Vol 39.05 - Teitzei Spanish French Audio Video
|Hebrew Text: Rambam-Ishut|
(5751) Explanation of the lenghthiness of Rambam's words in the beginning of Hilchot Ishut concerning the boundary of Ishut (marriage) before Matan Torah and the difference in Halacha;
The connection according to Drush (Exegesis) between the beginning of Sefer Nashim and the end of Sefer Zemanim (which precedes it. Hil Megillah vChanukah 4:14): "lighting a lamp for one's home receives priority, since it generates peace within the home etc. for the entire Torah was given to bring about peace within the world etc."
1. Rambam writes at the beginning of Hilchot Ishut:
“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 ...."
Rambam continues in the following Halacha:
“This process of acquisition (ליקוחין אלו) fulfills (one of) the Torah's positive commandments . .They are universally referred to as Erusin ("betrothal") or Kiddushin ("consecration").
Once this process of acquisition has been formalized and a woman has become mekudeshet/ consecrated, even though the marriage bond has not been consummated and she has not entered her husband's home, she is considered to be married . . If her husband desires to divorce her, he must compose a Get (a formal bill of divorce)”.
Seemingly, one must examine this. Why does Rambam preface here, the description of the scope of marriage before Matan Torah, and not begin with the law of marriage after Matan Torah:
“When a man desires to marry a woman, he must first acquire her . . (Only) after this, does she become his wife”.
Plainly, the ramification in Halacha, in our times, is with regard to a non-Jew, as it states in the Maggid Mishneh there,
“This is simple and explained in many places, that regarding a non-Jew, a woman becomes his wife if he is merely secluded with here (ייחוד בעלמא). And since he has relations with her, for the purpose of marriage, she is considered his wife, where his non-Jewish friend is liable, if he has relations with her, as explained in Chapter nine of Hilchot Melachim etc.”
However, this is seemingly not a reason to cite this in the beginning of Hilchot Ishut, where it solely discusses Jewish marriage. He should have cited this in Hilchot Melachim, where the laws of non-Jews are explained.
This is like the laws of Hilchot Gerushin (Laws of Divorce), where in the beginning of Hilchot Gerushin, Rambam writes solely regarding Jewish Divorce (without prefacing the manner of divorce before Matan Torah)
“A wife can be divorced only with a written document that comes into her possession; such a document is called Get (letter of divorce). This is what is stated in the Torah, "And he will... send her from his home". It does not mean that the divorce does not become effective until she leaves his home. Instead, the divorce becomes effective when the Get reaches (a woman's) hand, even though she still is in her husband's home”.
Only in Hilchot Melachim, is the law of Gentile Divorce explained, as it states,
“When is a gentile woman considered divorced? When her husband removes her from his home and sends her on her own or when she leaves his domain and goes her own way. They have no written divorce proceedings.”
One must understand:
This preface regarding marriage before Matan Torah, relates to the law of Jewish marriage (after Matan Torah).
2. Seemingly, one could explain this according to what is written in another place (לקו"ש ח"ל ע' 243), that before Matan Torah, the entire aspect of these forms of “marriage acquisitions” (ליקוחין), after Matan Torah were not applicable. For the aspect of a “married woman” (plainly) is not that the woman is acquired to the husband, like an article that is acquired to a person. Rather it is that this man and woman become like one entity, which is accomplished through their joining (זוג). This is similar to the wording of the verse:
“Man should cleave to his wife (ודבק באשתו)”
Therefore, without the Torah’s command that a person,
“First acquire her . . (Only) after this, does she become his wife”,
there is no place to say that these “marriage acquisitions” have the power to effect that the woman be called a “married woman”, when she is not “his wife” in the plain sense.
For, “the marriage bond has not been consummated and she has not (even) entered her husband's home”. It is solely the Torah’s command that creates the entity of “marriage acquisitions” that makes the woman a “married woman”.
One could say that there is also a ramification, in our times, regarding a non-Jew.
For a non-Jew who acquired a wife with one of the manners of acquisitions for the purpose of betrothal etc., does not accomplish anything through this deed, and she is still considered unmarried, just as before the actual deed of acquisition.
