…Shimon ben-Shetaḥ came and ordained that all the husband's property be surety for payment of[his wife's] ketubah.
KETUBOT 82b
Recent years have seen the phenomenon of a veritable explosion in the publication of works on Halakhah. No doubt, the vast increase in such publications may be attributed in part to several secondary factors. In general, more books are now being sold than ever before. Computer typesetting has both speeded production and reduced costs, leading, at times, to hastily produced works of less than highest quality. The relative affluence of our society has resulted in ease of purchase and a vastly expanded marketplace. We live in an age of material acquisition. At a time that people are buying clothes, furnishings, gadgets, musical tapes and video cassettes with apparent abandon, it is not surprising to find many Jewish men and women of means purchasing new books as quickly as they are published. Jews, always known as the am ha-sefer, are now purchasing all manner of books and sefarim in large numbers. Primarily, however, the writing, publishing and purchase of Judaica and Hebraica reflect a pervasive "zama lekha nafshi," a thirst for Torah study and knowledge among all segments of the Jewish community.
A particular genre of writing has achieved a new measure of popularity. As this writer has noted elsewhere,1Contemporary Halakhic Problems, IV (New York, 1995), introduction, pp. xi–xii. the thirst for knowledge among members of the committed and observant community has spawned a plethora of publications, both in Hebrew and in the vernacular, devoted to matters of Halakhah. The reception greeting the appearance of these works reflects an ardent search, not only for knowledge of theoretical matters, but also for practical guidance and instruction. The past two decades or so have witnessed the appearance of an apparently never-ending series of monographs devoted to a single mizvah or even to a particular aspect of a mizvah. Since there are 613 biblical mizvot and innumerable rabbinic extensions, there is no shortage of fertile ground for research. Some of these volumes appear in the form of encyclopedic studies; others are brief and concise how-to books. Some are compilations of essays and responsa; others are cryptic restatements of Halakhah, usually accompanied by copious annotations.
To be sure, these publications are not of uniform quality. Nevertheless, in many, if not most, cases these compilations contain valuable material presented in a carefully organized manner with exquisite attention to comprehensive detail. At times, addition of charts, diagrams and pictures enhances the usefulness of the work as, for example, is the case with regard to several works on laws of the four species and a number of monographs devoted to sheḥitah and kashrut. In many instances multiple works have been published dealing with the same halakhic problems. Thus, no fewer than four volumes devoted to the mizvah of shiluaḥ haken (sending away the mother bird) have appeared. The number of works devoted to laws of usury and family purity are too numerous to count. Almost, but not quite, in that category are compendia devoted to the laws of marriage and, in particular, the marriage ceremony. A number of those works contain material illuminating several aspects of the preparation of the ketubah that have aroused curiosity but with regard to which precedents and sources were heretofore virtually unknown to rabbis and laymen alike.
I. Delivery of the Ketubah
In recent years a novel practice has arisen in some circles with regard to delivery of the ketubah to the bride. In the past, it was standard practice for the officiant, after reading the document, simply to hand the ketubah to the bride or, alternatively, to a member of the bride's family to hold on her behalf.2That practice is reflected in a statement of Knesset ha-Gedolah, Even ha-Ezer 66:8, who counsels that the ketubah not be given to the groom lest he fail to deliver it to the bride but that it be placed directly in the hand of the bride or of one of her relatives. It is now quite common for the officiant to give the ketubah to the groom and to direct him to deliver it to the bride3This practice may well have its origin in a consideration expressed by R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Even ha-Ezer, no. 49, who remarks that it is not seemly for the officiant to hand the ketubah to the bride. Levushei Mordekhai, however, suggests that the ketubah be given to the bride’s father or to another relative. and, moreover, to designate the individuals who served as attesting witnesses to the presentation of the ring to the bride to serve as well as witnesses to the delivery of the ketubah.
Both the source of this practice and its rationale are unclear. The most prominent contemporary reference to this practice is that of R. Moshe Sternbuch, Teshuvot ve-Hanhagot, II (Jerusalem, 5754), no. 650, who reports that this was the practice of the Brisker Rav, R. Yitzchak Ze'ev ha-Levi Soloveitchik. A number of informative references to this innovation are also made by R. Samuel Eliezer Stern in his recently published monograph, Seder Ketubah ke-Hilkhatah (Bnei Brak, 5753). Included in that work is a letter by R. Joseph Efratti in which he conveys the views of R. Joseph Shalom Eliashiv. The report states that Rabbi Eliashiv does not regard the practice to be mandated by Halakhah, but that he nevertheless conducts himself in that manner because such was the wont of the late R. Iser Zalman Meltzer.4See R. Samuel Eliezer Stern, Seder Ketubah ke-Hilkhatah (Bnei Brak, 5753), p. 163. See also the exchange of letters between R. Avraham Ya’akov Zelaznick and Rabbi Joseph Shalom Eliashiv published in Ẓohar, ed. R. Elyakim Dworkes, II (Jerusalem, 5758), 37–42.
