to the time of Ezra. Commonly considered to be a loosely-knit, representative body which met at irregular occasions to pass major legislation. Possibly led to the development of the formal Sanhedrin (Synedrion).</i> established in the marriage benedictions: “And He prohibited to us (for intercourse) those (merely) betrothed”, so that one would not have intercourse with his betrothed before “ḥupah” and (there) reciting the benedictions. This is a rabbinic prohibition<sup class="footnote-marker">26</sup><i class="footnote">A law with some Biblical foundation; but, nonetheless, instituted by the rabbis. An offender against a rabbinic prohibition is subject only to the rabbinic penalties, but never to the “karet” punishment (cf. footnote 28).</i>, similar to their injunction regarding (intercourse) with an unmarried (single) woman. Therefore, one who has intercourse with his betrothed while (she is still) in his father-in-law’s house (i.e. before the marriage ceremony) must receive the “rabbinic lashes”.<br>And so did the sages say: “A bride without (before the marriage) benediction is as prohibited to her husband as is a menstruant” (Tractate Kallah). The sages also prohibited “yiḥud” with her, similar to their injunction regarding “yiḥud” with an unmarried woman (<i>Bet Josef</i>). And similarly, a “negotiated-for” woman (i.e. before betrothal) is prohibited from having “yiuḥud” with her “negotiator”, for all women prohibited from intercourse are (also) prohibited from “yiḥud” (<i>Ḥelkat M<sup class="footnote-marker">e</sup>ḥokek</i><sup class="footnote-marker">27</sup><i class="footnote">Moses ben Isaac Judah Lima (17th century) Eastern Europe. Commentary on Even HaEzer.</i>).<br>Therefore, there are those who say that they should not dwell together (in the same house) so that they will not grow tired of each other. There is even a suspicion (as to whether or not they should be alone together even) after the preliminary arrangements (have been made) but before the betrothal.<br>And more than (just) this, there is suspicion that they may not (be able to) control their (sexual) desires, and (thereby) sin. And not only this, but perhaps they might perform a prohibited act which carries the “karet” punishment<sup class="footnote-marker">28</sup><i class="footnote">Lit. “cutting off” (originally perhaps “excommunication”). According to the rabbis, divine punishment over which mortal man had no jurisdiction, until the rabbis ordained that it be replaced by flogging.</i>, for she may be a menstruant if she is of age.<br>Therefore (it should be remembered that) the fear of (respect for) God’s word will keep one far from this and similar things (type of sin).
Even if he has betrothed (sanctified) her by intercourse, he is prohibited from having intercourse with her a second time until the time of marriage, for it is established for us that intercourse constitutes (legal) betrothal, but not marriage, as was explained in Chapter 33.<br>Marriage is (legally, the ceremony know as) the “ḥupah”, although the Halakhic authorities (lit. the Poskim<sup class="footnote-marker">29</sup><i class="footnote">Those scholars whose intellectual efforts were concentrated on determining the specific halakha (law) that should be practiced.</i>) differed (in their opinions) as to what exactly is the “ḥupah”, as will be explained in paragraph IV.
The Rambam<sup class="footnote-marker">30</sup><i class="footnote">Moses ben Maimon (1135-1204), Egypt. Considered to be the greatest scholar of post-Talmudic times. His <i>magnum opus</i> is a compendium known as the <i>Mishne Torah</i>.</i>, may his memory be for a blessing, wrote in Chapter 10<br>One’s betrothed is prohibited (to him) until he brings her into his hosue and (there) has “yiḥud” with her, thereby formally setting her apart for him. This “yiḥud” is called taking her into the “ḥupah” and is universally recognized as (legal) marriage. (In the case of) one who has intercourse with his betrothed for the sake of marriage after he has betrothed her - she is considered married from the moment of initial sexual (genital) contact; she is then his wife in all matters.<br>From the moment when the betrothed enters into the “ḥupah”, it is permissable (for him) to have intercourse with her whenever he wishes: for behold, she is his wife completely, in every respect. And after she has entered the “ḥupah”, she is called “married” (i.e. their marriage is recognized [acknowledged] from the moment when she enters the “ḥupah”), even though he may not have had intercourse with her; provided, that is, that she is fit (permissable) for having intercourse (she is not menstruating at the time). But, if she was menstruating (at the time), even though she entered into the “ḥupah” and he may have been alone with her (“yiḥud”), the marriage is not completed, and, hence, she is still (to be considered) as betrothed.
From his (the Rambam’s) words, it is clear that the essence of the “ḥupah” is really “yiḥud” for the sake of marriage. This “yiḥud” must be with the (proper forms of) preparation (lit. preparation and invitation) to live with her as man and wife; hence, he must bring her into his house, have “yiḥud” with her (there) and formally set her apart for himself. The bringing (her) into his house constitutes the “preparation”, and the setting her apart (designation) constitutes the “invitation” to live with him forever (from that moment on).<br>The “yiḥud” can take the place of intercourse even if he does not have intercourse with her, (it is) only (necessary) that she be fit (permissable) for intercourse (with him), as I wrote.<br>But, if the “yiḥud” is not to be a permanent one, even if there has been the proper (forms of) preparation, e.g. he took her to his house for several days, after which she was to return to her father’s house, (in such a case) even if he has had “yiḥud” with her, it is nothing (i.e. this “yiḥud” has no legal character). And it is an obvious thing, for even if the “yiḥud” was not in his house, e.g. if he arranged for a rendezvous place to (there) have “yiḥud” with her and set her apart for himself, after which he will take her to his house, from that moment (the time of the “yiḥud”, whatever it may be), she is legally a married woman, as it is written in Chapter 57.<br>When he has “yiḥud” with her, he must recite the seven benedictions at the place of marriage (wherever it may be): that is, any rendezvous place for “yiḥud”, or he takes her to his house. The benedictions must precede marriage, although (the omission of) the benedictions do not hinder the validity of marriage, <i>ex post facto</i>, as it is written in Chapter 33. For this is what we have learned, that “a bride without the benediction is prohibited (for intercourse)”, (“without the benediction”) means to say “without marriage”, for marriage, in general, means only with (after) the benediction; on the other hand, the groom’s benedictions (in and of themselves) are insignificant (i.e. if there is no “ḥupah” the seven benedictions have no validity), as the Rambam wrote:<br>(In the case of) one who betrothes a woman and recites the groom’s benediction, but does not have “yiḥud” with her in his house - she is still considered only betrothed, for the groom’s benediction does not constitute marriage, only entrance into the “ḥupah” (does).<br>(In the case of) one who betrothes and enters into the “ḥupah”, but did not say the groom’s benediction - behold, this is a complete marriage. He should say the benediction later, even after many days.