This is like the words of Rambam in Hilchot Melachim that,
“A gentile is not liable for adultery unless . . after she had engaged in relations with her husband at least once. However, if she was merely betrothed or had undergone a wedding ceremony, but had never engaged in relations with her husband, one is not liable for engaging in relations with her”.
According to this, one could say that that, for this reason, Rambam prefaced the law of marriage before Matan Torah – in order to better emphasize the innovation in the scope of marriage after Matan Torah. As we see, that before Matan Torah, the sole manner to create the boundary of marriage, was solely to live together as husband and wife, as he states,
“He would bring her into his home and engage in relations with her etc.”
However, this explanation is not sufficient. For in this aspect, there is seemingly, no ramification in Halacha with regard to Jewish marriage.
How is marriage different than divorce? (מאי שנא קידושין מגירושין)
For there, Rambam does not preface the scope of divorce before Matan Torah, even though the aforementioned differences between a Jew and non-Jew, in the law of marriage and divorce are dependent upon each other.
For since the aspect of marriage regarding a non-Jew is created though her entering his home etc. (in other words, actually living as husband and wife), Therefore, even his sending her (or her leaving) his home effects divorce.
Whereas, with a Yisroel, where marriage is created through acquiring and marriage acquisitions (קנין וליקוחין), Therefore, the nullification of this acquisition is specifically through a document.
If so, just as Rambam prefaces the law of marriage before Matan Torah, in order to emphasize the innovation of the marriage acquisitions of Matan Torah. So too, he should have prefaced the law of divorce before Matan Torah in order to emphasize the innovation in the law of divorce after Matan Torah.
(That she is divorced through a “document”, even when she still resides in the house of the husband).
3. This can be understood by prefacing another precise wording of Rambam, here:
Regarding the scope of Jewish marriage there are two steps:
Although, even through Erusin alone, the status of “married woman” is conferred upon the woman. Nevertheless, many of the obligations (even those that are Biblical) only come into effect after Nisu’in. For then they are husband and wife, in all matters.
According to this, one must slightly examine this.
For in the beginning of Hilchot Ishut, Rambam just explains the aspect of Kiddushin (Erusin). Whereas, the law of Nisu’in is only discussed in chapter ten. Only there, does Rambam explain that when,
“He brings her to his home, enters into privacy with her, and thus singles her out as his (wife). (Their entry into) privacy is referred to as entry into the Chuppah, and it is universally referred to as Nisu'in. .This causes her to be considered his wife with regard to all matters”.
Seemingly, Rambam should have explained the aspect of “Nisu’in” immediately in the beginning of Hilchot Ishut, together with the explanation of Kiddushin and Erusin.
On the contrary:
Kiddushin is “(just) the beginning of the Mitzvah of Nisu’in. . Erusin without Nisu’in certainly does not, as yet, complete the Mitzvah”.
(This is like the precise wording of Rambam in the heading to Hilchot Ishut, that the marriage is “To marry a woman with a Ketubah and Kiddushin”. Thus, the Mitzvah is Nisu’in)
If so, it is extremely puzzling why he does not explain the aspect of Nisu’in immediately in the beginning of Hilchot Ishut.
It is even more not understood:
For in the first two chapters of Hilchot Ishut, Rambam explains twenty terms that are related to these Halachot. And at the end of chapter two, he enumerates all the twenty terms, starting with the term “Kiddushin”
(and concludes, “Keep these terms in mind at all times. . so that their intent will not have to be explained whenever they are mentioned”)
Yet the term “Nisu’in” is not mentioned there, at all.
4. It appears, that Rambam maintains that the main innovation of the Torah, in the aspect of Jewish marriage, is just in the scope of Kiddushin. As aforementioned, the entire scope of these marriage acquisitions were created through the Torah’s command. However, in the aspect of Nisu’in, the essence and scope of marriage, did not change from the way it was before Matan Torah. The aspect of Nisu’in itself is the entity of married life (חיי אישות). As in Rambam’s words,
“He brings her to his home . . she becomes his wife”
In this, there is not a (radical) change between before Matan Torah and after Matan Torah.
This is why Rambam precisely states,
“Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must first acquire her . . after this, does she become his wife”.