Upon first analysis, the practice seems to be without foundation. There is indeed a tannaitic controversy with regard to whether halakhic instruments such as a bill of divorce or a deed acquire validity by virtue of the signatures of witnesses or by virtue of the presence of attesting witnesses at the delivery of the instrument. As is evident from the discussion of the Gemara, Gittin 3b, R. Meir maintains that the efficacy of such instruments is conditioned upon the signatures of witnesses while, according to R. Eleazar, the instrument is effective only by virtue of the presence of witnesses at the time of delivery. According to many authorities, R. Eleazar maintains that the signature of witnesses on a deed is discretionary and is designed solely for evidentiary purposes, i.e., in the event that the witnesses die or are otherwise not available to testify to their earlier presence at the time of delivery of the instrument, their signatures demonstrate that such was in fact the case. Signatures of witnesses are indeed required on a bill of divorce but, according to R. Eleazar, only by reason of rabbinic decree designed to promote "perfection of the world" (tikkun ha-olam), i.e., in order to assure that the divorcée will be able to prove her capacity to contract a subsequent marriage. However, Rambam, Hilkhot Geirushin 1:16, rules that the presence of witnesses at the time of delivery is not an absolute requirement5Cf., however, Tosafot, Gittin 4a, s.v. de-kaima lan. and accordingly declares that a bill of divorce is valid if it is either signed by witnesses or delivered in their presence. Nevertheless, Rambam also cites the view of "some of the Ge'onim" who ruled that the presence of witnesses at the time of delivery is an absolute requirement. Rambam's own position reflects the view that R. Eleazar recognizes that an instrument is validated either upon signature of witnesses or upon delivery in their presence.
That controversy is, however, limited to instruments that are performative in nature, e.g., bills of divorce whose execution serves to sever the matrimonial bonds or deeds that serve to effect transfer of title from the seller to the purchaser.6Cf. Tosafot, loc. cit., who assert that a deed is valid even according to R. Eleazar despite the absence of witnesses at the time of delivery since a signed deed is tantamount to acknowledgment by the seller that transfer of title has occurred. In matters effecting only property or financial obligations, a confession of judgment is accorded absolute credence even if it is known to be contrafactual. There is no controversy with regard to non-performative instruments such as promissory notes. The obligation to repay a debt is engendered simply by acceptance of the funds advanced; the promissory note is but a memorial of the debt and, as such, its purpose is entirely evidentiary in nature. Since the purpose of a promissory note is evidentiary, there is no need—and indeed no role—for witnesses at the time of delivery of such a writing. Execution of a ketubah generates no new obligation. The obligation with regard to the statutory sum recorded in the ketubah arises from the marriage itself; additional obligations are generated by delivery and acceptance of a kerchief. The ketubah is designed to serve only as evidence of the assumption of the various obligations recorded in the instrument.7R. Avraham Zelaznick, Ẓohar, II, 38, reports that R. Aaron Kotler explained that the purpose of delivery of the ketubah in the presence of witnesses is to make it possible for the bride to proceed against successors in title to real estate that may have been conveyed on the day of the wedding subsequent to the marriage ceremony. Ordinarily, attestation of witnesses to an instrument of indebtedness generates a lien only as of the close of the day recorded in the instrument since there is no evidence of execution, and hence no evidence of a prior lien, at an earlier hour. Witnesses to delivery of the instrument can establish that the lien was indeed generated at an earlier hour enabling the bride to seize property transferred after that time. Rabbi Eliashiv, ibid., p. 40, quite cogently counters that, even in a locale in which it is not the practice to draft a written ketubah, the financial obligation is actionable against subsequent purchasers upon the testimony of witnesses to the fact that a marriage has taken place. Rabbi Eliashiv points out that such testimony is available even if the witnesses do not observe the transfer of the ketubah. Since that evidentiary function is fulfilled by the witnesses who sign the document there appears to be no further reason to require the presence of witnesses at the time of delivery.8Rabbi Stern, Seder Ketubah ke-Hilkhatah, p. 139, suggests that witnesses to delivery of a ketubah are necessary in instances in which the instrument contains erasures or words written between lines. Since such irregularities may represent fraudulent alterations of the instrument, their presence generally invalidates an instrument unless the irregularities are noted and certified as authentic in an endorsement appended to the document itself. Bet Shmu’el, Even ha-Ezer 125:35, does indeed state that a get containing such a defect but delivered in the presence of witnesses is valid by virtue of the fact that there can be no fraud antecedent to, or contemporaneous with, delivery effected in the presence of the witnesses. That conclusion is entirely cogent with regard to a shetar kinyan, or performative instrument, such as a get, that need not necessarily also serve as evidence. It appears entirely irrelevant with regard to an evidentiary instrument such as a ketubah since the possibility of tampering with the document after its delivery remains a cogent concern. Hence, insofar as the probative value of the instrument is concerned, such defects cannot be cured by delivery in the presence of witnesses.
Rabbi Zelaznick (see supra, note 4) reports that R. Aaron Kotler explained that, since the signed instrument does not spell out the hour at which it was signed, it establishes a lien upon successors to real property only after the close of the day the ketubah is dated. Witnesses to the delivery, Rabbi Kotler allegedly contended, are needed to establish an immediate lien. Rabbi Eliashiv rebuts that contention arguing that such a claim would require the wife to produce the witnesses. If she were to be required to produce witnesses, a kinyan in the presence of witnesses would suffice and a written instrument would be rendered superfluous. The entire point of a written ketubah, argues Rabbi Eliashiv, is to eliminate the need for producing witnesses. If so, witnesses to the delivery are unnecessary.