This is what he (the Rambam) wrote: “If he has intercourse with her for the sake of marriage, she is considered married”, and it is clear from his words that, with (an act of) intercourse for the sake of marriage, she is considered married, even if he has not set her apart for himself, to take her to his house. And, in considering his words, one must make a distinction; for what the sages have said: (in the case of) one who has intercourse with his betrothed is to be flogged applies only if his intentions were not clearly for the sake of marriage; however, if the intention was (for the sake of) marriage, she is considered married because of (with) this intercourse.<br>[illegible] (see above) is merely to take her to his house, for if such were the case, there would be no need for intercourse - “yiḥud” alone would suffice. Rather, he certainly holds, that since the sages decided that with “yiḥud” subsequent to the preparations (see above) she is considered married, and the “yiḥud” is only a preparation for (an act of) intercourse, how much the less is any preparation required for the intercourse proper.<br>It is possible that there is no need for witnesses to the “yiḥud” (leading) to this intercourse, for this intercourse is not similar to intercourse for the sake of betrothal which requires witnesses; for it (intercourse) is the first stage in his acquisition (of her).<br>Intercourse (for the sake of) marriage can be compared to intercourse (with) a “y<sup class="footnote-marker">e</sup>bamah”<sup class="footnote-marker">31</sup><i class="footnote">A childless widow who has a brother-in-law. The brother-in-law may marry her with intercourse alone, without a preceding ceremony. (Later, the rabbis instituted a ceremony in this case, also.).</i>.<br>And also (the case of) such an intercourse (i.e. for marriage) is more lenient than intercourse for (the sake of) betrothal, for in that (latter) case, complete intercourse is required, according to the opinions of the Rif<sup class="footnote-marker">32</sup><i class="footnote">Isaac of Fez (1013 - 1103), North Africa. His <i>Malakhot</i> is the earliest medieval major compendium.</i> and the Rambam, as it is written in Chapter 33 paragraph 4. However, (in the case of) intercourse for (the sake of) marriage, the Rambam has written that (mere) sexual-genital contact suffices (his source is y<sup>e</sup>bamot 55b. As the Rif wrote there, and see the Rin to Chapter 1, they are questionning the version in the G<sup>e</sup>mara.) Intercourse for (the sake of) marriage of “ḥupah”, since it is revealed for all (too see their entering the chamber together), behold, they are like witnesses, as it is written in Chapter 149, and see what is written in Chapter 26, paragraph 5.
There are those who say the “ḥupah” is not (constituted by) “yiḥud”, rather (“ḥupah” is) only when the husband (to-be) brings her from her father’s house to his house for the sake of marriage, even if he has not had ‘yiḥud” with her, for behold, it is written: “If she made a vow in the house of her husband” (Numbers 30:11), the meaning is that at all times when she is in her husband’s house, she is under his authority<sup class="footnote-marker">33</sup><i class="footnote"> Should be understood conversely, that she is the responsibility of her father or her husband.</i> (Rin) to the first Chapter of Ketubot). And thus taught the sages: she is always under the authority of the (her) father, until she enters under the authority of the (her) husband in marriage; consequently, the essence of marriage is her entering under the authority (entering the domain) of the husband.<br>The Rambam holds that it is true: (her) entering under his domain constitutes marriage, but only in conjunction with “yiḥud”, because generally when he brings her into his house, he has “yiḥud” with her. But also, the opinion agrees with the Rambam, that, on the road, the essence (of valid marriage) is the “yiḥud”, as apparent in Chapter 57. (Ketubot 12b: “our rabbis taught [in a Baraita]: ‘he took her to his house … and she had witnesses so that it [her going with him, i.e. “yiḥud”] would not be hidden.’ ” There is no contradiction between the Rambam and the Tosafot, indeed, he does not rely on them. On the contrary, because of how remarkable in his reasoning, we suspend [the other opinion]. And the Rambam, at the beginning of Chapter 12, does away with witnesses, as it will be explained, with the help of heaven, in Chapter 67.)
There are those who say that “ḥupah” is (when) the (her) father delivers her, leading her into a house which has something new in it for the sake of that “ḥupah”, for example, embroidered sheets, which some make of roses or myrtles: and there they have “yiḥud” (<i>Bet Josef</i>, Chapter 61, quoting the <i>Tur</i>).<br>This then is the expression “entrance into the ‘ḥupah’ ”: this is a special place, a sort of canopy where the groom and bride sit with their attendants.<br>In the Jerusalem Talmud (at the end of Tractate Sotah), the grooms’ “ḥupah” comes to be (described as having) embroidered sheets with gold-embroidered ribbons hanging on them.<br>Hence it is clear that this was a place decorated especially for the “ḥupah”.
