Eduyos Chapter 4, Mishnah 7. We continue with the disputes between Beis Shammai and Beis Hillel in cases where Beis Shammai are lenient and Beis Hillel are stringent. Our mishnah contains three separate disputes, all of them concerning the processes of marriage and divorce.
Kesef Kiddushin (Money of Betrothal):
The first part of the mishnah deals with creating the marriage bond by means of money of betrothal, and it echoes what is stated in the opening mishnah of Maseches Kiddushin. Marriage under Torah law takes place in two distinct stages:
Kiddushin (betrothal) - marriage from the legal standpoint.
Nisuin (marriage) - marriage from the functional standpoint, actually living together.
The meaning of kiddushin is that the woman is set apart, and she is a married woman in the sense that she is forbidden to every other man. A woman has certain rights: who is permitted to be her husband and to live with her as his wife, and it is up to her to grant those rights to whomever she wishes. Once she has transferred them to a particular man, she becomes forbidden to every other man, for they cannot receive those rights and cannot live with her. One who has relations with her has committed the sin of adultery with a married woman, an offense that in principle carries the death penalty. And if she wishes to marry another, she needs a get or her husband's death. Although they are married legally, they are not married functionally and do not live together, and they are even forbidden by rabbinic law to live together until they receive the berachos and the chuppah takes place, which itself expresses their shared life as husband and wife.
In the first stage, kiddushin, a transfer of the rights of marriage takes place. In Jewish law, every transfer of rights - ownership, other rights, or obligations - requires a formal act that effects the transfer, and this is called a kinyan, or more precisely, an act of kinyan. Even so, a woman who receives money of betrothal that effects the kinyan of kiddushin is not acquired the way one acquires an object in a store. She remains an autonomous person in every sense; she has simply transferred these rights to another person. The husband does not acquire the woman in any way, but he does become the exclusive owner of the right to be her husband.
An act of kinyan is found in other contexts as well: in appointing an agent, or in accepting responsibility for an obligation such as the conditions of a marriage. The common practice is for a person to lift a handkerchief, a pen, or a yarmulke, and this is a declaration: "I formally accept the kinyan, I transfer the rights and I carry out the transaction." This has nothing to do with ownership of the object; it is simply a mechanism for transferring rights.
The mishnah in Kiddushin lists three acts of kinyan through which this transfer takes place, and each of them must be done in a clear manner in order to activate the transfer. The man says "Harei at mekudeshes li" - "Behold you are betrothed to me" - with a ring that he gives or with something of monetary value, the woman accepts the money or the item of value, and from that point she is betrothed - a married woman, and the husband holds the rights of marriage.
One of the three ways of transferring the rights of marriage is with money or with something worth money, meaning in exchange for value: money means currency, a means of storing value; something worth money means an item that has value. The custom today is to use an item of value, namely a ring, but one may use an actual coin or any object of value. Just as the pen or the yarmulke is not the essence but merely a mechanism, so too the essence is not the ring or the money themselves: anything is valid for this, provided that the woman formally accepts the item of value and in return transfers those rights. As long as it is money or something worth money, it works.
The basis for this is derived from verses: Avraham Avinu purchased the burial plot for Sarah from Efron the Hittite, and the language of Scripture there is "kach mimeni" - "take it from me" - the language of taking. And regarding the mitzvah of kiddushin it says "ki yikach ish ishah" - "when a man takes a woman" - also the language of taking. A gezeirah shavah links the two and teaches that one of the legal mechanisms that effects kiddushin is money, currency, or something worth money, an item of value.
Since anything of value suffices, the amount should make no difference, and by Torah law even the smallest coin, called a perutah, would be effective. However, Beis Shammai hold that one must not create the impression that Jewish women are cheaply available, and one must not treat them lightly by betrothing them with something that has no value or almost no value; something of at least reasonably significant value is required. Therefore, regarding the question of how much money or how much value must pass from hand to hand in order to effect the betrothal of marriage:
Beis Hillel: any amount suffices, even a perutah or the value of a perutah, the perutah being the smallest coin.
Beis Shammai: a dinar or the value of a dinar, which is worth 192 times a perutah. This is not a large sum, but not just anything will do.