Nevertheless, Rabbi Stern cites two very early sources that regard the ketubah as more than an evidentiary document reciting the groom's debt to his bride. A marriage need not necessarily be effected by means of presentation of a ring by the groom to the bride. It may also be effected by delivery of a properly executed document containing the formula "Be thou consecrated unto me etc." However, execution of such an instrument requires scrupulous adherence to myriad halakhic minutiae virtually identical to those surrounding execution of a bill of divorce. Presumably, it is because of the fact that the drafting and execution of the requisite instrument is as cumbersome as the execution of a bill of divorce that employment of an instrument (shetar) as a means of effecting a marriage is unheard of in our day and indeed may never have been widespread. Yet, judging from the contents of two geonic sources, the practice seems to have been common in at least some communities during the early post-talmudic period. In a responsum published in Teshuvot ha-Ge'onim, ed. Simchah Assaf (Jerusalem, 5787), no. 113, Rav Hai Ga'on decries use of a ring rather than a shetar as an innovation that should be abolished. In urging that a shetar be used for that purpose Rav Hai Ga'on writes:
You should know that you incur great detriment by virtue of your custom of betrothing a woman other than at the time of the ketubah or shetar of betrothal. … Such was previously unheard of in Babylonia; they have no knowledge of marriage other than at the time of the ketubah. Many years ago, more than a hundred years, there was a custom in Kurasan (Kurdistan?) to betroth by means of a ring at a banquet or the like. There were many allegations, allegations of denial that marriage took place, and the matter resulted in detriment. Our master and teacher, Yehudah Ga'on, promulgated an ordinance that they not betroth other than in accordance with the manner of Babylonia, [i.e.,] with a ketubah, signature of witnesses and the blessing of the betrothal, and that any marriage not solemnized in this manner should be disregarded. … You also should set aside this practice and anyone who betroths without a ketubah and a shetar of betrothal, punish him until he rectifies the matter.
The concern expressed by Rav Hai Ga'on seems to have been that, in the absence of the evidence supplied by a properly witnessed shetar of betrothal, it was relatively easy to deny that a marriage had actually occurred. The terminology of the ordinance ascribed to R. Yehudah Ga'on seems to indicate that the ketubah itself served as a shetar of betrothal.
The format of the wedding ceremony included in the siddur of R. Sa'adia Ga'on provides that the bridegroom declare to the bride that she is consecrated to him "with this goblet and with its contents and with this ketubah and with what is written therein" and further instructs the groom to take the ketubah in his hand, deliver it to the bride and declare, "Take the ketubah in your hands so that with it you enter my domain according to the law of Moses and Israel." Rabbi Stern asserts that R. Sa'adia Ga'on describes a ceremony in which two separate modes of betrothal are employed, i.e., presentation of a goblet as an object of value and delivery of the ketubah as a shetar kiddushin.9Actually, the words of R. Sa’adia Ga’on lend themselves to an alternative interpretation. Rabbi Stern himself reproduces a manuscript version of an early Palestinian ketubah which recites that “so-and-so betrothed so-and-so with one ring and two hundred zuzim … and added of his own to her betrothal so-many and so-many Constantinian gold coins.…” See Seder Ketubah ke-Hilkhatah, p. 252. The import of that declaration is quite clear: The two hundred zuzim to which the husband obligates himself constitute a debt. This version of the ketubah stipulates that incurrence of that debt in favor of the wife is also to be deemed part of the kesef kiddushin (money or its equivalent) presented to her for purposes of marriage. Accordingly, R. Sa’adia Ga’on’s phrase “with this ketubah and with what is written in it” may also be understood as a reference to the debt recorded in that instrument which, through that declaration, is converted into a portion of the kesef kiddushin.
Rabbi Sternbuch speaks of the “additional ketubah” (tosefet ketubah) voluntarily added by the groom, rather than the statutory two hundred zuzim, as constituting kesef kiddushin. He apparently assumes that the statutory sum, since it is mandated by law, does not constitute valid kesef kiddushin because it does not represent an object of value that would otherwise not be vested in the bride. That view is clearly not accepted by the anonymous draftsman of the “Palestinian ketubah,” apparently on the theory that the groom was under no legal compulsion to enter into the marriage and thereby assume the obligation of the two hundred zuzim. Thus, even the statutory sum of two hundred zuzim represents a gratuitous obligation on the part of the groom and may be converted into kesef kiddushin.
More fundamental, however, is the question of whether assumption of any obligation on the part of the groom, as distinct from actual delivery of an object of value, may serve as kesef kiddushin. That view is apparently the subject of controversy among early-day authorities and is analyzed at length by Keẓot ha-Ḥoshen 190:6.
Rabbi Stern also cites two somewhat later sources that speak of the ketubah as fulfilling a secondary role as a shetar kiddushin. R. Aaron of Lunel, Orḥot Hayyim, Hilkhot Ketubah, sec. 1, writes, "The groom takes the ketubah and gives it to the bride … for, if the earlier betrothal was not effective, the [betrothal] will be effective by means of shetar for thus is written in [the ketubah]: 'Be thou my wife in accordance with the law of Moses and Israel.' " Similarly, Teshuvot R. Eli ezer me-Trashkun, no. 56, writes that the phrase "Be thou my wife" endows the ketubah with the status of a shetar kiddushin with the effect that if, as at times is the case, a borrowed ring is used in the marriage ceremony the marriage is effected by means of shetar.
The thesis that a ketubah may also be effective as a shetar kiddushin (instrument of betrothal) is subject to a number of objections:
1. No transaction is valid without intent of the parties. Since neither the bride nor the groom have the vaguest notion that the ketubah is a shetar kiddushin, there is no reason to assume that they intend to effect a marriage through its delivery and acceptance. Moreover, the witnesses to delivery of the ketubah are not at all aware of the fact that they are witnessing an act of betrothal. Consequently, the purported marriage by means of shetar should fail for lack of attesting witnesses.