The Rosh, may his memory be for a blessing, wrote (Chapter 2 of Tractate Sukkah, paragraph 8):<br>It must be examined (exactly) what constitutes the “ḥupah”; is it a place where one recites the marriage benedictions, meaning (only that it is) the first stage of marriage and hence called the “ḥupah”? It is impossible to say this, for somethimes they recite the benedictions in the city street while the people are crowding about. Rather, the main dwelling place of the groom and bride is what is called “ḥupah”. It is not a place used (lit. made) by mere chance. And there (the fomer place) they recite the benedictions for seven days.<br>The custom in Ashkenaz (Germany) is to make a litter and place the groom and bride (on it), and this is called the “ḥupah”.<br>This is in accordance with an ancient view (custom) and it has Biblical support: “A groom will go out of his chamber, and a bride from her canopy (‘ḥupah’)” (Joel 2:16).<br>Behold, there is an established (fixed) place that, for this time (the marriage ceremony), is called a “ḥupah”, as it is written: “He is like a groom going out from his canopy (‘ḥupah’)” (Psalms 19:6), meaning (he goes out) from the tent wherein is the “ḥupah”, as it is written in the previous verse: “He placed in them a tent for the sun”<sup class="footnote-marker">34</sup><i class="footnote">It is possible that the author is basing his proof-text on a now reading of verse 5; changing the vocalization of two words leads to the translation: “to serve there as a tent for them.”</i> (Psalms 19:5).
Our rabbi, the Remah<sup class="footnote-marker">35</sup><i class="footnote">Moses ben Israel Isserles (1530 - 1572), Poland. Ashkenazi commentator to the S<sup>e</sup>fardi-oriented <i>Shulḥan Arukh</i>.</i>, wrote; “There are those who say that the ‘ḥupah’ is when they spread a cloth over their heads at the time of the benediction.” This view has been rejected (cf. <i>Ḥelkat M<sup>e</sup>ḥokek</i>, Chapter 107), but the intention (purpose) of this opinion is that, similarly to our custom, they place beams with a curtain spread over them, and in ordinary language this is called a “ḥupah”. It is positioned in a special place, e.g. in the synagogue courtyard (see below and Chapter 3) or a similar place, (whereupon) the groom and the bride are led under it with their “friends” (grooms’ men, attendants), and there they recite the benedictions.
He (the R<sup class="footnote-marker">e</sup>mah) also wrote: “There are those who say that the ‘ḥupah’ of a virgin is (from the moment that) she is carried in the ‘marriage litter’, and that of a widow, when she has ‘yiḥud’ ”. This is found in the Mishna, that a virgin goes out (from her father’s house) in a marriage litter bareheaded (Ketubot, beginning of Chapter 2), for it was customary to lead the virgins from the father’s house to the marriage house “with her hair (down) to her shoulder” (Rashi<sup class="footnote-marker">36</sup><i class="footnote">Solomon ben Isaac (1030 - 1105), Troyes. The most famous and prolific commentator on the Bible and Talmud.</i>). The word <span dir="rtl">הינזמא</span> means a veil on her head hanging down over her eyes, and sometimes she dozed behind it, for her eyes were not revealed; therefore, it was called <span dir="rtl">הינזמא</span> because of <span dir="rtl">תנזמה</span> (“dozing”) (Ketubot 17b).<br>There are those who say that the “ḥupah” is when they hand her to the (her) groom, before the benediction (Mordecai’s commentary to the first Chapter of Ketubot).<br>The intent of these two opinions is not that she is considered married immediately upon (the) placing on her (of the) <span dir="rtl">הינזמא</span> (veil), or immediately upon their bringing her to the (her) groom, rather, the intent is according to our custom: they seat the bride (on a chair), braid her hair, and make music before her with (various) musical instruments; (then) the groom comes and covers her face with a scarf, and from there they walk to the “ḥupah” - this (then) is the <span dir="rtl">הינזמא</span> the transmission (leading her over) to the groom. In our custom, it is obvious that she is not (considered) as married (yet), for he has not betrothed her yet, and there can be no marriage before betrothal. Rather, this is the beginning of the marriage, to be completed (only) after the betrothal and the benedictions.<br>(It should be understood that) similarly, the intent of the above opinions is that this is the beginning of the procedure of the marriage (so it appears to me; cf. Mordecai to the first Chapter of Ketubot, and <i>Ḥelkat M<sup>e</sup>ḥokek</i>, Chapter 109).
He (the R<sup class="footnote-marker">e</sup>mah) also wrote:<br>The custom is widespread now: to call the “ḥupah” that place where a spread curtain is brought in (placed) on (four) poles, under which the bride and groom are led in public and he betrothes her there, and the benedictions of betrothal and marriage are pronounced; after which they are led to their house and they eat together in a private place. This is the customary “ḥupah” nowadays.<br>According to this (then), the basic completion of the “ḥupah” is their eating together in a private place, for this is (like) “yiḥud”. Therefore, others should be prevented from going there (to the private place with them) <i>(Bayit</i> <i>Ḥadash</i><sup class="footnote-marker">37</sup><i class="footnote">Rabbi Joel Sirkhes (1561 - 1640), Poland. Commentary on the <i>Tur</i>.</i>). Not even one person should enter there, for if such were the case (if someone else was with them), the “yiḥud” would not be fitting for (an act of) intercourse. Hence, (care must be taken to) prevent anyone from entering there, so it can be a complete “yiḥud” (<i>Bet Shmuel</i><sup class="footnote-marker">38</sup><i class="footnote">Rabbi Samuel ben Uri Phoebus (17th century), Germany. Commentary on Even HaEzer.</i>, Chapter 105).<br>In our time, since we do not have the custom of the groom and the bride eating together in one room where no one can enter (there); on the contrary, (since) all the attendants and members of the bridal party are there, (we) must know (exactly) what now constitutes the “ḥupah” which makes her (the bride) married (officially).