The perutah itself is a copper coin, but its value, as the Mishnah will explain, amounts to no more than the worth of a single half grain of barley of silver, while a dinar is worth 92 grains of silver.
In the words of the Mishnah: "HaIshah miskadeshes b'dinar uv'shaveh dinar k'divrei Beis Shammai" - according to Beis Shammai, one who wishes to effect kiddushin must use something of significant value, a dinar coin or something worth a dinar, and without that she is not betrothed. This is the lenient view. In contrast, "Beis Hillel omrim b'perutah uv'shaveh perutah" - a simple perutah is enough.
The reasoning of Beis Hillel: any coin and any value works, since even the smallest coin, the equivalent of an American penny, is money like any other money. And even Beis Hillel agree that one may not go below the amount of a perutah: if a perutah buys two gumballs, one gumball is not enough; but anything worth a perutah or more is valid for kiddushin.
It turns out that the view of Beis Hillel is the stringent one: if a man gives a woman a single perutah and says "Behold you are betrothed to me with this perutah," and she accepts it, according to Beis Hillel she requires a get, and one who lives with her has lived with a married woman. Beis Shammai are lenient and say that this is no marriage at all, she is permitted to marry someone else, and the act has no consequences.
"V'chamah hi perutah? Echad mishmonah b'issar ha'Italki" - one eighth of a very small silver coin called an Italian issar, which is worth four barley grain weights of silver; one eighth of that is a half grain. This is the first case in the Mishnah.
An Old Get:
The second case in the Mishnah is an entirely new subject, and its source is in Maseches Gittin, chapter two, mishnah 4: the law of a 'get yashan,' an old get. The get is the bill of divorce that a man must give his wife in order to sever their marriage bond, and a 'get yashan' is an outdated get, one whose date precedes the last time the husband and wife were alone together.
The idea is that once the decision to give a get has been made, the husband and wife no longer need to be secluded together. The concern is that the get will predate the last time they were together, and years can even pass: the husband writes a get in the first year and does not hand it to his wife, in the second year she gives birth to a baby, and in the third year he hands her that same old get. The date of the get and its signatures are from before the first year, and in time to come people will say: the child was born after the date of the get, so he was born outside of marriage. This is what is called a blemish, a stain on his lineage, and no more than that. In fact nothing happened, since the child was born within the marriage; it is only the documentation that creates the appearance that the child was born outside of marriage, or that the woman was not married when she conceived, and that is not becoming.
In order to prevent this impression, and so as not to harm the child's marriage prospects later in life, it was said that l'chatchilah there is a rabbinic law: even though an old get is in principle valid as a get, in practice, if it is dated before the last time they lived together, it should not be used - at least according to Beis Hillel, who are concerned that a baby may be born after that date, or at least within nine months of it.
And the language of the Mishnah: "Beis Shammai omrim poter hu es ishto b'get yashan" - according to Beis Shammai one may use an outdated get, a get that was written and dated even before the last time they lived together, and we are not concerned that she may conceive afterward. "U'Veis Hillel omrim" - one may not do so. And the Mishnah defines: "Ei zehu get yashan? Kol shenisyached imah achar shekesavo lah" - any get whose date precedes the last time they were secluded together.
To understand the root of the dispute, Beis Shammai and Beis Hillel also disagree about when it is permitted to give a get, and this is part of the reason that Beis Shammai are not concerned:
Beis Shammai: It is not proper to give one's wife a get unless he has found in her "ervas davar," something improper suggesting that she was unfaithful or that she is inclined in that direction. And since the woman dresses and behaves as one who seeks to live with another man, the husband finds her somewhat repellent and wants no relationship with her at all, and therefore he rightly gives her a get. He is no longer interested in her, because he finds her disgraceful.
Beis Hillel: It is permitted to give a get for far lighter reasons, even if she simply does not do things the way he wants: she burned the breakfast, the bread, or his food, and the like. Such a reason, which is no great reason at all, is enough to divorce her.