2. As is the case of a get, or a bill of divorce, which must be written for the express purpose of divorce (le-shem gerushin), a shetar kiddushin must be written for the express purpose of marriage. That rule is recorded by Rambam, Hilkhot Ishut 3:4, and by Shulḥan Arukh, Even ha-Ezer 32:1. In particular, the operative clause, "Be thou my wife," must be written by the scribe for the express purpose of generating a shetar kiddushin. Such intent on the part of the scribe is generally lacking; indeed the requirement of intent makes utilization of a printed form impossible. Since a printed ketubah cannot serve as a shetar kiddushin, delivery of that document in the presence of witnesses seems to serve no purpose. Moreover, Shulḥan Arukh, Even ha-Ezer 32:1, rules that a shetar kiddushin must be drafted with the prior knowledge of the bride. The bride certainly has no knowledge that the ketubah is drafted as a shetar kiddushin.
It is indeed the case that Or Sameaḥ, Hilkhot Ishut 3:4, cites a number of talmudic sources in suggesting that the requirement of intent (lishmah) pertaining to a shetar kiddushin is somewhat different from that pertaining to a bill of divorce. A get must be written for the specific purpose of divorce and, moreover, for the specific purpose of the divorce of a particular husband and wife. The same principle applies to a shetar kiddushin. Or Sameaḥ suggests, however, that a shetar kiddushin, unlike a get, may be valid even if there is no specific declaration of intent on the grounds that the requisite intent is to be presumed or imputed (setama lishmah ka'i).
Or Sameaḥ's thesis is based upon an examination of the regulations governing similar types of intent (lishmah) in entirely different areas of Halakhah. An analogous requirement of intent is specified with regard to the offering of sacrificial animals. The animal must be slaughtered with intent to offer the animal for the appropriate category of sacrifice and to offer the animal on behalf of the proper party. Nevertheless, provided there is no contradictory intent, the already sanctified animal is deemed to have been offered for its designated purpose and on behalf of its owner. The already sanctified animal is, in a sense, "preprogrammed" for a particular purpose and owner and, hence, constructive intent already exists. Such constructive intent is not imputed in the drafting of a bill of divorce. The distinction lies in the fact that women are not customarily divorced by their husbands and therefore actual intent is required.
Or Sameaḥ notes that the Sages of the Talmud assumed that it is normal and usual for a woman to marry. Hence, argues Or Sameaḥ, intent for marriage may be imputed constructively with the result that explicit intent to draft the instrument for purposes of marriage is not necessary. Or Sameaḥ himself expresses doubt with regard to the validity of that conclusion. Or Sameaḥ notes that it may indeed be normal and usual for a woman to marry, but not necessarily to marry the man named in the shetar kiddushin. Accordingly, there is no basis to impute constructive intent to draft the instrument as a shetar kiddushin for the particular parties named therein. Nevertheless, Rabbi Sternbuch tentatively suggests that, if the couple have previously bound themselves by articles of engagement subject to the penalty of ḥerem or excommunication for breach of promise, a presumption of intent does arise in the drafting of the shetar kiddushin and the presumption encompasses intent to draft the instrument on behalf of the particular parties. Rabbi Sternbuch reiterates this view in a letter addressed to Rabbi Stern that is included in the latter's Seder Ketubah ke-Hilkhatah, pp. 164-165. Against this thesis it may be argued that, since the scribe believes that he is writing a simple ketubah, that state of mind may be antithetical to intent for kiddushin. Moreover, the argument that the ketubah acquires the status of a shetar kiddushin because it is to be presumed that it is drafted for that purpose is cogent only with regard to a handwritten ketubah; in the case of a printed form there is no writer to whom intent can be imputed even constructively.
It seems to this writer that there exists yet another problem that requires analysis. Promissory notes and the like are customarily written in the past tense despite the fact that they are prepared in advance of the assumption of any obligation. Such instruments are contrafactual at the time they are drafted in the sense that they purport to memorialize an event that has as yet not occurred. Yet witnesses are permitted to sign such documents without incurring the onus of perjury. That is so because such documents must be delivered to the person bound thereby who will not be so foolhardy as to transfer the document to the person in whose favor it is executed unless and until the event generating the obligation described therein has actually occurred. Thus, in effect, the document contains an unstated condition upon which the testimony is predicated. In effect, the instrument must be construed as containing a provision declaring that if, and only if, the document is produced by the named beneficiary, his possession of the instrument will constitute evidence that it came into his possession in consideration of the transaction specified herein.10Cf., Rabbenu Nissim, Gittin, 86b, s.v. ve-hainu. Accordingly, such documents are drafted as statements of witnesses testifying to events that have already taken place because, when produced by the beneficiary, those events have indeed occurred. However, performative instruments such as a deed effecting transfer of real property or a bill of divorce are customarily written in the present tense, e.g., "my field is [hereby] sold to you" or "this is to you from me a bill of divorce." Instruments of that nature are couched in the present tense because they are designed to give effect to the sale or to the divorce and are not primarily intended as evidence of the event. Accordingly, they are drafted as performative statements of the seller or of the husband.
The ketubah does indeed record the groom's declaration "Be thou my wife etc." but does so only in the form of a recitation of the fact that a marriage has already taken place, i.e., as the event that gives rise to the financial obligations recorded in that document. Accordingly, it is recited as an integral element of the testimony of the witnesses rather than as a direct declaration of the groom. Thus, the phraseology is: "Thus said so-and-so, our groom… 'Be thou my wife according to the law of Moses of Israel,' " i.e., the witnesses testify that such a statement was made. It would be anticipated that a shetar kiddushin should consist of a written performative declaration by the groom addressed directly to the bride. It is not clear that a document recording a statement of third parties, i.e., the witnesses, presented as testimony to a past event can serve as a shetar kiddushin.