I found that one of the “Rishonim”<sup class="footnote-marker">39</sup><i class="footnote">Lit. “the first ones” or “the earlier ones”. Those rabbinical authorities whose decisions preceded the <i>Shulḥan Arukh</i>.</i> wrote:<br>It appears to me that the things are as follows (thus): the father delivers his daughter first to his son-in-law amidst a group of his friends to be his wife; this is what is called marriage. After she has stood (stayed) one or two days, preparing the necessities for meals and dress, a house would be especially designated for (them) to rejoice there with the wedding guests and friends, and to make a meal, so that (in that house) they can have intercourse that night - there they bring in the bride; that house which has been prepared for his purpose is called a “ḥupah”. This is what is said in the Jerusalem Talmud: “The “ḥupah” is not an end in and of itself, rather (it is) a house wherein is a “ḥupah”, that is to say, that even though they have not yet placed (her) in the (marriage) litter, rather in a house wherein there is a litter, she immediately eats of the ‘T<sup class="footnote-marker">e</sup>rumah’”. (If she is the wife of a Cohen, she now has the privilege of eating the “T<sup class="footnote-marker">e</sup>rumah” - offering).<br>Therefore (based on this) I say that our (idea of) “ḥupah” is the bringing of the bride when we lead her into a house where there are embroidered sheets; behold, the (exact) time of marriage in this case is the time of the father’s delivering (her) to the husband. He (the groom) may (now) inherit her, but he may not be defiled because of her, nor does he have the right to annul her vows, until she enters the “ḥupah”. And once she enters the “ḥupah.”, she is (considered) as his wife in all matters, except that he is forbidden from having intercourse with her until he recites the seven benedictions. And if he does have intercourse with her after the marriage but without the “ḥupah” (i.e. without the benedictions), he has not properly acquired her with respect to these matters. For whenever (he lives with her without the “ḥupah”) it is considered a lewd act. (Quoted in the <i>Shulḥan Arukh</i> of Shneor Zalman in the commentary on <i>Ḥafets Ḥayyim</i>.)<sup class="footnote-marker">40</sup><i class="footnote">Rabbi Shneor Zalman ben Baruch of Liady (1747-1812). Leader of the rational Ḥasidic movement known as ḤaBaD.</i>
From these things it is clear that the term “nisuin” and the term “ḥupah” are two different things, and thus one can infer from the wording of the Mishna, where it is taught: “Always, she is under the authority of the father until she enters the authority of the husband through marriage.” (Ketubot 4:5) And it is also taught (in the Mishnah): The woman may not eat of the heave-offering until she has entered the ‘ḥupah’”. (ibid. 5:3) (Therefore) since there is a difference in wording, (we) learn from this that they (“nisuin” and “ḥupah”) are two different things.<br>But, we have not heard this (opinion) from any of the Halakhic authorities, and in the words of the Rambam which we (have already) brought, it is written: “This ‘yiḥud’ is called entrance into the ‘ḥupah’, and is (also) called (it constitutes) marriage universally.” Behold, this proves that it (“nisuin” and “ḥupah”) in (only) one thing. Thus it is in the Mishnah: “until she enters the authority of the husband for ‘nisuin’ ”. This definition means “ḥupah” because this has reference to the heave-offering; thus Rashi’s comment: “That is to say she enters the ‘ḥupah’ for the sake of marriage.”<br>There are those who read that this is the true meaning of “until she enters the ‘ḥupah’ ”, but we have found in the Gemera[illegible] in a Baraita where it is taught: “One who has intercourse with a married woman - (with her being defined as a married woman) as soon as she had entered under the authority of her husband in marriage” (ibid. 49a). Behold, this is (a crime punishable) by strangulation. The inference is made here (that they are two different things), (for) even though (it is not stated) “she entered under the ‘ḥupah’ yet”, behold these are two (separate) things, so it is necessary to say (add) that the term “nisuin” is an inclusive term, and lasts from before the “ḥupah” until after the “ḥupah”; the beginning of the “nisuin” is not yet the “ḥupah”, rather, “ḥupah” is the end of the “nisuin”.
In my humble opinion, the Halakhic authorities do not differ at all, for behold, it is true that the word “ḥupah” is not written in the Torah, only the word (for) marriage, as it is written: “(In the case of) one who betrothes a woman but has not (yet) taken her…”<br>[illegible] marriage, since, according to Torah law proper, when he has intercourse with her for the sake of marriage, she is (considered) his wife completely and she is (considered) married. So wrote the Rambam.<br>However, it is not the way for Israelites to have this intercourse in public, and therefore, we would require witnesses to the “yiḥud” for intercourse. And even if it was possible that there was no need for witnesses to this (“yiḥud”), as it is written in paragraph 5, in every instance the matter would be in public (in reality) - for behold, (we) must bless them with the seven benedictions immediately before the marriage (ceremony). Therefore, our rabbis, may their memories be for a blessing, established that the “ḥupah” will be (can be) in place of the “nisuin” (i.e. the two terms can be used synonymously). It has always been this way; even in the time of the prophets, as it is written: “like a groom going out from his ‘ḥupah’ ” (Psalm 19:6), and, it says: “and a bride from her ‘ḥupah’ ” (Joel 2:16). (Cf. VIII) Obviously (then), thus did Moses our Rabbi instruct (lead) Israel.