Therefore, Beis Hillel have grounds for concern: a man says, "You burned my supper for the last time, that is the straw that broke the camel's back," and he writes a get; afterward he makes peace with his wife, never hands her the get, and they live together for several years and even have a baby; and finally, when she burns another supper, he says, "Now this is the last straw," and hands her the get. Beis Hillel consider it reasonable to worry that a baby will be born in the meantime, or that she will become pregnant in the meantime. Beis Shammai, on the other hand, hold that a man who writes a get wants no further relationship with his wife, period, and therefore they will not have children afterward. That is what stands at the root of the dispute.
The halachah, of course, follows Beis Hillel: one may not use an old get. After the fact, though, if it was used - it is valid. The commentaries discuss whether there is a practical difference in a case where the husband is out of town and there is no way to obtain a new get from him, since otherwise we require him to write a new get, as long as that is possible.
Seclusion after divorce:
The last case in the Mishnah deals with a man who divorced his wife, and now they are a divorced couple, except that afterward they had to travel somewhere for some reason, and they lodged together at an inn and were secluded together, and there are witnesses to the seclusion. The question is whether she needs a second get from him.
The basis of the concern: since they were married before, and now they are once again staying together in one room, we should assume that they have gone back to behaving as husband and wife. True, being married requires two witnesses, but since we do have two witnesses to the seclusion at the inn, perhaps it is safe to assume that they went back to living together as husband and wife.
And there is a further assumption here: if a man and a woman lie together, surely a person wants to do things properly, in a way of holiness, and would want the act to be effective in renewing the marriage. And as was mentioned earlier, cohabitation itself is one of the ways to betroth a woman, exactly like money. Therefore, if it is safe to assume that they slept together, it is safe to assume that he intended it for the sake of kiddushin, and consequently it is safe to assume that they are married again - and if she wants to marry someone else, she will need a new get. This is the view of Beis Hillel, and at the very least, as a matter of halachah, we are concerned out of doubt that they were together again, and out of doubt she will need a new get if she wants to marry another man.
Beis Shammai disagree: even if they were alone in a room all night, who says anything more than that happened? There are no witnesses. The witnesses saw them enter the room, and that is not enough. Therefore they are not married, there is no reason to assume that they slept together, there is no reason to assume that they are married, and no second get is needed.
In the words of the Mishnah: "Hamegaresh es ishto velanah imo bepundak" - a man who divorced his wife, and afterward she lodged with him at some inn. "Beis Shammai omrim, einah tzerichah mimenu get sheni" - even if we know that they shared a room together, who says they slept together, and therefore there is no reason to think that they are married. "Beis Hillel omrim, tzerichah mimenu get sheni" - now a second get is required, for if they shared a room together in private we assume that they slept together, and if they slept together we assume that they wanted it to take effect as kiddushin; therefore we must assume, at the very least out of doubt, that she is a married woman.
And the Mishnah adds one condition: "Eimasai? Bizman shegirshah min hanisuin" - when they were actually married, lived as husband and wife, and then were divorced, in which case Beis Hillel assume that they returned to their old ways. "Aval im girshah min ha'eirusin - einah tzerichah mimenu get sheni, mipnei she'ein libo gas bah" - if they were never actually married but only legally married, eirusin like the kiddushin in the first part of the Mishnah: he gave her a ring, and that very same day he divorced her, and they never lived together. We cannot assume that he is familiar enough with her to the point that they would live together merely because they happened to be staying at the same inn for the night, since they never lived together as husband and wife, and they have no old ways to return to. Just as when a man and a woman happen to be secluded together at any given time, we do not automatically assume that they are married; but if they had been married before, we assume that they intended to renew the marriage.
And therefore, according to Beis Hillel a new get is required, and so is the halachah in practice: she will need a new get out of doubt, lest they became married again, if she is going to marry another man.
In summary: this Mishnah contains three disputes in which Beis Shammai are lenient and Beis Hillel are stringent: the amount of money for kiddushin - a perutah or the value of a perutah according to Beis Hillel, as opposed to a dinar or the value of a dinar according to Beis Shammai; an old get, one whose date precedes the last time they were secluded together - which Beis Hillel forbid at the outset out of concern for a blemish on a child born after the date, while Beis Shammai permit it; and a woman who is secluded with her husband after he divorced her from marriage - where according to Beis Hillel she needs a second get, and according to Beis Shammai she does not. And the halachah, as usual, follows Beis Hillel.