The practice of the groom himself delivering the ketubah to the bride is also reported by R. Shimon ben Ẓemaḥ Duran, Tashbaz, III, no. 301. Tashbaz, however, advances an entirely different reason for the practice. Tashbaz asserts that, according to Rif, the obligation of the "additional ketubah" (tosefet ketubah) voluntarily undertaken by the groom is not binding unless and until the ketubah is delivered to the bride. Rif maintains that a gift conveyed by deed is not effective until the deed is actually conveyed. Tashbaz asserts that the voluntary undertaking of the tosefet ketubah is in fact a gift and, hence, the same rule applies. However, as Rabbi Stern points out, the requirement that the instrument reach the hand of the beneficiary does not entail the further conclusion that such delivery must be in the presence of witnesses.11In his letter published in Ẓohar (see supra, note 4), Rabbi Eliashiv makes the same point with regard to Tashbaẓ’ statement. Tosafot, Gittin 4a, declare that, even according to R. Eleazar, witnesses need not be present at the delivery of a deed or of a financial instrument since in all financial matters mere acknowledgment on the part of the party adversely affected suffices. That acknowledgment is evidenced by the signatures of the witnesses appended to the instrument.
Rabbi Sternbuch, both in his Teshuvot ve-Hanhagot and in his letter to Rabbi Stern, advances yet another reason for seeking to have the groom himself deliver the ketubah to the bride in the presence of witnesses. On the basis of a discussion recorded in the Gemara, Kiddushin 48a, Bet Yosef, Even ha-Ezer 32, asserts that, in the event that a shetar kiddushin is found to be defective, the marriage may yet be valid on the basis of the intrinsic value of the paper upon which the shetar is written. Transfer of the shetar to the bride includes conveyance of title to the paper upon which it is drafted. The paper may thus serve as an object of value constituting kesef kiddushin. Accordingly, asserts Rabbi Sternbuch, in the event that a valid marriage was not previously effected by means of delivery of the ring, delivery of the ketubah in the presence of witnesses may also serve as a means of effecting a valid marriage on the basis of delivery of an object of value, viz., the paper upon which the ketubah is written. Since, according to this thesis, the ketubah does not function as a shetar kiddushin, but as a chattel, the document need not be drafted for purposes of marriage.
The premise upon which this suggestion is based is the subject of some dispute. Although Tosafot Rid, Kiddushin 3a, expresses a view similar to that of Bet Yosef, Rambam, Hilkhot Ishut 3:4, appears to disagree.12See Or Sameaḥ, ad locum. More significantly, there is a material difference between the ketubah and a shetar kiddushin with regard to potential capacity to function as chattel rather than as a shetar. Every kinyan requires accompanying intent of conveyance. That intent must be simultaneous with the act of kinyan. Thus, a person who performs an act of kinyan with regard to property that he erroneously believes already belongs to him does not acquire title thereby. Nevertheless, in delivering and accepting a defective shetar, both bride and groom intend to enter into a kinyan that effects a valid marriage. Accordingly, Tosafot Rid and Bet Yosef maintain that, since there was both intent for marriage and a valid kinyan in the form of delivery of chattel, the marriage is valid because intent and the act of kinyan are simultaneous. Although the intent was for the kinyan of shetar, rather than of kesef, those authorities maintain that there need not be intent for, or knowledge of, the particular kinyan that is efficacious. However, in the case of a defect in the delivery of a ring, the bride and groom, who are unaware of the defect, assume that they are already married. Accordingly, at the time of subsequent delivery of the ketubah, they have no reason to intend a new kinyan. Hence, since there is no intent for kinyan that is simultaneous with delivery of the paper upon which the ketubah is written, the conveyance of that paper fails as kesef kiddushin.
Even if the practice of the groom personally transmitting the ketubah to the bride serves no purpose, it might well be regarded as innocuous. That, however, is not the case. In a letter addressed to Rabbi Stern and published in his Seder Ketubah ke-Hilkhatah, p. 181, Rabbi Nathan Gestetner points out that immediately following the delivery of the ring the couple are man and wife. Accordingly, if the bride is a niddah, the restrictions against handing objects to one another become effective immediately. In such instances, those strictures would serve to prohibit the groom from delivering the ketubah to the bride. Assuredly, it is unseemly publicly to call attention to the status of the bride by insisting that some grooms deliver the ketubah to the bride while insisting that others do not.13Cf., however, the comments of Maharil cited by R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 139.