The interpretation of “ḥupah” is from the expression: “He covers (protects) him all day” (Deuteronomy 33:12); this is an expression of covering and separating (them) from other people. And in the Aggadic literature, our sages, may their memories be for a blessing, wrote: “The Holy One, Blessed be He, is destined to make for each righteous man seven ‘ḥupot’ ” (Baba Batra 75a), meaning (special) coverings of honor, to distinguish them from other people, as it is written: “For on all glory shall be a ‘ḥupah’ ” (Isaiah 4:5). It was established to make a “ḥupah” of honor, and to recite the seven benedictions over them, and with this she is (considered) married completely. The (omission of) intercourse will not hinder (the validity of marriage) “everyone knows why the bride enters the ‘ḥupah’ ”. (Ketubot 8b). So there is no need for witnesses to the “yiḥud”, or ten men (to witness) the wedding benedictions, (because) immediately afterwards they will have intercourse, and this would be indecent (for others to be present).<br>Every kind of “ḥupah” that has been customary constitutes acquiring (a woman) through marriage, since their intent is (always) marriage, and now they are separated from other people. The two of them stand in one place for the sake of marriage, for example, when he leads her into his house and has “yiḥud” with her, as the Rambam wrote (Cf. III). And it would appear to me that the Rambam’s intention is also not that it is a complete “yiḥud” if the two of them are alone in one room, rather (when) they have “yiḥud” to live together as a man and his wife; they stand next to each other, and the seven benedictions are recited for them. Therefore, the opinion that we wrote in paragraph 6, viz. that “ḥupah” is not (only) “yiḥud” but the bringing her into his house for the sake of marriage, is essentially the opinion of the Rambam; for it is obvious that this opinion also acknowledges that, if he brings her to his house but is not with her, this is nothing. It is also obvious that he must be together with her, and recite the seven benedictions for then.<br>However, regarding this opinion, what the Halakhic authorities worte with respect to the opinion of the Rambam, that he holds that complete “yiḥud” in one room is necessary, and that no one else should be with them - this is the opinion concerning which there is disagreement. But, (in) our interpretation of the opinion of the Rambam: this and this are one (the same).
Thus, (no matter) if some are accustomed to different types of “ḥupot”, as (described) in paragraph 7 where they make a place especially decorated for the groom and the bride, or like our (custom) of placing poles with a spread curtain under which the wedding attendants lead the groom and the bride - first they seat the bride and the groom covers her (with a veil), and upon their return from the “ḥupah”, they go together and sit at the table (to eat) next to each other, and this is the sign of marriage. Everyone knows that this is (in) preparation for intercourse in an accepted manner; there is no need to fear that, at the proper hour, he will not be able to have intercourse with her, for behold, the intention has already been demonstrated (made) without (there being) so much excitement.<br>And the Rosh, may his memory be for a blessing, who was apprehensive, because the place for the “ḥupah” is a temporary one, also acknowledges that a place should be especially chosen for them to be together before the (actual) “ḥupah” and after the “ḥupah”, this being so, it is obvious: that all this matter (all these aspects) constitutes the “ḥupah”, and immediately (after) the seven benedictions have been recited for them, she is (considered) married completely.<br>This is where one of the Rishonim disagreed, (differentiating) between marriage and “ḥupah”, as we wrote in paragraph 12. But it is also his intention (to show) that the beginning of the marriage (ceremony) is a place where they (the bride and groom) sit before (entering) the “ḥupah”, where he covers her head; this is where he takes her under his authority. But this is not the complete “ḥupah”, and not more effective than (her father) delivering her to her husband, for this (seating and covering) relates only to inheritance, as it is written in Chapter 57.<br>The completion is (when they are) under the “ḥupah”, (only) then is the marriage (ceremony) completed. The sign of the completed marriage (ceremony) is (when) they recite the seven benedictions for them.
The general rule is according to the basis of the law of the Torah proper: marriage is intercourse for the sake of marriage or the preparation for it, where the “ḥupah” (in the broad sense of the term) is the preparation (for this). Which (type of) preparation depends upon local custom. Since this thing (albeit in many forms) is called “ḥupah”, and (since) the benedictions are recited, the marriage is completed and the end of the preparations for all “ḥupot” is from that moment on (when) she enters under his authority and he (accepts that he) is ready to live with her as man with his wife.<br>Therefore, the Rambam insisted that she (the bride) be ritually clean; since the essence of the “ḥupah” is intercourse, it is required that she be (ritually) proper for that intercourse. But the majority of the Halakhic authorities disagree with him, with the opinion that we should not be concerned for her to be (ritually) proper for intercourse at the exact hour of the “ḥupah”, for certainly there will be (at least) ten men there for (to witness) the benedictions. It is impossible for him to have intercourse (with her) then. Rather, we should say (only) that she be (ritually) proper for intercourse after a time, and if such is the case, there is no difference (in saying) after an hour, or after one day or two days.
In regards to those among us who designate the “ḥupah” in the courtyard of the synagogue, there is great reasoning for this: for the essence of the “ḥupah” is the (bride’s) going out from the authority of the (her) father to the authority of the (her) husband; this (is the case) if the husband takes her to his house.<br>But, in many instances, it is customary for us to make everything in the house of the bride’s father, for often the bride’s father takes him (the groom) into his house for a time, also, and, therefore, how is it evident that she (the bride) has gone out from the authority of the father to the authority of the husband? Therefore, we place the “ḥupah” in the courtyard of the synagogue, for this is a congregational (communal) place, and at the time of the “ḥupah” it is in the mind of the congregation to make this groom acquire this land, as (with) the congregation’s “etrog” at the time of the blessing on the first day of Sukkot, (which) is considered to belong to everyone. Since (in the mind of the congregation) this land is (considered) his (for the time of the “ḥupah”), it is considered like his bringing her into his authority (the G<sup class="footnote-marker">e</sup>rah<sup class="footnote-marker">41</sup><i class="footnote">Elijah Gaon of Vilna (1720 - 1797).</i>).<br>The poles and the spread curtain which we call the “ḥupah” is (so called) in reality - for it covers the groom and the bride, separating them from the rest of the people and (still) showing them cleaving to each other. And in regards to the attendants standing under the “ḥupah”, also, this is all because of the friendship with the groom and bride, and therefore they stand bound together, close together.