And then he goes and delineates the aspect of these “marriage acquisitions” and not the aspect of “to marry her” (Nisu’in).
For the Torah’s innovation is not in the aspect of “to marry her” (“she becomes his wife”) itself. For this aspect remained the way it was before Matan Torah. However, the innovation was just the aspect of marriage acquisitions that precede Nisu’in, as he states, “he must first acquire her (and after this, does she become his wife”.
This itself, is the reason that Rambam prefaces the order of the aspect of marriage, “before Matan Torah”. For this is not (just) a preface to understanding the innovation of Jewish marriage (Kiddushin). But in order to explain the term “Nisu’in” (even now after Matan Torah), that this is the main aspect of marriage.
Therefore, we find that not only did Rambam not omit here the explanation of the term Nisu’in. Rather, on the contrary, this is the beginning of Hilchot Ishut.
(It is just that he explains how it was “before Matan Torah”, since it did not change after Matan Torah).
And only afterward does he explain the twenty specific terms that are related to the aspect of Nisu’in, (starting with the term “Kiddushin”).
According to this, the difference between marriage and divorce is understood:
For here, Rambam prefaces the law of marriage the way it was before Matan Torah. Which is not so regarding divorce. For regarding marriage, the scope of marriage before Matan Torah remained the way it was, even after Matan Torah, in the aspect of Nisu’in.
(The innovation of Matan Torah is in the marriage acquisitions that come before the Nisu’in).
Whereas regarding divorce, the exiting (and sending) of the wife from the house of the husband, as it is regarding non-Jews, does not matter at all (לא מהני כלל) with regard to Yisroel.
5. One could say that this thing (that the boundary of Nisu’in did not change after Matan Torah) has a ramification in Halacha. For this is the foundation of Rambam’s view in the scope of Chuppah (which effects the Nisu’in).
For we find many opinions concerning what constitutes entering into the “Chuppah”.
Rambam rules that entering the Chuppah means “seclusion” (יחוד), as he writes,
“He brings her to his home, enters into privacy with her, and thus singles her out as his (wife)”.
(שיביא אותה לתוך ביתו ויתיחד עמה ויפרישנה לו)
This is very close to the description of marriage before Matan Torah, where, “he brings her into his home and conduct relations with her etc.”
This is because Rambam maintains that the aspect of Nisu’in after Matan Torah is the very aspect of Nisu’in that was before Matan Torah. In other words, the act of living as a married couple. Therefore, in order to confer the term “married” (נשואה) upon the woman, it is equal to the manner of marriage that preceded Matan Torah.
Although there is a ramification between marriage before Matan Torah and marriage after Matan Torah. For before Matan Torah (and also regarding a non-Jew after Matan Torah) there must be actual living as husband and wife (חיי אישות ממש) (“conducting relations with her etc.”).
Whereas regarding Yisroel it is sufficient that be seclusion alone to consider her married. As Rambam writes that,
“Once they have been consecrated (entered Chuppah) she is called married, even though the marriage bond has not been consummated”
In addition to this, even the aspect of seclusion (for the purpose of marriage) itself is like the act of marriage (מעשה אישות),
(Especially since Rambam precisely writes that seclusion alone is not sufficient, but that there must be the manner of his “singling her out as his (wife)” (יפרישנה לו), as it is explained in the codifiers that it must be in a manner of permanence (קביעות), and not that he brings her into his house temporarily etc.)
Rambam writes that this seclusion must be, “fitting to engage in relations with the woman. If, however, the woman is in the Niddah state (when relations are forbidden), even though she entered the Chuppah and secluded herself (with her husband), the marriage bond (Nisu’in) is not completed and she is still considered to be an Erusa/betrothed”.
According to the aforementioned, the reason is understood plainly. For this is the entire scope of the aspect of Nisu’in – the entering into his home and living together as husband and wife.
Therefore, there must be seclusion that is fitting for married life.
6. According to the aforementioned, one can explain, in the manner of homily (בדרך הדרוש), the connection and relevance between the beginning of Sefer Nashim to the conclusion of Sefer Zemanim that precedes it:
To preface, since the great precision in the order of the aspect in Rambam’s Sefer, is well-known, it is probable to say that there is a connection between each of the fourteen books of Rambam – that the beginning of each Sefer comes in continuation to the conclusion of the preceding Sefer.