II. Writing "Ve-Kanina" before Kinyan Takes Place
The obligations recorded in the marriage contract, including the "additional ketubah" and the financial obligation for repayment of the nedunya or dowry, i.e., the funds and chattel brought to the marriage by the bride, are entered into by the groom by acceptance of a kerchief (sudar) presented to him on behalf of the bride. There are three distinct customs with regard to the execution of that kinyan: 1) The practice described as the "custom of Jerusalem" is for the kinyan to take place during the reading of the ketubah under the nuptial canopy during the course of the public reading of the document.14See R. Menachem Mendel Fakshar, Invei ha-Gefen (Jerusalem, 5745), I, 5:15. Cf., sources cited by R. Benjamin Adler, Ha-Nisu’in ke-Hilkhatam (Jerusalem, 5745), I, 11:164, notes 430–431. According to that practice, the text of the ketubah is read and upon reaching the word "ve-kanina" (we have entered into a kinyan) the reading is interrupted, a kerchief is presented to the groom and the witnesses affix their signatures to the document15R. Ya’akov Werdiger, Edut le-Yisra’el (Tel Aviv, 5737), p. 12, reports that the custom in Jerusalem is to present the kerchief to the groom upon reaching the word “ve-kanina” and for the witnesses to sign the ketubah upon the conclusion of the wedding ceremony. and only then is the reading of the ketubah resumed.16It seems appropriate to assume that the kinyan and signing take place before the reading of the word “ve-kanina” and the sources in which the practice is recorded are readily construed as reflecting that understanding. Indeed, Invei ha-Gefen, I, 5:15 reports that the custom in Jerusalem is to enter into the kinyan before the reading of the word “ve-kanina.” Nevertheless, R. Eliyahu Chaim Bar-Shalom, Mishpat ha-Ketubah (Jerusalem, 5758), I, 169, reports that it is the Sephardic practice to read the phrase “ve-kanina min he-ḥatan” before interrupting for the kinyan. R. Ya’akov Sha’ul Elishar, Teshuvot Simḥah le-Ish, Even ha-Ezer, p. 55b, somewhat ambiguously reports that it is the “custom of Jerusalem” to enter into the kinyan “at the end of the reading” of the ketubah. A variant practice is to execute the kinyan and sign the document at the conclusion of the ceremony, i.e., after the final blessing has been pronounced.17Cf., however, Shulḥan ha-Ezer 6:8, who, in effect, objects to this practice on the basis of the view that maintains that ḥuppah cannot take place so long as there exists any impediment to cohabitation. Absence of a ketubah constitutes an impediment to cohabitation.
It would appear that this practice is predicated upon the statement of Rambam, Hilkhot Ishut 10:7, who declares that “the ketubah should be written before entry into ḥuppah” and whose position, as recorded in Hilkhot Ishut 1:6, is that seclusion of the bride and groom after pronouncement of the nuptial blessings constitutes ḥuppah. Cf., Edut le-Yisra’el, p. 13. The prevalent custom, however, is to enter into the kinyan and to complete the drafting of the ketubah before commencement of the marriage ceremony. That practice is recorded by Mordekhai, Gittin, chap. 2, sec. 342; Teshuvot Maharam Minz, no. 109; and by Teshuvot Maharil, no. 13.18For a further discussion of these variant practices see R. Samuel Eliezer Stern, Seder Ketubah ke-Hilkhatah, pp. 71–80. Rabbi Stern quotes R. Samuel ha-Levi Woszner as expressing a preference for executing the ketubah before the wedding ceremony when the procedure may be done in a leisurely manner lest an irregularity occur if done in haste under the ḥuppah.
Many printed forms of the ketubah omit the word "ve-kanina." Others print the word but with an imperfectly formed kuf, i.e., without the stroke that forms the left portion of the letter, so that it may be inserted, and hence the word become cognitive, after the kinyan is actually performed. The concern reflected in this practice is "the appearance of a falsehood" (meḥazi ke-shikra), i.e., preparation of a statement declaring that kinyan has taken place at a time, when in fact it has not occurred, appears to be untruthful.19Since the kinyan is indeed executed prior to the signing of the document, the issue is only the appearance of untruthfulness. However, if kinyan is not executed before the witnesses append their signatures, R. Meir Arak, Minḥat Pittim, no. 67, rules that, since the kinyan is the essence of the document, the document is invalid.
The earliest explicit reference to this matter appears to be in the work of a fifteenth-century German authority, Teshuvot Maharam Minz, no. 109. Maharam Minz records that, properly speaking, not only should the ketubah be signed after delivery of the ring, but he further states that the words "ha-kol sharir ve-kayyam" (and everything is valid and confirmed), which constitute the last line of the ketubah, should not be written until after the ring has been presented by the groom to the bride since "to write the entire ketubah before the kinyan and before she has become his wife appears to be a falsehood (meḥazi ke-shikra)."20A similar observation with regard to writing the ketubah before executing the kinyan and before the wedding has been solemnized is made by R. Mordecai Jaffe, Levush, Even ha-Ezer 66:10. Maharam Minz regards completion of the ketubah as "appearing untruthful" for two reasons: 1) The bride is not yet a wife as is recited in the ketubah; 2) kinyan has not yet occurred. It is apparent that Maharam Minz was not specifically concerned with the writing of the word "ve-kanina." Maharam Minz apparently maintains so long as some part of the document is left incomplete there is no "appearance of falsehood" with regard to the obligations recited in that document. Maharam Minz himself concedes that the "majority of people" ignore this consideration and draft the ketubah before the ceremony. He suggests that they do so because weddings were customarily celebrated on Friday afternoon and there was reason to fear that the ceremony might be delayed until close to the onset of Shabbat. R. Ya'akov Yitzchak Newman, in comments published in Seder Ketubah ke-Hilkhatah, p. 171, observes that there may well be reason to ignore the "appearance of falsehood" with regard to the marital status of the bride since that could be corrected only by executing the ketubah after the marriage has already taken place, at which time there is cogent reason to be concerned that in the course of the festivities the matter may be overlooked. There is, however, no similar reason to ignore the "appearance of falsehood" with regard to the writing of the word "ve-kanina" and hence that word should preferably be written only after the kinyan is actually executed.