And also, it appears to me, that even according to the Rambam and those that agree with his position, the (omission of the) benedictions do not hinder (the validity of marriage <i>ex post facto</i>), like all benedictions do not hinder (the validity); in this “ḥupah”, as he (the Rambam) wrote, only (the omission of) intercourse for the sake of marriage or (of) a real “yiḥud” in a closed room fitting for intercourse at that moment (do).<br>But, all “ḥupot” except for those which are only “preparations” to point to this couple’s completed marriage, for as long as the seven benedictions have not been recited for them, the marriage has not been completed. Perhaps this is the reason for the Halakhic authorities who hold that (omission of the) benedictions does hinder the validity of the “ḥupah”, and therefore it is a necessity that the groom’s benedictions be recited, before the marriage is completed. (On the essence of the matters that we are discussing, the G<sup>e</sup>rah wrote in Chapter 109: “There is no need for ‘yiḥud’ at all, only that she be under his authority.” See there. And we explained that the Rambam also holds this opinion. See Rashi’s commentary to Kiddushin 10b: “s.v.<span dir="rtl">זו זכז ׳זנשאת פשיטא זכו׳</span> everything that is ritually pure in your house may be eaten.” See there. And see Rashi’s commentary to Y<sup>e</sup>bamot 110a: “s.v. <span dir="rtl">אבי</span><br><span dir="rtl">כירסיא</span> on a bridal canopy; this seems to mean, like the rest of the “ḥupot”, he is not yet her husband.” See there and give it thorough thought.)
There is one who says that it is correct that, at the time when he betrothes (sanctifies) her (i.e. during the ceremony itself), in our custom this betrothal comes at the time of the “ḥupah”, the groom and the bride should not stand under the spread curtain on poles that is the “ḥupah”, rather, they should stand in front of it. Only afterwards, when they begin to recite the seven benedictions, do they stand under the “ḥupah” (<i>Bayit Ḥadash</i>); the principle being that the “ḥupah” should not precede the betrothal.<br>We have not seen anyone cocerned about this (matter); for behold, according to what the major authorities wrote, that the essence of the “ḥupah” is when they (the couple) eat together after (the ceremony) in a private place, certainly there can be no concern about this (<i>Bayit</i> <i>Ḥadash</i>).<br>And even according to our custom, there is no concern for this, for we have already explained that our “ḥupah” is (derived from) their accepting the fact that, for them, this is the “ḥupah” and the completion of the marriage (ceremony), making her his wife completely. This is after they have completed (reciting) the seven benedictions, as it is written: “for then is the completion of the ‘ḥupah’ ”, not before. The result is that, when the betrothal precedes the “ḥupah”, which precedes the benediction, there is no “ḥupah” for betrothal (lit. on this). And (with regards to) the fact that the “preparations” for marriage precede the betrothal; there is no concern at all on this (matter).
Since one who betrothes and his betrothed are prohibited to have “yiḥud”, therefore, wrote our rabbi, the R<sup>e</sup>mah: “one who betrothes, when he is with his betrothed in one house (i.e. in private), he must recite the seven benedictions, lost they have ‘yiḥud’ ”. And even though the benedictions without “ḥupah” do not constitute anything (officially) anyhow according to what the Rambam wrote. “(if) his intention is for the sake of marriage there is no need for a ‘ḥupah’ ” - therefore, they should recite the seven benedicitons, for then it is obvious that if he has intercourse with her, his intention is for marriage; “One will not let stand what is permitted and eat what is forbidden” (Avodah Zarah 39b).<br>In addition, (we cite) the Halakhic authorities, that (the omission of) the benedictions hinders (the validity of the marriage); it is necessary to recite the benedictions for them (<i>Bet Shmuel</i>, Note #1).<br>In addition, since they have stayed together in the house for a long period of tine, it becomes like a courtyard (i.e. an extension of their house) for the two of then, and their (this) “yiḥud” is a (valid) marriage; she is permissable to hin (for intercourse) after the benediction (<i>Ḥelkat M<sup>e</sup>ḥokek</i>, Note #1).<br>All this (the above) is according to their custom, that she is already betrothed (from before). But, according to our custom, where the betrothal is at the time of the “ḥupah”, the benedictions (in this case) do not count, for behold, he has not yet betrothed her. Therefore, he must keep himself far away from his fiancee, until the time of the wedding.
We have already written in the name of the Rambam:<br>(In the case of) one who betrothes a woman and recites the groom’s benedictions, but does not have “yiḥud” with her in his house - she is still considered only betrothed, for the groom’s benediction does not constitute marriage, only entrance into the “ḥupah” (does).<br>However, if he has intercourse with her for the sake of marriage, it is all right (i.e. she is then considered married) as it is written: “the Rambam’s intention is (to show) that if he doess not have intercourse with her, or (if) they do not have ‘yiḥud’ immediately, the benedictions are voided” (see <i>Ḥelkat M<sup>e</sup>ḥokek</i>, Note #11).
