Pre-Marital Gifts

Kidushin (2:6) | Yisrael Bankier | 18 years ago

If a man attempts to perform kidushin with an object of monetary value less than a prutah, kidushin has not been performed. The Mishnah (2:6) taught that this is still the case even if the gentlemen subsequently sent her gifts of a far greater value than this minimum requirement. The Mishnah explains that the reason why these gifts do not help is because they were presumably sent to her under the assumption that the original transaction affected the kidushin. Consequently these gifts were sent simply as gifts and not for the purpose of kidushin.

A discussion in the Gemara ensues regarding the significance of gifts given prior to married. The Gemara concludes that in a place where in general gifts are given prior to kidushin, we are not concerned. However, in a place where gifts are given only after kidushin we are concerned.

The Rishonim debate the exact point of concern. Rashi explains that the Gemara is discussing a case where the couple have undergone shiduchin. Shiduchin refers to where the couple have agreed to marry but as yet have not even undergone kidushin. Today, we would commonly refer to it as engagement. During this period the man sent the woman these gifts⁵². Rashi explains that we are concerned having sent the gifts with two witnesses, he intended that the gifts would be for the purpose of kidushin. Consequently if someone else consequently performs kidushin, we are concerned that kidushin might have been already performed by the original man by virtue of the gifts and thus we require a get from both men.

The Tosfot points out a difficulty in Rashi’s understanding, explaining that if a man gives a woman of a gift for the purpose of kidushin, they have to be engaged in discussion about getting married otherwise it is meaningless. The Ritva answers this difficulty, explaining that since they have already undergone shiduchin, part of the concern is that perhaps they agreed that he would send her a gift later for the purpose of kidushin.

Nonetheless the Tosfot provide a different explanation. They understand that since the prevalent custom in the area is that gifts are only sent after kidushin, the concern is that kidushin has already been performed at an earlier date. Furthermore, the Ritva explains that the lack of witnesses does not abate our concern, as the witnesses may have since traveled overseas. The Rambam who understands similarly explains that in such a case, despite the fact that the prevalent custom is to send gifts after marriage, the requirement for a get is still only on the level of a doubt. The Haghot Maymoniyot explains that this is because we are also still concerned for the minority of that place who send gifts prior to marriage. The Ritva points out that according to this understanding, the concern is still present even if the gifts were not sent with witnesses.⁵³

One may ask, according to the Tosfot, why not simply ask him or her if they had already performed kidushin? To this the Mordechai explains that in this case the husband is arguing that kidushin was performed while the wife denies it.

In summary we have two understanding of the concern regarding gifts sent in a place where gift are not normally sent prior to kidushin. The first, Rashi’s, is that the gift itself may be an act of kidushin. The second, Tosfot’s, is that the gifts may be indicative that kidushin might have already been performed.

⁵² The Ritva explains that the case must refer to shiduchin, otherwise we would never be concerned that a man sending a single woman a gift would be for the purpose of kidushin.

⁵³ See the Ritva for further differences.

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