The fifteenth-century German authority, R. Israel Bruna, Teshuvot Mahari Bruna, no. 94, peremptorily dismisses the concerns raised by Maharam Minz on three grounds: 1) Documents designed to serve as evidence may be prepared in advance of the event memorialized. Thus, a promissory note may be prepared at the behest of the putative debtor and delivered to him in advance of the extension of a loan. 2) Moreover, a bill of divorce contains language declaring a woman to be free of the marital bonds and permitted to every man despite the fact that the divorce is of no effect until she receives the document. As explained in another context by Rabbenu Nissim, Gittin 86b, it is self-understood that the statements contained in such instruments are contrafactual in nature and designed to certify those matters to be true only when and if the instrument has passed into the possession of the named recipient.21See supra, note 9 and accompanying text. 3) The concluding statement of the relevant discussion of the Gemara, Ketubot 85a and Gittin 26b, is that, as a halakhic norm, we are not concerned (lo-ḥaishinan) with the appearance of untruthfulness. According to Mahari Bruna there is no objection whatsoever to completing the entire document and having the witnesses affix their signatures provided that kinyan is executed before the ketubah is presented to the bride.
The practice of writing the word "ve-kanina" before kinyan is actually executed is also recorded by R. Shimon ben Ẓemaḥ Duran, Tashbaz, III, no. 301, who remarks that the practice is perfectly acceptable so long as the kinyan is performed before the witnesses affix their signatures. Ritva, Ketubot 85a, similarly states that any document may be drafted before the events recited therein have occurred. Ritva adds that it is the "appearance of falsehood" in the writing of an instrument that is dismissed by the Gemara as being of no halakhic concern but that signing such a document renders it invalid for reasons of actual falsehood. In context, however, Ritva's statement refers to a declaration made by a Bet Din. Ritva's statement clearly does not apply to a promissory note or to a bill of divorce and hence may also not apply to a ketubah. Nevertheless, Rema, Even ha-Ezer 66:1, cites conflicting views with regard to whether or not it is proper for witnesses to sign the ketubah prior to actual execution of the kinyan. The permissive view is cited in the name of Mordekhai, Gittin, chap. 2, sec. 342, who does not offer an explanation similar to that of Mahari Bruna but states that since the parties "are engaging in that matter" there is no appearance of falsehood.22See Ḥelkat Meḥokek, Even ha-Ezer 66:9; Bi’ur ha-Gra, Even ha-Ezer 66:9; and Naḥalat Shivah 12:69.
The talmudic discussions presented in Ketubot 21b and 85a as well as in Gittin 26b focus upon the authentication of signatures by the Bet Din. A litigant has the power to challenge the validity of an instrument presented as evidence by alleging forgery and challenging the authenticity of the witnesses' signatures. That possibility can be obviated by the witnesses themselves appearing before Bet Din and acknowledging their signatures or by the Bet Din itself comparing the signatures of the witnesses with signatures on other documents already known to be authentic. The Bet Din then appends and signs an endorsement certifying the authenticity of the signatures. According to the vast majority of rabbinic scholars, the issue in the talmudic discussion is the propriety of the Bet Din writing the text of the endorsement in anticipation of hearing the relevant testimony but withholding their signatures until such testimony has been presented and accepted. The issue is the propriety of the Bet Din committing a matter to writing that gives rise to an "appearance of falsehood," and whether, if improperly committed to writing, such authentication should be recognized. Shulḥan Arukh, Hoshen Mishpat 46:24, records conflicting opinions regarding the matter. The authorities cited differ in their assessment of the conclusion actually recorded in the talmudic discussions.
However, Shakh, Hoshen Mishpat 46:59 and Hoshen Mishpat 39:38, advances a quite different view of the controversy recorded in Shulḥan Arukh. According to Shakh, there is no dispute at all with regard to the writing of the endorsement by the Bet Din prior to hearing testimony. The dispute, according to Shakh, is with regard to whether the certification may be signed in advance and the document retained by the Bet Din until the authenticating evidence is presented. According to Shakh, no authority entertains the notion that an unsigned writing can be construed as a falsehood.23However, Shakh, Ḥoshen Mishpat 48:1, rules in accordance with the view of Rashi that, even in a promissory note, the names of the lender and borrower, the date and the sum of the loan may not be filled in in advance. Rashi asserts that recording such matters in anticipation of the transaction is prohibited by rabbinic decree because, were similar information written by a scribe in anticipation of utilizing the document as a bill of divorce, the divorce would be invalid by virtue of biblical law. If so, it might seem that, even according to Shakh, that information may not be inserted in the ketubah before the kinyan. See Shulḥan ha-Ezer 6:8. Shakh’s comments are, however, not at all relevant to the writing of ve-kanina. Moreover, Tumim 48:1, Netivot ha-Mishpat 48:1 and Arukh ha-Shulḥan, Ḥoshen Mishpat 48:1, rule contra the position of Shakh. See also Iggerot Mosheh, Even ha-Ezer, I, no. 178, who totally ignores Shakh’s position. Moreover, Netivot ha-Mishpat comments that, even according to Shakh, such information may be recorded in advance with the knowledge and acquiescence of the borrower, presumably since a bill of divorce drafted with the knowledge of the husband is obviously valid. Hence, even according to Shakh, those spaces may be filled in with the acquiescence of the groom prior to entering into kinyan. Cf., R. Samuel ha-Levi Woszner who, in a letter published in Seder Ketubah ke-Hilkhatah, p. 154, and R. Moshe Greineman, Imrei Yosher, likkutim, no. 20, surprisingly seem to assume that Rashi and Shakh were concerned with “appearance of falsehood.” That is not the case and, were it to be so, would be contradicted by Shakh’s own statements in Ḥoshen Mishpat 39:38 and 46:59. See R. Benjamin Silber, Oz Nidberu, IX, no. 56, and Mishpat ha-Ketubah, I, 170.