And also the opposite (case can arise): if he betrothed and entered into the “ḥupah” but did not recite the groom’s benedictions - behold, this is a complete marriage; he should return and recite the benedictions, even after several days. And even though all blessings must precede tha act (cf. Pesaḥim 7b), anyhow, among those blessings, those for marriage are not mentioned at all; one may recite the (marriage) benedictions even afterwards. But, the betrothal blessing must be recited before the betrothal (i.e. that part of the marriage ceremony which is still called betrothal), as all the (other) blessings which must precede the act.
Pome of the Halakhic authorities wrote that there is no “ḥupah” for a widow, and their basis is from the Jerusalem Talmud. But it will be explained, with the help of heaven, in Chapter 64, that the Jerusalem Talmud does not prove the point.<br>It is obvious - according to the opinion of the Rambam, that the “ḥupah” is the “yiḥud”, and likewise (for) those who have the opinion that the “ḥupah” is (her) going out into his authority - why should there be a difference between (the “ḥupah” of) a virgin and a widow? However, for those who have the opinion that the essence of the “ḥupah” is the house that is especially prepared for the dwelling of the groom and the bride, with embroidered sheets; and for those who have the opinion that the essence of the “ḥupah” is the spreading of the canopy or the marriage litter - certainly, for a widow, this is not done, for (this type of) “ḥupah” does not apply. And the essence of (his) acquiring her is in a “yiḥud” that is proper for intercourse.<br>And therefore, according to our (customary) “ḥupot”, where we do not make a public demonstration for a widow when she marries a widower, and she does not cover her head, and they do not have attendants or musical instruments, nor do we lead them to the courtyard of the synagogue, rather, in a quiet way we place the poles with a spread canopy in the house, and he betrothes her (there), and they recite the seven benedictions. This “ḥupah” does not constitute an acquisition; he must acquire her with a “yiḥud” proper for intercourse. This will be explained further, with the help of heaven, in Chapter 64.
Before entrance into the “ḥupah”, he (the groom) must write for her (the bride) a “Ketubah”, after which he is permitted to (have intercourse with) his wife, for thus did our sages, may their memories be for a blessing, say: “It is prohibited for him to be with his wife even for one hour without (his having written) a ‘Ketubah’ ”. Thus did the Rambam rule, and our rabbi, the <i>Bet Josef</i>, quotes it (the Rambam’s ruling) in paragraph 3: “There is no reason to question why his obligation is to write (the ‘Ketubah’) before the ‘ḥupah’; let him write it after the ‘ḥupah’ (so long as it is) before he has intercourse with her.” For there is (validity) to the Rambam’s position when he holds the opinion that a “ḥupah” proper for intercourse is necessary, and (a “ḥupah”) without a “Ketubah” is not proper for intercourse (<i>Har HaMor</i><sup class="footnote-marker">42</sup><i class="footnote">Mordecai Benett (1753 - 1829).</i>, Chapter 10, Halakha #7).<br>And, according to this, we, who are not following this (the Rambam’s position) on this, as it is written in Chapter 61: “he was permitted to write (the ‘Ketubah’) also afterward (i.e. after the ‘ḥupah’)”, the fact that our rabbi, the R<sup>e</sup>mah, did not make a Hagah on this, because according to our custom - we pause (in the ceremony) by reading the “Ketubah” under the “ḥupah”, between the benedictions of betrothal and marriage. This being so, even without the reasoning of the Rambam, it is necessary (for him) to write it (the “Ketubah”) before the “ḥupah”. And such is the custom.
However, the “Ketubah” alone does not make (for a valid) marriage. Therefore, (in the case of) the one who betrothes a woman, writes for her a “Ketubah”, but she does not enter the “ḥupah” - she is still (considered) betrothed and not married, for the “Ketubah” (alone) does not make (for a valid) marriage.<br>If he dies or divorces her, the Rambam wrote that she collects “the basic ‘Ketubah’ ” only from the free property but not from the mortgaged property<sup class="footnote-marker">43</sup><i class="footnote"> Property bought from a person who owes a debt collectible from his estate.</i>. She does not collect “the additional ‘Ketubah’ ” at all, even if he has written (the “Ketubah”) for her, his reasoning being that the “Ketubah” itself is nothing (i.e. does not make her married), for he only wrote (it) for her in order to marry her. And (therefore) “the basic ‘Ketubah’ ” is only like an oral loan; hence, she collects only from the free property.<br>But if he betrothed a woman and did not write for her a “Ketubah”, and (then) dies or divorces her, she is (still only) betrothed and she receives nothing, even “the basic ‘Ketubah’ ”; for they did not institute “the basic ‘Ketubah’ ” for her until she is married, or until he writes (the “Ketubah” for her). This is the opinion of the Rambam.