In our case – Sefer Zemanim and Sefer Nashim - the connection between them is visible and clear:
The last Halacha of Sefer Zemanim is:
“If (a person has the opportunity to fulfill only one of two Mitzvot,) lighting a lamp for one's home (i.e., Sabbath candles) or lighting a Chanukah lamp . . the lamp for one's home receives priority, since it generates peace within the home. For God's name is erased to create peace between a husband and his wife. Peace is great, for the entire Torah was given to bring about peace within the world, as (Proverbs 3:17) states: "Its ways are pleasant ways and all its paths are peace." (דרכי' דרכי נועם וכל נתיבותי' שלום)
This is the entire theme of Sefer Nashim, the aspect of “peace between a husband and his wife”.
One could further add, that in the beginning of Sefer Nashim, not only is the aspect of “peace between a husband and his wife” emphasized, but even the detail, that the aspect of peace is accomplished through (the giving of the) Torah, like the actual conclusion of Sefer Nashim ,
“The entire Torah was given to bring about peace within the world”
For in the beginning Halachot of Sefer Nashim, Rambam emphasizes (as aforementioned ) the innovation that was created through Matan Torah, in the aspect of marriage, as he states,
“Before the Torah was given, when a man would meet a woman in the . . Once the Torah was given, the Jews were commanded that when a man desires to marry a woman, he must first acquire her as a wife . . after this, does she become his wife”
It is plainly understood, that this order, that there must be an acquisition before a woman becomes a wife, depicts the great connection and establishment between them (הקשר והקביעות שביניהם).
For before Matan Torah, immediately when they both desired, he would “bring her into his house etc.” It is understood that there is no strong connection here. For just as he brought her in, he is able to send her from his house immediately when he wants. This is similar to “one night came into being and the next night perished”.
Whereas after Matan Torah, since he cannot bring her immediately into his house when he meets her. Rather this is only after the preface of “he must first acquire her etc.”, it is therefore, understood that this has a greater force and permanence.
So much so that that he cannot immediately send her away when he wants. Rather, “If he desires to divorce her, he must compose a Get”
(According to this, one can also understood the reason why Rambam continues afterward, in another law, that was innovated at Matan Torah,
“Before the Torah was given, when a man would meet a woman in the marketplace . . Such a woman is referred to as a harlot.
For even the theme of this law is to add peace. This is as Rambam explains in Moreh Nevuchim in the reason for the prohibition of harlotry, that
“The effect of this prohibition is the removal of a cause for strife; for if harlotry were permitted . . they would not refrain from quarreling with each other; they would in many cases kill one another, or they would kill the woman etc.)
7. One could say that even what was previously explained in Rambam’s intent in the beginning of Hilchot Ishut, that the Torah’s innovation is mainly in the aspect of Kiddushin. Whereas, the aspect of Nisu’in is like the aspect of marriage that existed before Matan Torah – there is a connection to Rambam’s words at the end of Sefer Zemanim.
This can be understood by prefacing the precise wording of Rambam,
“The Torah was given to bring about peace within the world”.
The Torah was specifically given to Yisroel, as it states, “the inheritance of the congregation of Yaakov”. If so, Rambam should have stated, “to make peace among Yisroel” (and so forth). Why does he write, “to bring about peace within the world”?
Seemingly, one could explain this according to Rambam’s words, that,
“Moshe was commanded by the Almighty to compel all the inhabitants of the world to accept the commandments given to Noah's descendants”.
Also, a non-Jew who accepts upon himself the Seven Noachide Commandments and is careful to observe them, is not among the 'the pious among the gentiles' (חסידי אומות העולם) unless “he fulfills them because the Holy One, blessed be He, commanded them in the Torah”
Therefore, the effects of Torah also affect non-Jews. For through the observance of the Seven Noachide Commandments, peace is made between them.
(According to this, one can also explain the double wording of the verse, “Its ways are ways of pleasantness, and all its paths are peace.” (דרכי' דרכי נועם וכל נתיבותי' שלום)
The difference between a Way/Derech and a Path/Netiv is that a Derech is a wide and large way. Whereas a Netiv is a narrow and short corridor.