All authorities agree that the normative rule is in accordance with the first opinion cited by Shulḥan Arukh, viz., the position that the "appearance of falsehood" is not a matter of concern. Thus, for most commentators, the writing may be prepared by the Bet Din—albeit it may not be signed—before testimony is heard while, according to Shakh, the document may even be signed in advance. Moreover, virtually all authorities agree that the controversy regarding concern over the "appearance of falsehood" is limited to documents issued by a Bet Din. A Bet Din is duty bound to avoid any taint of unscrupulousness in order not to bring disrespect upon the judiciary whereas private individuals are under no such constraint.
The sole authority who expresses a different view is R. Issac of Dampierre recorded in Tosafot, Ketubot 21b. That authority draws no distinction between writings of a Bet Din and writings of a private individual and rules that it is forbidden to draft such documents although, if drafted, such documents are valid. However, Tosafot, Gittin 26a, s.v. R. Eleazar, indicates that, if there is indeed a concern for the "appearance of falsehood," the names of the borrower and lender, the date and amount of the obligation may not be written until the obligation is actually assumed. Thus, if, in deference to the opinion of R. Issac of Dampierre, "ve-kanina" were to be omitted until kinyan is actually performed, it would also be necessary to delay filling in the names of the bride and groom, the date and the amount of the obligation.
It is thus not at all surprising that a number of contemporary scholars, including R. Benjamin Silber, Oz Nidberu, IX, no. 56, and R. Samuel Eliezer Stern, Seder Ketubah ke-Hilkhatah, p. 172, see no reason to delay writing the word "ve-kanina" until after kinyan is executed. R. Samuel ha-Levi Woszner, Seder Ketubah ke-Hilkhatah, p. 154, regards the practice of omitting the word to represent, at best, "an enhancement and stringency," whereas Rabbi Stern prefers that the word "ve-kanina" be incorporated in the printed forms in order to minimize the potential for inadvertent omissions or error.24R. Joseph Shalom Eliashiv, in a letter appearing in Koveẓ al Yad, no. 10, notes that omission of the word “ve-kanina” does not invalidate the ketubah since kinyan itself is not an absolute requirement. See Rema, Even ha-Ezer, 66:1 and Bi’ur ha-Gra, Even ha-Ezer 66:9. Rabbi Eliashiv further opines that the words “The groom has accepted upon himself etc.” constitute acknowledgment of kinyan and, moreover, Shulḥan Arukh, Even ha-Ezer 66:8, rules that the marriage itself binds the groom to all orally stipulated undertakings. It should, however, be noted that R. Shlomoh Kluger, Ha-Elef Lekha Shlomoh, no. 139, states that omission of kinyan serves to invalidate the ketubah because of lack of reliance on the part of the bride.
Conversely, R. Meir Arak, Minḥat Pittim, Even ha-Ezer, no. 66, citing Rema mi-Panu, rules that, if “ve-kanina” is written but kinyan is not actually performed, the ketubah is invalid. That ruling is somewhat problematic since, according to Shulḥan Arukh, Even ha-Ezer 66:8, kinyan is not necessary and hence recitation of kinyan, even if it did not take place, should be innocuous. Although Rema, in a gloss appended to that ruling, does state that “some disagree” and require kinyan, Ḥelkat Meḥokek 66:34 reports that he could not identify the source of this divergent opinion. See also Bi’ur ha-Gra, Even ha-Ezer 66:31. [In point of fact, Teshuvot Rema mi-Panu, no. 65, states only that a ketubah prepared and dated during the day that includes the word “ve-kanina” but with actual kinyan delayed until nightfall is invalid by virtue of the obvious predating of the instrument.] R. Nissim Karelitz explains that, absent the word “ve-kanina,” the ketubah generates a lien against all property only from the end of the day on which it is signed whereas, if kinyan is undertaken and recorded in the instrument, the lien is generated as of the moment that the witnesses affix their signatures. Thus, false recitation of kinyan may lead to unlawful execution of the ketubah against the successor to title who purchases real property from the groom after execution of the ketubah but before the end of the day. See Mishpat ha-Ketubah, II, 461.
R. Judah Kelemer, Tosefet Ketubah (Jerusalem, 5750), p. 60, suggests another reason for entering into kinyan with regard to the ketubah. According to the regulations formulated by the Sages of the Talmud, a woman may attach only real property for satisfaction of the sum stipulated by the ketubah. The right to seize chattel for payment of the ketubah arises from a later edict promulgated by the Ge’onim. Nevertheless, Rambam, Hilkhot Ishut 16:8, declares that that right cannot be exercised unless is is recited in the ketubah. Rabbi Kelemer argues that, since chattel cannot be conveyed by deed, kinyan is necessary in order to convey a lien against chattel. Accordingly, it might be argued that since, in the absence of kinyan, no lien against chattel is created, recitation in the ketubah of kinyan that has not been effected would create a fraudulent lien against chattel.
However, such a conclusion would be widely disputed. Many authorities maintain that, with the undisputed acceptance of the edict of the Ge’onim subsequent to the time of Rambam, no specific understanding is required in order to generate a lien against chattel. Others maintain that, in our day, since commercial dealings are commonly in chattel, chattel, for us, has the same status as real property did in the days of the Gemara and, hence, even absent the edict of the Ge’onim, the ketubah is actionable against chattel. See Bet Shmu’el, Even ha-Ezer 100:1.