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Shabbat Parashat Noach | 5767

Moreshet Shaul

A Siyum on Massechet Kiddushin- part 2

 (based on Chavot Binyamin, siman 119)

 [Last time we examined the institutions of kiddushin and pilegesh and raised several issues. If Avraham had kiddushin with Hagar, she was forbidden as an Egyptian, and if not, she was forbidden for the lack of kiddushin. The Rambam said that a king may take a pilegesh without kiddushin but that other Jews may not. We wondered how the king could overcome the religious prohibition of relations without kiddushin and how the Rambam could say that a pilegesh is permitted to a non-king when it comes from the yi’ud of a Jewish maid-servant. Finally, the Rambam stresses that what makes kiddushin special is the fact that it requires witnesses, and we wondered why the witnesses were considered such a central point.]

The Rambam apparently understands that the important thing that comes from kiddushin is that the woman is set aside for one man alone. The main contributor to that situation is the fact that there are witnesses, which turns the union into a fact known to the public. [Ed. note- It is not clear to me why an act of acquisition, which turns an object into the property of an individual, is less effective at setting it aside for him if there were not witnesses present.] Therefore, a pilegesh is not bound to her “husband” in that manner, and there is little preventing her from leaving him. Despite their understanding in the meantime that she is set aside for him, their relationship is still a haphazard one which is a form of z’nut (promiscuity) which was forbidden when the Torah was given.

However, if it were possible to create a relationship where the woman was bound to the man, even if it was without formal kiddushin, cohabitation would be permitted. Since the Rambam says that women could be taken for the king from throughout the land, it follows that they could not just get up and leave him. (Note that other people are not allowed to even use the servants of the king.) Since the king can make a woman off limits to others without kiddushin, the Torah prohibition on pilegesh does not apply to him. Similarly, although the owner of a Jewish maid-servant can use yi’ud to create kiddushin, even if he wants to use it to create only pilegesh status, he may do so. She will be permitted to him because, as his maid-servant, he can make her off limits to others. In other cases, a man can only set her aside effectively with kiddushin and, in the absence thereof, relations would be deemed z’nut. (The gemara (Kiddushin 2b) comments that the term kiddushin is related to making the woman forbidden to everyone else like hekdesh.)

When the Rambam says that pilegesh is without kiddushin he is referring to the formal kiddushin which is accomplished by the three effective acts of acquisition (see Kiddushin 2a). However, it is true that if the effect of being off limits to others can be accomplished without kiddushin, one can arrive at a legitimate status of pilegesh who is permitted because she is quasi-mekudeshet. It is in the case of quasi-kiddushin that R. Yehuda and R. Meir discussed whether a pilegesh receives a ketuba or not. In a case where there was actual kiddushin, it is not possible to treat the woman like a pilegesh and consider depriving her of a ketuba.

Finally, we can similarly explain the status of Hagar. She did not receive kiddushin from Avraham and, therefore, there was no prohibition due to her being an Egyptian. However, since she was his maid-servant, she was off limits to others and permitted, even according to the rules in place after the giving of the Torah, as she was set aside for Avraham alone.

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