Reuven and Rivka have been happily married for the past five years.
Recently, Rivka's golden wedding band that she had received from Reuven
under the Chuppah chipped. Reuven brought it to a jeweler. The jeweler
looked at it and told Reuven that the ring was in fact highly polished
brass, and not gold.
Do we now say that since Rivka thought she was receiving a gold ring at
the time of her marriage that was more expensive than the brass ring that
she actually did receive, their marriage is void and they must go through
the marriage ceremony again, or do we say that despite this, the original
Kiddushin was effective?
It appears that the original Kiddushin is not void and there is no need
to go through another ceremony. See our discussion below.
There are actually two separate issues that must be discussed here. The
first is whether the fact that the wife thought she was receiving gold
and did not, affects the entire marriage "transaction". The second is the
ownership of the husband. If he actually thought that he was purchasing a
gold ring from the original jeweler, and he was misled, perhaps
that transaction is null and void. If so, even if we might argue that
the wife really did not care that the ring be gold, the ring never
belonged to the husband in first place, in which case the marriage would
be void anyway.
The exact situation that we discuss in our question is actually discussed
by the Mordechai (Kiddushin Siman 488), and the Hagaos Maimonios (in his
Pirush at the end of Sefer Noshim in the Mishna Torah, Simanim 19- 20).
Both conclude that the marriage is effective. The reason given for this
is, since the husband does not say "Be married to me with this _gold_
ring!", he merely says "Be married to me with this ring!", we do not say
that she entered the marriage under erroneous circumstances. Although it
is likely that she thought that the ring was gold, and even if she were
to argue that she never would have agreed to marry him had she known that
the ring was not gold, we apply here the famous Halachic principle of
"Devarim She'Bilaiv Lo Havi Devarim", matters of the heart, i.e.
conditions that were unspoken, are not to be considered. Therefore, both
the Hagaos Maimonios and the Mordechai state that such a marriage may not
be voided. The Maharam MiRottenberg in his Teshuvos (Siman 107) agrees
with their decision.
However, the Teshuvas HaTashbatz (Vol. 1 Siman 130) is uncertain about
this. He argues that perhaps since it is customary to always use a gold
ring, and this ring had the appearance of being of gold, it should be
considered as if the husband had explicitly stated "Be married to me with
this gold ring!"
However, it appears that today this should really not be much of a
concern. The custom is that under the Chuppah, before the husband gives
the ring to the Kallah, the Rabbi (Misader Kiddushin) asks the witnesses
in the presence of the Kallah whether, in their opinion, the ring is
worth a Perutah, the minimum amount necessary for the marriage to be
effective. The Rema in Even HaEzer (31:2) directs us to do this. This is
so that the Kallah should know that her husband is only marrying her with
one Perutah of the value of the ring, and the remaining value is a
present. It follows, therefore, that if the ring were to be found fake,
it should not affect the marriage. As long as there was a Peruta of value
in this ring, she may not argue that the marriage was under an erroneous
assumption. She may say that she thought her _present_, i.e. the
additional amount above the value of a Perutah, had more value than it
actually did, but in no way should this affect the marriage.
Regarding the second issue that we mentioned, i.e. the ownership of the
husband, the Teshuvos Maimonios (ibid. 19) states that although the
husband thought he was purchasing a gold ring from the jeweler and it was
found to be fake, the sale is effective and the marriage is valid. He
does not seem to make a distinction as to whether or not the husband is
presently arguing that the sale should be voided. However, the Mordechai
in Bava Metzia (Simanim 258-260) seems to take the opposite position,
that in a situation of a sale under erroneous pretenses, the sale is
considered null and void even if the customer is arguing that he wants it
to be effective. This opinion is quoted by the Rema (Choshen Mishpat
232:18) as the Halacha. The reasoning for this is simple and logical. the
customer thought that he was acquiring a gold ring, and it turns out that
this is not what he actually made a Kinyan (act of acquisition) on.
Consequently, although he and the seller may want it to be his, there is
no reason why it should be, until a valid Kinyan has been made on the
item that he thinks that he is purchasing. In our case, it would follow
that he has married his bride with a ring that is not his, and the
marriage should not be effective!
However, perhaps we may reconcile the two opinions of the Mordechai as
follows. When someone purchases a ring for it's own use, or for
investment purposes, there is no question that if it was done under
erroneous circumstances the sale is void. In our case, the purpose of
purchasing the ring was to enable the husband to marry his wife in an
effective manner. Although he requested from the jeweler a gold ring, and
most definitely would not have purchased this one had he known that it
was actually polished brass, his intention at the time of the acquisition
of the ring was that he acquire it in any way necessary that it become
his, so that he may effect a valid, lasting, marriage with his wife. In
other words, we assume that his intention is that even if after some time
it would be found that there was a technical problem with this
acquisition that may affect his marriage that he is presently unaware of,
he agrees that the acquisition be effective anyway at this time, i.e.
even if the ring were ultimately to be found to be of brass. This is
because the sole reason for purchasing this item is not simply to have
ownership of it, but to effect his marriage. Consequently, even if the
husband would be presently protesting that the original purchase should
be voided, we say that this is a new development, that he has changed his
mind. At the time of the sale his intention was to go through with it no
matter what would be found later
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
Column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his permission
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
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presence of all parties involved!