In our case, “Derech” refers to the Six Hundred and Thirteen (Taryag) Mitzvot of the Torah, which were given specifically to Yisroel. This is the large and important part of Torah. Whereas, “its paths” (נתיבותי') refers to the Seven Noachide Commandments, which are just a very small part etc.
This is the reason that regarding
The effect of the Torah on non-Jews is the essential scope of peace, which is not so regarding Bnei Yisroel. For “all the men of Israel were gathered . .as one man in unison”, “All Yisroel are brothers”.
There is the aspect of peace due to the composition of their souls. The effect of Torah is to increase in peace itself, that it should also have the aspect of “pleasantness” (noam)).
However, this is not a sufficient explanation. For from Rambam’s words,
“The entire Torah was given to bring about peace within the world”
it proves that the intent of the statement, “peace within the world” does not refer to the acts of the Seven Noachide Commandments, on the non-Jew, but rather to the act of the Six Hundred and Thirteen (Taryag) Mitzvot of Yisroel.
One could say that the explanation of this is:
Regarding the effect of Torah and Mitzvot, there are two categories:
This is why Rambam writes, that the primary intent of the giving of the Torah below, is not (so much) for the purpose of the effect of the Torah – that it effects a heightening (התנשאות) of Bnei Yisroel and raises them above the world. Rather, it is the contrary – that through the Torah, an innovation and addition of “peace” is accomplished in the aspects of the world itself (“peace in the world”).
This aspect is emphasized in the aspect, “peace between a husband and his wife”.
For this is what Rambam continues in the beginning of Hilchot Ishut, regarding the scope of marriage before Matan Torah. For even then, there was the boundary of marriage. There was a path to form the aspect of marriage, as it states, “She shall be his wife”. This itself is an aspect of “Shalom”. However, in this itself, the Torah effects “peace in the world” – that there is added in the aspect of Shalom in a manner that it also contains (in addition to “Shalom”) the aspect of “pleasantness/noam”, through first acquiring the woman, before Nisu’in, and “after this, she becomes his wife“.
8. One could explain the aforementioned aspect, in the scope of Kiddushin and Nisu’in, according to Pnimiyut:
It is known that man and woman, groom and bride, are a simile for G-d and the Jewish people (כנסת ישראל). The connection between Yisroel to their Father in Heaven is compared to betrothal and marriage - Erusin and Nisu’in.
The difference between them is that.
This effects within the person disconnect and separation (פרישות והבדלה) from the world. (prohibition, negation)
This is why the aspect of Nisu’in, in and of itself (in other words the unification and the drawing down into Pnimiyut) is not the main innovation of Matan Torah. For the motion of drawing down Holy Light into Pnimiyut, existed even before Matan Torah (in other words, in the G-dly light that is bounded, according to the level of the worlds).
The main innovation of the Torah is in the aspect of Kiddushin – which is the drawing down of holiness, which is above the confines of the world. This is not within a person’s power, of his own accord, but is solely through the power of the Torah.
However, after the person has been given this power to draw down this holiness, the Nisu’in that comes afterward, where this Supernal holiness is drawn down into them in an inner manner (Pnimiyut) – they are automatically in another manner completely. It is in a manner of permanence and a strong connection (as aforementioned). For the drawing down into Pnimiyut is from this holiness that is above the confines of the world.
On the contrary:
The purpose of the intent is not in the aspect of Kiddushin (that the G-dly Light should remain in the level of separation and transcendence (Makif). Rather it is specifically in the aspect of Nisu’in.
This is like Rambam’s words that,
“The entire Torah was given to bring about peace within the world”,
which is the drawing down of holiness specifically into the world. This aspect will be revealed in the Future, as the Sages state, that at the time of Matan Torah, there was just the aspect of betrothal/Erusin. However, the aspect of Nisu’in between G-d and the Jewish people will be with the true and complete Geulah, through our righteous Moshiach, may he come and redeem us and lead us, walking upright, to our land, quickly and truly in our days, mamosh.
MSichas Shabbat Parshat Tisa 5749
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