There are some among our rabbis who hold that a betrothed woman has a “Ketubah”, for this appears to be so in several places in the Talmud. If he did not write (a “Ketubah”) for her, she collects from the free property, and if he did write (it) for her, she collects also from the mortgaged property, as (is the principle) with all documents (pertaining to monetary matters). But if he did not write (it) for her, it appears that, with this opinion also, she does not collect from the mortgaged property.<br>However, the Rosh, may his memory be for a blessing, wrote: “even if he did not write (it) for her, she collects from the mortgaged property because of the ‘K<sup class="footnote-marker">e</sup>t<sup class="footnote-marker">e</sup>nai Bet Din’ ” (a stipulation of the rabbinical court that a woman without a “Ketubah” is still entitled to the benefits of a “Ketubah”) (Ketubot, Chapter 4, paragraph 64). And it appears, in the words of the Rosh in another place, that he is in doubt with respect to this law (ibid. Chapter 5, paragraph 5). And not only this, (but) “even if he wrote (it) for her from the betrothal, and later wrote (it again) for her from the marriage, she foregoes her claim to the mortgaged property from the first (of the two ‘Ketubot’)” (ibid.), and she can only collect from the purchasers that which has been sold since the time of marriage.<br>All this is in the matter of “the basic ‘Ketubah’ ”, but in the matter of “the additional ‘Ketubah’ ” everyone agrees that, even if he did write (it) for her, she does not collect from the time of the betrothal, for it is (based on the) general assumption that he only wrote (it) for her in order to marry her.<br>The Halakhic authorities wrote that the custom is according to the Rambam, not to let a betrothed woman collect the “Ketubah”, for in all the places where in the G<sup class="footnote-marker">e</sup>mara it is clear that a betrothed woman has a “Ketubah”, the Rambam shows that (in those cases indeed) he did actually write (it) for her.<br>And, the same is the position of the G<sup>e</sup>onim<sup>44</sup><i class="footnote">Singular “Gaon”, Lit. “pride”; the title given to the heads of the two rabbinic academies in Babylonia (Sura and Pumbedita). During the G<sup>e</sup>onic Period” (late sixth to early eleventh centuries), these men were considered the highest religious authorities, and were a strong unifying force for the Jewish community of the Diaspora.</i> that, since in the G<sup>e</sup>mara it is questioned whether or not a betrothed woman has a “Ketubah”, and it is not solved there (Baba M<sup>e</sup>tsia 17a), she does not receive the “Ketubah”.
(In the case of) one whose betrothed daughter is widowed or divorced after the betrothal (but before the marriage), even several times before she reaches adulthood - her “Ketubah” (money) belongs to her father, for she only goes out from the authority of the father by becoming an adult or by marriage. Therefore, if she is married and (then) widowed or divorced from the marriage, even before (she reaches) maturity, i.e. even if she is still a minor, her father receives nothing with respect to the first “Ketubah” written at the betrothal: “we do not consider the date of the writing of the ‘Ketubah’, saying that, since it was written (while she was still) under the authority of the father, it belongs to the father; rather, we consider the date of the collection, and the collection is only after the marriage” (Rashi commentary, Ketubot 43b).
(In the case of) one whose betrothed (woman) died - if the betrothed man is a Cohen, he may not defile himself because of her, as it is written: “except for his relatives” (Leviticus 21:2), and this means near kin. And a betrothed is not his near kin, even if he has betrothed her by (an act of) intercourse, since she is (supposedly) prohibited to him (for further intercourse) until the marriage.<br>If he (the one who betrothes) dies, she is not obligated to defile herself because of him, even though it is a commandment to defile oneself for all near kin. Nevertheless, (defiling herself) for her betrothed man is no “mitsvah” (good deed) but doing it constitutes no prohibition, even if she is a female Cohen, for the daughters of Aaron were not commanded regarding the defiling, as it is written” “Speak to the priests, the sons of Aaron” (Leviticus 21:1); (it says) “the sons of Aaron” and not “the daughters of Aaron” (i.e. the prohibition against defiling oneself applies to men only).
And it is a similar matter with her inheritance when she (a betrothed woman) dies: he (the one who betrothes) is not eligible for her inheritance, for also in the matter of inheritance is it written: “his near kin”. And since he does not inherit her, he is not obligated to bury her (i.e. provide for her burial). Rather, her father will inherit her and he will bury her. And even if the father does not bury her, he (the father) will (still) inherit her. Even, if there remains no inheritance from her at all, it is not incumbent upon the one who betrothed to bury her or to make any payments (whatsoever).<br>And even if she was married to him in a place where he does not inherit her because of the ordinance in Chapter 53<sup class="footnote-marker">45</sup><i class="footnote">Chapter 53 of <i>Arukh HaShulḥan</i> Even HaEzer details all of the rabbinic ordiances and injunctions concerning inheritance upon the death of either member of the betrothed couple.</i>, he is not obligated to bury her. And in a place where he inherits half of her dowry, there are those who say that the burial is incumbent upon both of them (the one who betrothed and the father) (<i>Ḥelkat M<sup>e</sup>ḥokek</i>). And there are those who say (that the burial is incumbent) upon the husband alone (<i>Bet Shmuel</i>).
Similarly, the one who betrothes is not obligated (to provide) for the sustenance of his betrothed, because as long as she is not married, and he is not obligated to (provide) her conjugal rights, he is not obligated to (provide) her sustenance and garments, unless she was a minor (and an) orphan being provided sustenance by her brothers - for in this case, the one who betrothes is obligated to her sustenance, since she only receives sustenance from her brothers until she is betrothed or reaches maturity. This one (the orphan who is a minor) has not reached maturity to provide for her own sustenance, rather she is only a minor or a young maiden. And no man wants his betrothed to degrade herself by going out and begging at doors (to seek sustenance). Therefore, even if he (the one who betrothes) says that he is not concerned about this (i.e. her having to beg), we force hin to provide her sustenance; he is obligated (to do so) according to rabbinic injunction. This is the opinion of the Rambam.<br>There are those who say that the one who betrothes is not obligated for her sustenance, even in a case like this (i.e. where she is a minor and an orphan) - and she must be provided for by her brothers (it depends on the version, cf. Ketubot 53b).<br>It is an obvious thing that a negotiated-for (“engaged”) woman does not have any of the legal rights (status) of a married woman, not like (those of a) betrothed woman, for even if he wrote for her a “Ketubah”, it is nothing (i.e. it has no validity) if they retracted (broke the engagement) before betrothal: because he: wrote (it) for her only in order to betrothe her and enter (with) her (into the “ḥupah”) (<i>Ḥelkat M<sup>e</sup>ḥokek</i>). How much the more so that with the other things (besides sustenance) she has none of the legal rights of a betrothed woman.

Seder HaGet



Seder Chalitza



Choshen Mishpat